P. Kumari And Ors. vs N.D.M.C.
2002 Latest Caselaw 207 Del

JUDGMENT

R.C. Jain, J.

1. This civil revision is directed against the order of the learned Additional District Judge, Delhi dated 15.5.2001 by which an application under Order 6 Rule 17 CPC moved on behalf of the defendant-respondent/NDMC seeking amendment of written statement has been allowed.

2. Briefly stated, the relevant facts giving rise to the present revision are that the petitioners herein had filed a suit for declaration that they are the lessees of the defendant in respect to respective shops in Palika Bazar and in the alternative their license has been renewed on or about 29.10.1983 and the defendants were estopped from imposing any fresh terms and conditions and also for permanent injunction for restraining the defendant-NDMC from taking any action with respect to the cancellation of the license and dispossession of the plaintiffs from the shops in question. The suit was initially filed in the High Court and was contested by the defendant and trial also proceeded in the High Court untill it reached at its fag and i.e. final arguments stage when it stood transferred to the District Court consequent upon the enlargement of the pecuniary jurisdiction of District Courts. When the matter was pending before the Additional District Judge for arguments, an application under Order 6 Rule 17 CPC was made on behalf of the respondent-defendant-NDMC on 24.1.2001 seeking permission to amend the written statement more particularly to add following two objections as preliminary objections No. 8 & 9 :-

"8. That the suit is not maintainable for want of service of mandatory notice as required u/s 49 of P.M.Act, 1911.

9. That the provisions of Public Premises (Eviction of Unauthorised Occupants) Act applicable to the premises in dispute. The present suit is not maintainable."

3. The application was opposed on behalf of the plaintiffs, inter alia, on the ground that the amendment application was highly belated having been filed at the fag end of the trial after a lapse of 15 years; allowing the application at that stage would cause serious prejudice to the plaintiffs since a vested right had already accrued in favor of the plaintiffs by not raising the proposed objections in the written statement and it also amounted to waiver of the right of the defendant-NDMC with regard to the service of statutory notice. Yet another objection was that the defendant is estopped from raising the above objection/pleas by way of amendment. It was also disputed that the suit premises were public premises within the meaning of Public Premises Act. Learned trial court on a consideration of the matter has allowed the application and permitted the petitioner to incorporate the said objections in the written statement primarily on the view that the same in necessary for just and proper adjudication of the question in controversy and that the law with regard to the amendment of pleadings is liberal and more tilted in favor of allowing the amendment rather than refusing the same. Aggrieved by the said order, the plaintiffs have filed the present revision.

4. I have heard Mr. Neeraj Malhotra counsel for the petitioner and Ms. Hema Kohli for the NDMC and have given my thoughtful consideration to their respective submissions. In order to assail the impugned order as illegal, the learned counsel for the petitioner has strongly urged that it would cause serious prejudice to the petitioners if the proposed amendment is allowed because on one hand, it would deprive the plaintiff of their vested right which have accrued in their favor on account of the defendant-NDMC having not raised any objection with regard to the non-service of the notice under Section 49 of the P.M. Act, 1911 and on the other hand it would deprive the plaintiffs from filing a fresh suit on the same cause of action by virtue of the bar envisaged in Rule 2 of Order 23 CPC because the fresh suit will be barred by limitation. In this regard the learned counsel for the petitioner has heavily relied upon a Supreme Court decision in the case of Gauri Shankar Vs. M/s. Hindustan Trust (Pvt) Ltd. & Ors . In that case the Court considered the question whether the plea with regard to the service and validity of notice terminating the tenancy could be raised at the appellate stage and after lapse of about eight years. The High Court had taken a view in the affirmative but the Supreme Court answered the question in negative by holding :-

"It is true that a question not agitated before the lower appellate court or expressly given up there can be followed to be raised if it is a pure question of law but in permitting the same to be done the court has to consider whether in exercise of proper and judicial discretion, such a point should be permitted to be agitated when it has been conceded or abandoned before the court below. While giving permission to argue that point the court has to look at all the facts and circumstances the conduct of the parties seeking to raise that point is of great importance.

