Pradeep Anoop Trust vs Shri A.K. Burman
1998 Latest Caselaw 706 Del

JUDGMENT

C.M. Nayar, J.

1. The present petition is directed against the judgment dated January 4,1996 passed by Shri R.K.Gauba, Additional Rent Controller, Delhi.

2. The brief facts of the case are that the petitioner Pradeep Anoop Trust filed two petitions simultaneously against the tenants in occupation of different portions of property No.D-41, defense Colony, New Delhi. The allegations in the petition are that the tenancy was created for residential purposes and while the petition against A.K.Burman sought an order of eviction on the ground under Section 14(1)(e) of Delhi Rent Control Act (hereinafter referred to as 'the Act'), similar order was being prayed against the tenant in the other case i.e. Dr.Suresh Gupta and Dr.(Mrs) Madhu Gupta on the grounds as available in Section 14(1)(e),(c), (b) and (h) of the Act. The two petitions were preferred in the name of Pradeep Anoop Trust through O.P.Jhalani Trustee shown as resident of 106, Sunder Nagar,New Delhi. The petitions have been signed and verified in both the cases by said O.P.Jhalani apparently claiming himself to be Trustee of the petitioner. It is not in dispute that the tenancy in favour of the respondent in each of the cases had been created on November 1, 1979 and June 1, 1975 respectively. The respondents in the second case did not specifically deny the relationship of landlord and tenant though the ownership of the petitioner in respect of the suit property was disputed besides the plea of denial that O.P.Jhalani was Trustee or had authority to file the petition.

3. In the first case which is the subject matter of the present petition, a plea was taken that the petitioner Trust had extinguished by efflux of time. Leave to contest was granted in this case on October 27, 1986 to the respondents to facilitate a contest which was conceded to on behalf of the petitioner. After pleadings had been completed in the said case, O.P.Jhalani was examined as AW1 and Pradeep Jhalani one of the beneficiaries of petitioner Trust as AW2. In the second case, after pleadings had been completed the said two witnesses were examined in similar manner. The questions which arose for consideration before the Additional Rent Controller were raised for the first time in the second case i.e. against Suresh Gupta and another by way of an application under Order 6 Rule 17 CPC moved by the respondents on September 1, 1994 by which the said respondents referring to the Trust Deed which had been proved as Exhibit AW1/1 by AW1 O.P.Jhalani an additional preliminary objection was sought to be taken to the effect that the said Trust had become extinct and stood terminated on the two beneficiaries having attained the age of majority. An objection, therefore, was taken to the effect that on extinguishment of the Trust the Trustee stood automatically discharged and the property of the Trust stood vested in the two beneficiaries, namely, Pradeep Kumar Jhalani and Anoop Kumar Jhalani in equal shares and the petition in the absence of these persons was not maintainable. The petitioner thereafter moved an application for amendment of the petition itself. By way of this application preferred on January 23, 1995 permission was sought to implead Om Prakash Jhalani, Pradeep Kumar Jhalani and Anoop Kumar Jhalani as petitioners 2 to 4 in addition to the original petitioner. The petitioners also sought an amendment of paragraph 18(a) of the petition so as to incorporate pleas to the effect that the property in question had been purchased by the original petitioner Trust by means of Sale Deed dated March 29, 1965 which was duly registered and as per Trust Deed dated March 31,1959 the three Trustees were appointed, namely, Smt.Ganga Devi, Om Parkash Jhalani and Smt.Shanti Jhalani out of whom first and third Trustees died on December 16, 1969 and October 21,1976 leaving Om Prakash Jhalani as the sole Trustee to manage the affairs of the Trust. It was further sought to be admitted that Pradeep Jhalani and Anoop Jhalani were owners of the suit property by virtue of various covenants of the Trust Deed dated March 31, 1959. These are proposed amendments with regard to realisation of rent by the petitioner Trust and Om Prakash Jhalani and the same being credited to the accounts of Pradeep Jhalani and Anoop Jhalani. While the two applications were being considered by the Court on April 6, 1995, the petitioners filed another application under Order 1 Rule 10 C.P.C. This application was moved by counsel for the petitioner on behalf of Pradeep Jhalani and Anoop Jhalani seeking to be imp leaded as co-petitioners. The contentions raised in this application is with reference to the contents of the earlier application filed under Order 6 Rule 17 C.P.C. and also to the effect that the petition had been earlier filed by the Trustees without impleading these names under a bona fide mistake and in good faith. Similarly, the petitioners filed an application under Order 6 Rule 17 C.P.C. with the proposed amendments to the similar effect in the other case as well as an application under Order 1 Rule 10 CPC on behalf of Pradeep Jhalani and Anoop Jhalani was filed.

