Rajinder Gopal & Others vs Gowarsons Publishers
2000 Latest Caselaw 111 Del

ORDER

Vijender Jain, J.

1. Aggrieved by the order passed by the Trial Court allowing amendments in the written statement, the present Civil Revision Petition has been filed by the plaintiffs/petitioners.

2. It has been contended by Mr. Tyagi, learned counsel appearing for the petitioners that the Suit was instituted on 26.2.1996, the written statement was filed on 8th August, 1996 and, thereafter, in view of certain admissions made by the defendant with regard to execution of Agreement to Let, the rate of rent, the terms and conditions thereto, the petitioner filed an application under Order 12, Rule 6 of the CPC and the pleadings in that application was also completed. After the said application was filed, the respondent filed an application under Order 6, Rule 17 of the CPC to amend the written statement.

3. It has been contended before me by Mr. Tyagi, learned counsel for the petitioners that the application under Order 6, Rule 17 of CPC filed by the respondent was an abuse of process of Court and the same was mala fide as no such plea was taken either in the written statement originally filed by the respondent or in the reply filed to the application under Order 12, Rule 6 of CPC filed by the petitioner. In support of his contention, Mr. Tyagi has cited Kedar Nath & Ors. Vs. Ram Perkash & Ors., 1999 RLR 45, a Full Bench Decision of this Court, and S. Thanagapan Vs. P. Padmavathy .

4. On the other hand, learned counsel for the respondent Mr. Jayant Nath has contended that by virtue of the application under Order 6, Rule 17 of CPC, the respondent wanted to bring certain subsequent events before the Court which was permissible in law. He has further contended that paragraph 7 relates to the legal submissions and therefore amendment has rightly been allowed by the Trial Court. In support of his submissions, learned counsel for the respondent has cited M/s. Ganesh Trading Co. Vs. Moji Ram, .

5. I have given my careful considerations to arguments advanced by learned counsel for the parties.

6. Let me have a look at the written statement filed by the respondent on 8th August, 1996. Para 3 of the preliminary objection is important. It is reproduced below :-

"Notwithstanding and without prejudice to what is stated above, the plaintiffs have no cause of action to institute the present suit because according to the 'Agreement to Let' dated 23rd May, 1980 executed between the plaintiff and the defendant the plaintiff could terminate and tenancy only on the failure of the defendant to pay the rent. It is admitted in the plaint that the defendant has been regularly paying the rent upto October, 1995. There being no failure on the part of the defendant, the notice dated 11th September, 1995 of the plaintiff is without any cause and is, therefore, incompetent, illegal, invalid and not enforceable at law. The suit of the plaintiff is, therefore, not maintainable."

7. While dealing on merit, the respondent in para 1 in the written statement stated, interalia, as follows :-

1. That para 1 of the plaint as stated is wrong and is denied. While it is not denied that the parties entered into agreement to let the suit premises on 20th May, 1980 which inter alia contained the following terms :-

(i) The monthly rent shall be Rs. 4200/- to be paid in advance on or before 15th day of Calendar Month for which it falls due.

(ii) The tenancy shall commence from such date as may be mutuallty agreed upon in writing by the parties.

.............

(vi) The lease shall be granted for a period of three years and if the 2nd party is desirous of extending the same for further period, the first party shall renew the same on the increase of 5% in the monthly rent."

8. By virtue of an application under Order 6, Rule 17, respondent wants to incorporate and add paragraphs 7, 8, 9, 10 and 11.

7. That without prejudice to what is stated above, the defendant is not liable to be ejected from the suit premises inasmuch as the plaintiffs had by their "Agreement to Let" referred to above had agreed to create lease in favour of the defendant in perpetuity because the tenancy was extendable at the option of the defendant with increase in rent of 5% after the initial period of three years. The defendant exercised his option and started paying increased rent as envisaged in the "Agreement to Let" and has been paying the rent regularly without any default till today even though the plaintiffs have not executed a registered lease deed as required by law, but the defendant had been honestly and regularly performing his part of the agreement. The defendant is therefore not liable to be ejected in view of Section 53-A of the Transfer of Property Act."