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Ultimately when the suit for eviction was filed in 1959 it dragged on for several years., In the written statement which was originally filed no plea was taken that a valid notice to terminate the contractual tenance had not been served and therefore the petition for eviction was not maintainable. The respondent waited for 8 years before seeking an amendment to include a plea on the absence of such a notice. The trial court did allow the amendment but the our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remember that if a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. But no raising that plea for nearly 8 years a great deal of prejudice was caused to the appellant. It has been pointed out by Mr. Chagla on behalf of the respondent that an appeal was competent against the order allowing amendment under Section 38 (10 of the Rent Act and since no such appeal was filed the order allowing amendment become final. Without expressing any opinion whether such an order could be appealed against and on the assumption that an appeal was competent the question still remains whether the learned Judge of the High Court While allowing a point to be raised after it had been abandoned before the Rent control Tribunal should or ought to have taken this fact into consideration and it combination with other facts should have disallowed any argument on the question of the invalidity of the notice. In our judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the court that any argument based on the absence of a valid notice should not have been allowed." (emphasis supplied)

To reinforce his contention that the defendant-NDMC shall be deemed to have waived the objection with regard to the non-service of notice, learned counsel for the petitioner has also relied upon a decision of the Madhya Pradesh High Court reported as Jugalkishore Kabra & Ors VS. Municipal Committee, Piparia & Ors. wherein the said Court held as under :-

"The principal that a notice under Section 80, Civil P.C. is for the protection of the authority concerned, and, if in a particular case, he does not require that notice, he can lawfully waive his right to the notice applies to a notice under Section 48 of the C.P. and Berar Municipalities Act. Therefore, in a suit against a Municipal Committee where there was no objection raised in the written statements by any of the defendants about a notice under Section 48, it should be taken that they waived their right to such a notice."

5. As against this, the learned counsel for the respondent has submitted that the objection with regard to the non-service of statutory notice under section 49 of the Punjab Municipal Act is a legal one and the Court suo-motto can take note of such an objection/defect in the suit while disposing of the matter and there is no question of waiver of the right simply because it was not raised in the written statement at the earliest or proper stage. In regard to the delay in raising such an objection, reliance has been placed upon a recent Supreme Court decision in the case of B.K.N. Pillai Vs. P.Pillai & Anr. where the Supreme Court has allowed the defendant to raise a plea that he was a lessee and not a licensee and the alternative plea that if he is not held to be a lessee, he was entitled to the benefit of Section 60(b) of Easements Act, 1882 negating the plea of the plaintiff that such pleas were in-consistant and amounted to withdrawal of admission made by the defendant and that the amendment would cause irretrievable cause to the plaintiff.

6. There is no dispute with regard to the legal position that amendment of the pleadings can be allowed at any stage of the proceedings and the amendments which are necessary for the just and proper adjudication of the question in controversy should be liberally allowed. However, it is equally well settled that the amendments which are inconsistant to the original pleas or amount to withdrawal of certain admissions of fact or which tend to cause irretrievable prejudice to the opponent are not to be allowed.

7. Judging the present case in the light of the above legal position, it is menifest that the objections sought to be raised by the defendant-respondents are legal objections Adjudication of such questions is necessary for the just, proper and final adjudication of the controversy between the parties. The plea of the petitioners with regard to the waiver of notice arising from the conduct of the defendant in not raising that proposed objections can always be taken up and answered by the trial court at the appropriate stage but amendment of the written statement cannot be refused at this stage by presuming that the defendant has waived their rights in regard to the notice.

8. Thus having considered the matter in its entirity, this Court is of the considered opinion that on the face of the facts and circumstances of the case, the learned trial court was justified in allowing the amendment application of the respondent-NDMC and permitting them to raise the aforesaid objections in their written statement. It would, however, be open to the petitioners to raise such objections/pleas with regard to the waiver of the notice etc. as may be available to them in their rejoinder to the amended written statement and the learned trial court shall dispose of the same in accordance with law. The impugned order does not suffer from any illegality, material irregularity or any other infirmity which calls for any interference by this Court. The revision petitions is accordingly dismissed.