4. The matter was examined at length by the learned Additional Rent Controller. The admitted facts, as stated in paragraph 7, may be referred to as under:

"7. There are certain facts which are admitted on both ends and on which both parties rely. Undisputably Pradeep Jhalani was born on 10.6.52 while Anoop Jhalani was born on 13.1.55. Thus they attained majority on 10.6.70 and 13.1.73 respectively. The Trust had been created by their grand mother Smt.Ganga Devi vide Trust Deed dated 31.3.1959 copies of which have been proved as Ex.AW1/1 in the records of the two cases. The condition No.4 of the said Trust Deed is relevant for the present purposes and reads as under:

"AND IT IS HEREBY FURTHER AGREED AND DECLARED that the Trustees shall hold the Trust Funds including the accumulations if any, until the attainment of the majority of both the beneficiaries in the manner following:

(a) The Trust Fund to be divided amongst the aforesaid children in equal proportion.

(b) In case any one of the beneficiaries dies during the continuance of the Trust, the other beneficiary shall become the sole beneficiary and the Trust Fund shall be given to him on his attaining the age of majority."

8. As per the Trust Deed Ganga Devi appointed her son Om Parkash Jhalani and his wife Smt. Shanti Jhalani who are in fact parents of the two beneficiaries, to be trustees along side herself. As already seen, Ganga Devi and Shanti Jhalani died in December 1969 and October 1976 respectively. It is stated that suit property was purchased by the Trust on 29.3.65. It is admitted now on behalf of the petitioner that the Trust stood extinguished on 13.1.73 when the 2nd beneficiary Anoop Jhalani also attained majority, this by virtue of the effect of condition no.4 as extracted above."

5. The Trial Judge then proceeded to consider the question as to whether the petitions preferred by the allegedly non-existing body could be maintained and as to whether the defect could be rectified by impleading the person or persons who only had the right to sue. The petitioners took the plea that even the respondents/tenants had been recognising the Trust only as their respective landlords and so the Trust continued to be necessary party as in its absence the respondents could validly deny any relationship between two beneficiaries. It was argued that it was not a case preferred by non-existent person but case of a present Trust that is existing for the limited purpose and finally that if the amendments were allowed, no prejudice would be caused to the respondents. These pleas were vehemently resisted by the respondents and it was argued that the Trust had ceased to exist and, therefore, the authority of O.P.Jhalani became extinct and the resultant effect was that the case was filed by a non-existent person which was equated with a case filed in the name of a dead person.

6. The Additional Rent Controller referred to the law and judgments as cited by counsel for the parties and came to the following conclusions in paragraph 19 which may be reproduced as under:

"Having given my considered thoughts to the relevant contentions of both sides I am not inclined to allow addition of parties in these two cases as the petitions were defective from day one and have been a nullity throughout. The defect cannot be explained away only on the plea of bona fide mistake. The petitioner was non-existent even before the petitions were preferred on Anoop Jhalani attaining majority on 13.1.73, O.P.Jhalani stood discharged from his liability and office of trustee. Even if it be that it was he who had inducted the respondents in the two cases as tenant in the respective portions in their occupations and even if the respondents under some misrepresentation of O.P.Jhalani have been paying rent in the name of the Trust, the Trust cannot be admitted to have continued to exist. The Trust stood extinguished by operation of law and by the effect of the condition set forth by its creator. There can be no deeming with regard to its continuance. The plea that the respondent would have taken objection to the relation with Pradeep Jhalani and Anoop Jhalani,if Trust had not been added as a party is without merit. Pradeep Jhalani and Anoop Jhalani had become owners of the property in their own rights on the contingency of their attaining majority. They need not have and could not have joined a non-existent person to pursue their legal remedies. In fact their rights were not dependent on a non-existent person also joining them in raising voice against the respondents. Even if O.P.Jhalani continues to realise rent from the respondents,he does not become either the owner or landlord in respect of the suit property. His authority stood extinguished on the day the Trust became extinct. Even if it be assumed for the sake of arguments that O.P.Jhalani has been acting and has been recognised as a landlord by the respondents throughout, the defect does not stand cured or explained away as of bonafide mistake for the simple reason that O.P.Jhalani did not present the petition in his individual capacity. He represented himself as a trustee and preferred the petitions in the name of the Trust which did not exist at the relevant time.

