Delhi High Court
M/S. Orissa Industries Ltd. vs Sh. Hardayal & Sons (Huf) on 7 May, 2001
Author: M Mudgal
Bench: M Mudgal
ORDER
Mukul Mudgal,J.
1. Since the learned counsel for the respondents/caveators has put in appearance on behalf of the respondents/Caveators, Caveat No.52/2001 is accordingly rendered as infructuous. Dismissed as such.
2. This is a revision petition, filed against the impugned Order dated 3rd February, 2001, dismissing the application for amendment, sought by the petitioner defendant.
3. The original suit was filed by the plaintiffs/respondents and sought recovery of possession of the suit premises situated in Chuna Mandi, Phar Ganj, New Delhi. The plaint averred as follows:
(a) that the last paid rend of the premises was Rs.4,000/- per month;
(b) that the monthly tenancy was terminated by a notice dated 14.11.96 and since no reply was received, another notice terminating the tenancy was sent on 26.11.96 by the plaintiff's counsel Sanjeev Sharma terminating the tenancy with effect from 31st December,1996. The said notice of 26.11.96 was controverter by the petitioner's counsel by reply dated 7.12.96. (These were the averments in Para 5 of the plaint)
(c) that since the notice was not complied with the suit for possession was filed as the Delhi Rent Act was inapplicable as the rent was beyond Rs.3,500/- per month, with a claim of mesene profits and damages at the rate of Rs.30,000/- per month.
4.While the written statement generally denied the averments in the plaint, in reply to para 5 & 6 it was stated that there was no basis or any cause of action for issuance of the notices dated 14.11.96 or 26.11.96 particularly in view of the increased rent which had the effect of continuing the tenancy for an unlimited period.
5. Significantly there was no denial of the averments in the plaint that notices dated 14.11.96 and 26.11.96 were sent to the petitioner and that Shri Surender Goel, Advocate replied to such notices on 7.12.96.
6. The amendment now sought to be brought on record reads as under:
"The defendant did not receive did not receive any such notice dated 14.11.1996 or 20.11.1996 from the plaintiffs and in fact there was no occasion on the part of plaintiffs for issuance of any such notice to the defendant for the defendant has ever instructed Shri Surender Goel, Advocate to reply any such notices dated 14.11.1996. It seems that the plaintiffs are making wrong and incorrect submission in the plaint. The defendant has also source the record of the office and found that no such notice/notices seem to have been served on the defendant."
7. Thus the averment which the petitioner/defendant seeks to now bring on record by the proposed amendment is that the Notices dated 14.11.1996 or 26.11.1996 were not received by the petitioner/defendant from the respondents/plaintiffs and the reply dated 7.12.96 sent by Shri Surender Goel, Advocate to such notices were not sent on instructions by the petitioner/defendant.
8.The Learned counsel for the petitioner has submitted that this plea is already there but the present application seeks to amplify the plea as it is being misconstrued by the respondents/plaintiffs. The suit was filed in the Trial Court on 14th of January, 1997. On 12th of May, 1997, the first written statement was filed by the petitioner/defendant. On 17th of March, 1999 an amendment sought to the original written statement was allowed and the second amended written statement was filed pursuant to such permission to amend only on 2nd December, 1998.
9. Thus the Trial Court has found that originally was no denial of the notice of termination and the application has been filed to cause pre judice to the plaintiffs/respondents. The Trial Court has also found that the defendant/petitioner herein has sought by the amendment to introduce entirely a new case.
10. It is thus clear that the petitioner/defendant wants to retract from the effect of the deemed admission of the receipt of the notices dated 14.11.1996 and 26.11.1996. The amendment, if allowed, would completely alter the cause set up in the earlier written statement about the receipt of the notices. The earlier stance of the petitioner/defendant sought to be amended was that the notices given by the plaintiffs/respondents were not competent and had no basis in law and further more the averment in the plaint that the petitioner/defendant sent a reply to the notices on 7.12.1996 was not denied. Thus the amendment seeks to set up a totally new case which is not permissible as per the law laid down in M/s Modi Spinning S Weaving Mills Co. Ltd. & Another Vs M/s Ladha Ram & Co. to the following effect:
"The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement, If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court."
Furthermore, the trial court has rightly found that the petitioner/defendant is seeking the amendments with a view to procrastinate and protract the proceedings and to retract the admissions already made. These conclusions are fully justified in view of the foregoing discussion and the fact that the amendment was sought at the stage of the plaintiff's evidence and if he allowed would irretrievably prejudice the plaintiffs/respondents by denying them the opportunity of extracting the admission from the petitioner/defendant.
11. I have heard the learned counsel for the parties. I am of the view that considering the facts & circumstances of the case and the fact that an amendment to the written statement had already been allowed and the first written statement was filed as far back as on 12th of December, 1998, there is no infirmity in the Order of the Trial Court dated 2nd of February, 2001, disallowing the amendment.
Accordingly, the revision petition is dismissed with no orders as to costs.
12. With the consent of the parties it is agreed that the costs imposed by the impugned Order dated 3.2.2001 and 26.4.2001 shall not be enforced and costs if already paid shall be returned to the petitioner within four weeks from today.
