Jai Kishan Khanna vs Mela Ram Properties Pvt. Ltd.
1999 Latest Caselaw 703 Del

ORDER

Vijender Jain, J.

1. An application for amendment under Order 6 Rule 17 CPC was filed by the petitioner before the Addl. Rent Controller which was allowed by the Addl. Rent Controller. Aggrieved by the decision of the Addl. Rent Controller, the landlord filed an appeal before the Rent Control Tribunal which reversed the finding of the Addl. Rent Controller and rejected the amendment of the petitioner. Mr. Rawal, learned counsel for the petitioner has contended that the appeal itself under Section 38 of the Delhi Rent Control Act was not maintainable in view of the fact that allowing of amendment is not an appealable order and on this short ground alone this petition under Article 227 of the Constitution be allowed, quashing the order of the Rent Control Tribunal. In support of his submission, learned counsel for the petitioner has cited Smt. Bhagawati Devi and Ors. Vs. Haji S.M. Sayeed 1979 (2) RCR 142 and has contended that generally no appeal lie against an order made under Order 6 Rule 17 of the Code of Civil Procedure. Counsel for the petitioner also cited Shri Sita Ram Talwar Vs. Shri Jai Deva Sharma 1973 RCR 417 in support of his arguments. Counsel for the petitioner further cited The Central Bank of India Ltd. Vs. Gokal Chand .

2. I have given my careful consideration to the arguments advanced by the learned counsel for the petitioner. Ordinarily allowing amendment of the pleadings do not affect the rights and liabilities of the parties. That cannot be true in all cases when an order allowing amendment made expressly or impliedly determine or affect the rights and liabilities of the parties specifically it would be difficult to hold that the order is not appealable within the dictum laid down by Supreme Court in The Central Bank of India's case (supra). Supreme Court, inter alia, in this case held as follows :

"The object of Section 38(I) is to give a right of appeal to a party aggrieved by some order which affects his right or liability. In the context of Section 38(I), the words "every order of he Controller made under this Act", though very wide, do not include interlocutory orders which are merely procedural and do not affect the rights or liabilities of the parties."

3. Mr. Rawal tried to contend that after the amendment of the Delhi Rent Control Act to which the present case pertains, the words "every order of the Controller made under this Act" have been further clarified "only on question of law". Therefore, it should be construed that no appeal was maintainable and ought not to have been entertained by the Rent Control Tribunal. The dictum of Central Bank of India's case (supra) holds good in the facts and circumstances of the case as amendment allowed by the Addl.Rent Controller affected the rights of the respondent. Whether the Rent Control Tribunal was justified in allowing the amendment, was also a question of law. On this score, I do not find any infirmity with the order of the Rent Control Tribunal.

4. On merit Mr. Rawal has contended that the law of amendment is very liberal. Amendment sought for is bona fide and in any event of the matter if the amendments are allowed that does not affect the respondent as the matter has to go for trial. Mr. Rawal has further contended that amendment sought for in paragraph 7 has been necessitated as that would demonstrate constructive res judicata. Same was the argument of the counsel for the petitioner with respect to paragraph 8. Learned counsel for the petitioner has further contended that in the eviction petition it was specifically mentioned by the respondent that there was no agreement of letting, therefore, amendment in paragraph 14 was necessitated.

5. I do not wish to incorporate the respective amendments as that is not necessary in the present case. Eviction etition, in this case, was filed in the year 1988 on the ground of Section 14(1)(h) of the Delhi Rent Control Act, wherein the respondent/landlord sought an order of eviction on the ground that the petitioner/tenant has acquired an alternative accommodation. Petitioner filed the written statement to the said eviction petition on 14.1.1989. Again Petitioner filed an application for amendment under Order 6 Rule 17 for amending the written statement on 28.8.1991.Respondent conceded to the request of the petitioner and amendment sought for by the petitioner was allowed. Amended written statement was taken on record by the Rent Control Tribunal on the same day.

6. The petitioner filed the second application for amendment on 15.7.1997; that application was allowed by the Addl. Rent Controller on 15.2.1997; that order was challenged by the landlord before the Rent Control Tribunal and the Rent Control Tribunal set aside the order of the Addl. Rent Controller on 4.9.1997.

7. The Rent Control Tribunal has rightly recorded that the second application for amendment was an abuse of the process of court and was moved to deliberately delay the proceedings of the eviction petition, that too under clause (h) of the proviso to Section 14(1) of the Act. Respondent/landlord closed his evidence on 7th July, 1994. Petitioner/tenant's evidence wasclosed on 18.4.1995. Under the order of Rent Control Tribunal, the respondent was allowed to lead additional evidence and that evidence was closed on 1.2.1996. Thereafter petitioner moved another application for leading additional amendments which was again allowed on 26.2.1996. Evidence of the petitioner was finally closed on 3.12.1996. Matter was adjourned for arguments on 16.12.1996 when instead of arguing the matter, adjournment was sought by the petitioner and the matter was fixed for 9.1.1997 and the present second application for amendment was filed on 7.2.1997. The Rent Control Tribunal has rightly recorded that pursuant to the earlier amendment allowed, if the petitioner was able to establish that the premises were let out for residential-cum-commercial purposes, then eviction petition under clause (h) was liable to be dismissed. The Rent Control Tribunal rightly recorded that the amendment sought for was not relevant to the controversy and should not have been allowed. That order was passed on 4.9.1997. Two years have passed. Petition is still pending. Therefore, I do not see any infirmity with the order passed by the Rent Control Tribunal.The second application for amendment of the written statement was dilatory tactics on the part of the petitioner and has been rightly rejected by the Rent Control Tribunal.

8. The petition is dismissed. Parties are directed to appear before the Addl. Rent controller on 20.8.1999, the date already fixed.