It may be mentioned here that while not disputing that the Trust ceased to exist before the petitions came to be preferred there is no prayer even now for deletion of its name. This apparently so as to project the application in hand as an application to add new plaintiffs, and so as to avoid the efforts being seen in the nature of substitution of new plaintiffs in place of original plaintiff. The effort in fact is in the nature of substitution, which as already seen is not permissible."

7. The applications of the petitioner under the provisions of Order 6 Rule 17 C.P.C. as well as under Order 1 Rule 10 C.P.C. were as a consequence dismissed and it was held that "effort to infuse life into the dead cases by resuscitating them through amendments and additions of parties fails". The petition as a consequence of the petitioners were held to be not maintainable.

8. The learned counsel for the petitioner has vehemently argued that the Additional Rent controller has erred in law by recording findings which cannot be sustained in the facts and circumstances of the present case. It is contended that the petitions for eviction were filed as far back as in the year 1986 and most of the proceedings have completed. It will cause undue hardship to the petitioners and the proposed petitioners on whose behalf the applications were made for impleadment will suffer an irreparable loss and injury in case a fresh petition or petitions are directed to be filed. The eviction suit has been filed by O.P.Jhalani father and Trustee of Pradeep Jhalani and Anoop Jhalani for whose benefit it was created and he was receiving the rent also. Pradeep Jhalani and Anoop Jhalani who were born on June 10, 1952 and January 13,1955 respectively attained majority on June 10, 1970 and January 13, 1973 respectively. The Trust had been created by their grand mother Smt.Ganga Devi by Trust Deed dated March 31,1959. The learned Additional Rent Controller accepted the plea which is patently erroneous that the Trust had ceased to exist on their attaining the majority as the tenancy was also created after Pradeep Jhalani and Anoop Jhalani had attained majority. The respondents cannot be permitted to take advantage of their coming in possession from the Trust and then disputing its existence. In this situation even the tenancies in their case will be void. Lastly, the Trial Judge has wrongly held that it is a case of infusing life into the dead cases through amendments and addition of parties.

9. On the other hand, the learned counsel for the respondents has argued that the petition for eviction was filed in 1986 by the Trust which automatically stood extinguished on the attainment of majority of one of the beneficiaries on January 13,1973 and as a consequence it was a nullity and no person can be imp leaded as co-petitioner and petitioner in the case and the petition was liable to be dismissed in view of the judicial pronouncements in Roop Chand Vs. Sardar Khan and others AIR 1928 Lahore 359; Hazarimal Bholaram Vs. Shriramchandraswami Dewasthan, Rampaili and others AIR 1934 Nagpur 55; S. Darshan Lal Vs. Dr. R.E.S. Dalliwall and another Amar Kaur W/o Ram Lal and others Vs. Sadhu Singh and others C .Muttu Vs. Bharath Match Works, Sivakasi AIR 1964 Mysore 293; Goverdhan Dass and another Vs. Darshan Singh and others Cuttack Municipality Vs. Shyamsunder Behera Joginder Singh and others Vs. Krishan Lal and others and Prestige Fin P. Ltd (O.L.) Vs. Balwant Singh 1978 Rajdhani Law Reporter 246.

10. There is force in the contentions as raised by learned counsel for the petitioner. The judgments as cited before the Trial Court have not been considered in the proper context and have been misinterpreted. The following judgments which have been cited are Karimullah Khan and another Vs. Bhanu Pratap Singh Giriraj Singh AIR 1938 Nagpur 458; Purushottam Umedbhai and Co. Vs. M/s Manilal and Sons Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon Goverdhan Dass and another Vs. Darshan Singh and others Khaja Begum Vs. Gulam Mohiuddin and others United Commercial Bank Vs. Dharam Paul Singh and others Arya Vaidya Sala Vs. K.C.Vijay Kumar and Jaswant Vs. The Financial Commissioner and others .

11. In the judgment as reported in Karimullah Khan and another (supra) it has been clearly held that an application under Order 1 Rule 10 CPC contemplates that a suit even filed in the name of a wrong person irrespective of whether he is living or a dead person, the defect is capable of being cured under the provisions of Order 1 Rule 10 CPC. Therefore, an application under Order 1 Rule 10 CPC was maintainable and this defect could be cured if the mistake was shown to have occurred in good faith provided that in permitting the plaintiff to amend it no injustice resulted to the defendant.

