Band Box Pvt. Ltd. vs Som Dev Gupta & Ors.
1999 Latest Caselaw 195 Del

JUDGMENT

Mukul Mudgal, J.

1. This revision petition arises from an impugned order dated 9.10.1998, disallowing the application moved by the original defendant/petitioner in the present revision petition for amendment in the written statement. The revision petition arises from a suit filed by the plaintiffs/respondents in the present revision petition in respect of industrial plot measuring 1866.66 sq. yds. alongwith the super-structure which was let out to the defendant/petitioner at the rate of Rs. 5,000/- per month. On the basis that the premises were outside the purview of the Delhi Rent Control Act, 1958, ejectment of the defendant/petitioner was sought from the premises and future mesne profits @ Rs. 3,75,000/- were also claimed. The suit was filed on 30.5.1996, and was resisted by the defendant/petitioner by filing a written statement controverting the allegations in the plaint.

2. This revision petition arises out of an application under Order VI, Rule 17 of the Code of Civil Procedure made by the petitioner/defendant in which an amendment was sought to contend that the premises had been let out to the petitioner/defendant for manufacturing purposes and hence the requirement for giving six months notice had not been met.

3. The impugned order dated 9.10.1988 dismissed the aforesaid application for amendment filed by the petitioner. The plaintiffs/respondents contended that this plea was highly belated, an after-thought and the plea was mala fide as it was not even taken in the response to the notice of termination. It was neither taken in the written statement nor in the cross-examination of the plaintiffs/respondents. It was also contended that both the parties have concluded their evidence and case was at the stage of final arguments.

4. The learned Additional District Judge by its impugned order dated 9.10.1988, dismissed the petitioner's application for amendment mainly on the ground that it was highly belated, an after-thought and would require a de novo trial.

5. The above order dismissing the application for amendment is under challenge in the present revision petition.

6. Learned Counsel for the petitioner has mainly relied upon an observation made in paragraph 13 of the impugned order/judgment dated 9.10.1998, where the learned trial Judge has erroneously held that registered lease deed dated 6.1.1976, does not contain the clause for manufacturing purposes. A perusal of Clause 9 of the Lease Deed dated 6.1.1976, does show that the use of the property for the manufacturing purposes is mentioned in the Lease Deed. However, this error of the Additional District Judge is of no consequence and the judgment impugned is sustainable in view of the other findings recorded.

7. It is significant to mention that the Lease Agreement of 6th January, 1976, was initially for a period of five years and the petitioner/defendant was permitted by the lease to extend the period of this lease thrice by a five years period each by giving a notice in writing one year prior to the expiry of the pending period of the lease. It is not in dispute that the three terms under the said lease after all extensions would have expired in 1996.

8. The position of law that normally amendment should be allowed liberally is well settled and does not bear repetition. However, the conduct of the parties and the timing of the application for amendment are factors which cannot be ignored in considering the application for amendment.

9. The learned Counsel for the petitioner has also relied upon the fact that there was a general denial of month to month tenancy in the written statement and the legal validity of the notice was contested in the reply to the notice of the respondents/plaintiffs. However, it is not disputed that the plea that the lease was specifically for manufacturing purposes was not taken by the petitioner in either in its reply to the letter terminating its lease or its written statement. The reply of the petitioner to the notice to quit was in the following terms:

"The notice has no legal validity in the eyes of law nor has the tenancy of my client, been terminated. My client continues to be a contractual tenant."

10. The relevant portion of the written statement reads as under:

"2. Para No. 2 of the plaint is wrong and is denied. It is denied that the tenancy of the defendant is from month to month according to English Calendar Month. "

11. In addition the learned Counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court reported as Bhagwati Prasad Vs. Chandramaul, , where it was held that if a plea was not specifically taken and yet covered by an issue by implication then the mere fact that the said plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it. Learned Counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court reported as J.C. Chatterjee & Ors. Vs. Shri Sri Kishan Tandon & Anr., 1972 SC 2526, wherein it was held in para No. 7 that the question as to whether the tenancy has been properly terminated or not is a point of law and as a consequence thereof it can be permitted to be urged in second appeal.

12. Learned Counsel for the respondents, however, relied upon a judgment of the Hon'ble Supreme Court reported as Gauri Shankar Vs. Hindustan Trust Limited, AIR 1972 SC 2019 at 2095, to that effect that a technical plea taken in relation to the validity of the notice cannot be permitted to be raised after gross delay and laches. Learned Counsel for the respondents also relied in particular upon a judgment of the Delhi High Court reported as Chander Kanta Singhal Vs. Kapadia Exports, , to the effect that:

"That a person objecting to the validity of out notice under Section 106 of the Transfer of Property Act must plead which of the requirements for Section 106 had not been complied with. The mere fact the defendant contended in the written statement that the suit is bad for want of valid and binding notice terminating the tenancy does not tantamount to taking the requisite plea."

13. Based upon the above judgments it was the submission of the respondents that after the expiry of the original term of lease by efflux of time, and in the absence of an allegation of holding over, there was no requirement of issuing notices for the termination of lease. In my opinion, the Trial Court was right in declining to allow the amendment in the present matter. In view of the fact that the plea was taken after a gross and unexplained delay and laches, the issue in this case was covered by the judgment of the Hon'ble Supreme Court in Gauri Shankar's case (supra). The amendment was also rightly declined in view of the judgment of the Delhi High Court in Chander Kanta Singhal's case (supra) which laid down that the specific requirements under Section 106 of the Transfer of Property Act which have not been complied with ought to have been pleaded in contesting the validity of the notice. It has also been contended by the respondents that the main and substantial purpose of the present lease was of drycleaning and there could not be any manufacturing purposes. However, it is not necessary to consider this plea at this stage. In the facts and circumstances of the case the Trial Court has rightly disallowed the petitioner's application for amendment. It is very clear that the petitioner's term as per the lease deed has expired in 1996 and in the absence of the plea that the lessee was allowed to continue in operation, it would not be in the interest of justice to permit the petitioner to raise a technical plea due to the long passage of time. In any way the petitioner itself has relied upon two judgments of the Hon'ble Supreme Court in Bhagwati Prasad Vs. Chandramaul (supra) where it has been held that if a plea is not specifically taken and is covered by an issue by implication it would not necessarily disentitle a party from relying upon it. The learned Counsel for the petitioner has also relied upon a judgment of the Hon'ble Supreme Court in J.C. Chatterjee & Ors. Vs. Shri Sri Kishan Tandon & Anr., (supra) to the effect that the period of the termination of tenancy was a point of law and could be urged in a second appeal. If such plea is available to the petitioner in accordance with law then there would be no grievance at all which can be raised in this petition.

14. In this view of the matter, there is no merit in the revision petition and it is accordingly dismissed. No order as to costs.