8. That the suit of the plaintiff is bad for non-joinder of necessary parties inasmuch as on the date of the filing of the said suit, though the plaintiff had been mis-representating that they were the only owners of suit property, the defendant has not learnt that besides the plaintiffs there are several other coowners of the said property, interalia, Smt. Sushila Devi, Pardeep Gopal and Deepak Diwan, mother and brothers respectively of the plaintiffs. In view of the non joinder of the necessary parties, the suit of the plaintiffs ought to be dismissed."

9. That the defendant has received a registered legal notice dated 22nd May, 1998 from Sh. Deepak Diwan of the cosharers/joint owners of the property that by a partition deed dated 17th October, 1996 a portion of the premises in occupation of defendants has fallen to his (Deepak Diwan's) share and Mr. Deepak Diwan has demanded rent for the said portion @ Rs. 1450/- per month w.e.f. 17.10.1996 till 28th April, 1998 amounting to Rs. 24,650.

10. That notwithstanding what is stated above, the defendant has not learnt that Shri Deepak Diwan, one of the owners of the property subject of the suit has sold a part of the premises in possession of the defendant and which fell to his share to (i) Smt. Neena wife of Shri Joginder Kumar resident of B-322, Hari Nagar, (ii) Naresh Kumar son of Shri Chaman Lal resident of C- 150, Hari Nagar, New Delhi and (iii) Shri Rajiv Kumar son of Shri Om Parkash resident of A. 2/221, Janakpuri, New Delhi. The aforesaid plaintiffs herein have no interest with respect to the portion of the property falling to the share of Shri Deepak Diwan and subsequently sold by him to the aforesaid three purchasers, the suit by the plaintiffs to that extent is not maintainable."

11. That Shri Deepak Diwan aforesaid has also attorney the defendant vide notice dated 22.5.1998, the defendant tenant to be a tenant under Mrs. Neena wife of Shri Joginder Kumar, (2) Naresh Kumar son of Chaman Lal and Rajiv Kumar aforesaid in a portion measuring 203 square yards out of the area previously let out to the defendants and the said purchasers have demanded rent from the defendant at the rate of Rs. 1,450/- per month w.e.f. 29th April, 1998. The defendant is therefore tenant under the plaintiffs only in a part of the suit property and the rent payable to the plaintiff is only Rs. 2,860/- P.M. the remaining Rs. 1,450/- is payable to the purchasers aforesaid. The plaintiffs have no locus standi to file the present suit as framed."

2. That at the end of para 1 on merit, the following be allowed to be added as para 1(A).

"It is submitted that for what stated in the preliminary objections which be read as part of the reply to the para under reply, the plaintiffs have no locus standi to file the present suit as framed. The defendant is not a tenant under the plaintiffs in the whole of the property which is claimed to belong to the present plaintiffs."

3. That at the end of para 3 of the written statement, the following be added :-

"The plaintiffs had created a tenancy in perpetuity in favour of the defendant which was for commercial purposes and although initially limited for three years, the defendant was given the option of continue as a tenant on payment of increased rent of 5% and to so remain a tenant till he paid the rent and performed the obligations under the lease. There was no question of the tenant being ejected as the tenant/defendant had performed his part of the contract and on the principle of part performance as enshrined in Sections 53-A of the Transfer of Property Act, he could not be ejected even though no registered lease deed had been executed by the plaintiffs in his favour."

4. That at the end of para 9, the following be allowed to be added.

"That the contents of paras 8 to 11 of the preliminary objections be read as part of the reply herein, it is stated that the defendant is not now a tenant under the plaintiffs as alleged at least w.e.f. 17.10.1996. At best the defendant is a tenant under the plaintiffs. Smt. Sushila Devi and Pardeep Gopal besides the plaintiffs in a portion only of the property subject of suit. The rent for which is only Rs. 2,870/- per month. The defendant has already paid Rs. 4,420/- per month and every month after the current month of May 1998 to the plaintiffs which the plaintiffs are liable to reimburse to Mr. Deepak Diwan as the plaintiffs have received the said amount in violation of the partition deed and which Mr. Deepak Diwan was claimed from the defendant vide his notice dated 22.5.98."

5. That the defendant came to know of the exist of other coowners of the suit property only after the last hearing of the suit and hence this application for amendment. However, para 7 of the preliminary objection is legal ground.