12. Similar view was taken by the Punjab & Haryana High Court in Jaswant V. The Financial Commissioner and others (supra) wherein it was held that when there was a bona fide mistake about parties, the petition under Order 1 Rule 10 CPC and Order 22 Rule 4 CPC for impleadment of legal heirs was maintainable.

13. The Supreme Court in Jai Jai Ram Manohar Lal (supra) has reiterated the proposition that amendment of plaint is within the discretion of the Court and it cannot be refused on technical grounds.

14. The consensus of the judgments and the law as stated will, therefore, indicate that the Courts do not have to be technical in refusing applications under the provisions of Order 6 Rule 17 and Order 1 Rule 10 CPC.

15. The facts of the present case may now be re-examined. The Trust was created for two minors Pradeep Jhalani and Anoop Jhalani who were born on June 10, 1952 and January 13,1955 respectively. They both attained majority on June 10, 1970 and January 13,1973. Clause 4 of the Trust Deed which may be relevance reads as under:

"4. AND IT IS HEREBY FURTHER AGREED AND DECLARED that the Trustees shall hold the Trust Funds including the accumulations if any, until the attainment of the majority of both the beneficiaries in the manner following:-

(a) The Trust Fund to be divided amongst the aforesaid children in equal proportion.

(b) In case any one of the beneficiaries dies during the continuance of the Trust, the other beneficiary shall become the sole beneficiary and the Trust Fund shall be given to him on his attaining the age of majority."

16. It will not be necessary for me to determine as to whether the Trust has actually been extinguished on the attainment of majority of the beneficiaries though it is argued by learned counsel for the petitioner that it continued to operate. The fact, however, remains that the tenancy in respect of the premises commenced on November 1, 1979 which is not denied by the respondents. Assuming if the argument of learned counsel is accepted that the suit has been filed in the name of a dead person or by a Trustee of the extinguished Trust, the respondents could not have been conferred the rights of tenancy and their inception would then become unlawful. In this background the respondents are merely trying to gain time by raising objections which cannot be sustained in the facts and circumstances of the present case. The proceedings have gone on since the year 1986 and the Additional Rent Controller was clearly in error to hold that the Trust had extinguished and the suit having been filed by a dead person could not be maintained. The mere technicality on which the applications of the petitioner have been rejected cannot be sustained. The Court is vested with wide discretion to permit amendment and the same cannot be refused on such grounds.

17. The Supreme Court in Jai Jai Ram Manohar Lal (supra) has held in paragraphs 5,6 and 7 as follows:

"5. The order passed by the High Court cannot be sustained. Rules of procedure are intended to be on handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder,he had caused injury to his opponent which may not be compensed for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. In Amulakchand Mewaram Vs. Babulal Kanalal, 35 Bom LR 569= (AIR 1933 Bom 304), Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed:

".... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case,the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie,there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."

In Amulakchand Mewaram's case, 35 Bom LR 569:(AIR 1933 Bom 304) a Hindu undivided family sued in its business name. It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family. An objection was raised by the defendant that the suit as filed was not maintainable. An application to amend the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court of first instance. In appeal the High Court observed that a suit brought in the name of a firm in a case not within Order 30, Civil Procedure Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given.

6. This Court considered a somewhat similar case in Purushottam Umedbhai's case, . A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription. The application for amendment was rejected on the view that the original plaint was no plaint in law and it was not a case of misnomer or misdescription, but a case of a non-existent firm or a non-existent person suing. In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a mis-description, which in law can be corrected and should not be considered to amount to a description of a non-existent person. Against the order of the High Court an appeal was preferred to this Court. This Court observed (at p.994):

"Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners out-side India. In their case they still have to sue in their individual names. If however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are mis-describing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a Court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure. In these circumstances, a Civil Court could permit, under the provisions of Section 153 of the Code (or possibly under Order VI, Rule 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties." These cases do no more than illustrate the well-settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.

7. In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal". The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business name. The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted. In our view there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations."

18. It will not be necessary to discuss any further judgments in detail as the law is well settled that the parties can be added at any stage of the proceedings if the interest of justice demands so and the discretion of the Court has to be exercised to advance the ends of justice and the applications cannot be rejected on narrow or technical limitations.

19. For the reasons as stated above the present petition is allowed. The judgment dated January 4, 1996 of the Additional Rent Controller is set aside. There will be no order as to costs. The matter is remanded back to the court of Rent Controller for disposal on merits after impleading the parties on the basis of the applications as moved by the petitioners. The parties are directed to appear before the Additional Rent Controller for further proceedings in the matter on September 14, 1998.