6. That the amendments proposed to be made in the written statement are necessary for the just and proper decision of the suit and no prejudice will be caused as the suit is in the earlier stages and issues have not yet been framed in the suit.

9. The Trial Court allowed the amendment to the application of the respondent. To my mind, paragraph 7 of the amendment application wherein the respondent has taken altogether new stand that plaintiffs had agreed to create the lease in favour of the defendant in perpetuity amounts to withdraw an unequivocal admission which was circumvented by his admission in the original written statement in paragraph 1 on merit. Having agreed that Agreement of letting was executed between the parties on 20th May, 1980, the respondent not only relied on that agreement in the original written statement filed by him but, as a matter of fact, reproduced the relevant clauses of the said agreement in the written statement. It was also admitted by the respondent that the monthly rent was agreed @ Rs. 4,200/- per month which was to be paid in advance on each 15th day of Calendar month which fell due. It was also stated in the written statement that pursuant to Clause (vi) of the said Lease Deed, the lease was granted for a period of three years and if the second party was desirous of extending the same for further period, the first party shall renew the same on the increase of 5% in the monthly rent. Having taken the stand that the lease was extendable on increase of 5% of rent at the option of the respondent, it was not pleaded in the written statement that the respondent at any stage has paid 5% extra after the expiry of the three years of the Lease to get the lease renewed for a further period of three years after 1983 when lease expired after first three years. Having not done so in the written statement, the stand taken in the application for amendment in para 7 and other consequential amendment challenging the ownership of the petitioner, rate of rent etc. amounts to gross abuse of process of court specially taking into consideration the fact that the application in question was filed after the petitioner has filed an application under Order 12, Rule 6 of CPC. It also amounts to dilatory tactics. As a matter of fact the respondent wants to retract from the admission which the respondent has made in the original written statement. The Trial Court committed a grave error in allowing the amendment as contained in para 7 of the application as well as amendment at the end of para 1 on met as para 1(A). Similarly, amendment sought for at the end of para 3 of the written statement as well as at the end of para 9 cannot be allowed in view of the fact that the defendant had admitted as stated hereinabove the rate of rent @ Rs. 4,200/- per month.

10. Amendment sought for by virtue of para 11 of the application for the amendment with the words 'The defendant is therefore a tenant under the plaintiffs only in a part of the suit property and the rent payable to the plaintiff is only Rs. 2,860/- P.M., the remaining Rs. 1,450/- is payable to the purchasers aforesaid. The plaintiffs have no locus standi to file the present suit as framed' cannot be allowed. I set aside the order of the Trial Court with regard to the same.

11. Now, with regard to amendment to paras 8, 9, 10 and 11, what has been sought to be amended is that the co-owner of the property in question on account of some partition between the co-owners has sold the premises to some third party.

12. Mr. Tyagi, learned counsel for the petitioner has contended that this amendment ought not to have been allowed by the Trial Court on the ground that once the original lease agreement is admitted, rate of rent has been admitted, the relationship of owner and tenant has been admitted by the parties, it will be of no help to the respondent if during the pendency of the petition some of the co-owners have sold the property. I am afraid that this contention of learned counsel for the petitioner is legally untenable. At the time of allowing the amendment to the pleading, Court has not to go to the merit of the amendment. On account of subsequent events if some coowner has sent a notice to the respondent with regard to the premises being sold to a third party, by a Sale Deed, that fact as a subsequent event can be brought on record, however, what would be the effect of such an amendment would pertain to the merit of the case to which the Court will not go at this stage. It will be open for the petitioner to file an amended replication and to deal with the proposed amendment in accordance with law. Therefore, the amendment proposed by the respondent in para 8, 9 and 10 are allowed. Amendment in paragraph 11 is allowed to the following extent :-

"That Shri Deepak Diwan aforesaid has also attorney the defendant vide notice dated 22.5.1998, the defendant tenant to be a tenant under Mrs. Meena wife of Shri Joginder Kumar, (2) Naresh Kumar son of Chaman Lal and Rajiv Kumar aforesaid in a portion measuring 203 square yards out of the area previously let out to the defendants and the said purchasers have demanded rent from the defendant at the rate of Rs. 1,450/- per month w.e.f. 29th April, 1998."

13. With the above observations, I partly allow the present Civil Revision Petition.

14. Ordered accordingly.