Ved Prakash & Anr. vs Om Prakash Jain
2009 Latest Caselaw 3049 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            C.M.(M) NO.759/2009

                      Date of Decision : AUGUST 07, 2009


       VED PRAKASH & ANR.                          ..... Petitioners
                      Through:          Mr. Ram Niwas, Advocate

                        versus

       OM PRAKASH JAIN                              ..... Respondent
                      Through:          NEMO.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may be
   allowed to see the judgment?                           No

2. To be referred to the Reporter or not?                 Yes
3. Whether the judgment should be reported in the
   Digest?                                        Yes


%                                JUDGMENT (Oral)

VIPIN SANGHI, J.

C.M. Appl. No.10803/2009

Allowed, subject to all just exceptions.

CM(M) 759/2009 & C.M. Appl. No.10802/2009

1. In challenge in this petition under Article 227 of the

Constitution of India is the order dated 06.06.2009 passed by Sh.

Raghubir Singh, ARC (E) in eviction petition bearing E-788/06. The said

eviction petition has been preferred by the respondent-landlord under

Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act,

1958 and the petitioner-tenant is the respondent in the said eviction

petition.

2. The petitioner-tenant filed the application seeking leave to

defend within the period of limitation. Subsequently, the petitioner

moved an application seeking amendment of the application for leave

to defend, on the ground of the petitioner coming to know of certain

subsequent developments having a bearing on the eviction petition.

The application has been rejected by the learned ARC on the ground

that the summary procedure evolved to try petitions under Section

14(1)(e) under the Delhi Rent Control Act does not provide for

amendment of the application seeking leave to defend, which has to

be preferred within a period of 15 days of the service of the notice.

3. In my view, the interpretation given by the learned ARC is not

entirely correct. It cannot be said that no amendment in the

application seeking leave to defend can be granted under any

circumstance. If there are subsequent developments which have

taken place, and which may have a bearing on the outcome of the

eviction petition, the amendment can be allowed in a given case. This

is for the reason that subsequent developments cannot possibly be

pleaded in the application seeking leave to defend, when it is originally

filed. But before allowing an amendment application which seeks to

incorporate material subsequent developments, the Court would also

examine whether the same has been filed with equal expedition with

which the original application seeking leave to defend is required to be

filed. If the application seeking the amendment is filed much after the

subsequent developments have taken place, the Court would be

justified in rejecting the same as being barred by delay and laches.

The tenant should act with the same sense of urgency for moving the

amendment application, with which he is required to move the

application seeking leave to defend, as the Delhi Rent Control Act,

1958 prescribes a summary procedure, and delay in moving the

application is bound to defeat the purpose of prescribing a summary

procedure i.e. to have expeditious disposal of the eviction petition.

However, amendments to incorporate pre-existing facts, which are not

incorporated in the application seeking leave to defend may not be

allowed, as the limitation for preferring the application seeking leave to

defend is only 15 days from the date of service of the notice.

4. In the present case, though the amendments sought by the

petitioner pertained to developments which have taken place

subsequent to the filing of the application seeking leave to defend, the

application has been filed highly belatedly. The amendment

application was filed only on or about 06.02.2009, whereas the

"subsequent development" sought to be incorporated are of much

earlier period. On this short ground the application of the petitioner

was liable to be rejected.

5. In any event, considering the fact that the eviction petition is

pending since November, 2006 I have examined the amendment

application to appreciate whether it is at all necessary to permit the

amendment sought by the petitioner. With a view to appreciate as to

what was the amendment sought for by the petitioner, I have perused

the application seeking amendment.

6. There were three amendments which were sought to be

incorporated by the petitioner in respect of three different properties.

The first amendment which was sought to be incorporated was in

respect of property bearing No.513, Chhatta Hinga Mal, Chhota Bazar,

Shahdara, Delhi. It was sought to be contended that after the filing of

the eviction petition, construction of four rooms, a kitchen, latrine and

bath and similar accommodation on the first floor have been raised in

the said property. It was also sought to be contended that the existing

portions of the property have been renovated.

7. This averment sought to be incorporated is, in any event,

irrelevant, as it was pleaded by the respondent-landlord in the eviction

petition itself that property bearing No.513, Chhatta Hinga Mal, Chhota

Bazar, Shahdara, Delhi is owned by the sons of the petitioner Umesh

Jain and Rajeev Jain and not by the petitioner. The incorporation of

these facts could, therefore, have no bearing on the bonafide

requirement of the petitioner himself. Moreover, this construction

could not have taken place overnight. The petitioner ought to have

raised the issue, if at all, when the construction was actually raised,

and not belatedly.

8. The second amendment sought for by the petitioner was in

respect of property bearing No.514, Chhatta Hinga Mal, Chhota Bazar,

Shahdara, Delhi, and it was sought to be contended that during the

pendency of the petition the petitioner had sold the said property vide

sale deed registered on 19.09.2008. From the reply filed by the

petitioner it is seen that in respect of the said property the landlord

had already filed on record photographs along with negatives to show

that the suit property was in a unsafe and dilapidated condition, unfit

for human habitation and beyond repairs. The occupants/tenants in

the said property had vacated the premises on account of its said

condition, except one tenant who was occupying one room and one

verandah on the ground floor. The respondent had already taken the

stand on the record that the said building was more than 100 years old

and had been built by using small size bricks. The property was in a

dangerous condition and, consequently, was sold by the respondent in

September, 2008. This being the position already stated on record, in

my view, the amendment sought to be incorporated was frivolous and

the same had been sought only for the purpose of delaying and

embarrassing the proceedings before the learned ARC. The petitioner

has not produced before this Court the photographs filed by the

respondent in respect of property No.514, Chhatta Hinga Mal, Chhota

Bazar, Shahdara, Delhi, which had been filed by the respondent to

show the condition of the said property as Annexure „F‟. I am,

therefore, inclined to draw an adverse inference against the petitioner

that the photographs, if produced, would have demonstrated the

dangerous condition of the said property. Even if this amendment

were to be allowed, from the reply the landlord/respondent it is clear

that it would have no bearing on the question of the respondent‟s

bonafide requirement. Moreover, from the dates given above, it is

evident that this amendment could have been incorporated in the year

2008 itself, when this property was sold and it was highly belatedly

that the petitioner sought the amendment.

9. So far as the third property bearing No.484/6A/2, Shalimar

Park, Bhola Nath Nagar, Shahdara, Delhi is concerned, the petitioner

had sought to contend that the said property had devolved upon the

respondent landlord. The respondent in his response has stated that,

in response to another application moved in February, 2007 (by the

petitioner herein), he had already taken the stand that he had no

concern with the said property. By virtue of a will dated 15.07.1996

left by its owner Sh. Sheetal Prasad Jain, the said property had

devolved upon Sh. Deepak Kumar, who is the son of the daughter of

Sh. Sheetal Prasad Jain and in that property Sh. Deepak Kumar had

been living along with his family since before the death of Sh. Sheetal

Prasad Jain. The respondent-landlord had also filed a copy of the Will

dated 15.07.1996 as Annexure-G in his reply to the said application

filed by the petitioner herein in February 2007. The petitioner has not

produced his earlier filed application (of February, 2007) and the reply

filed by the respondent to that application, much less Annexure-G to

the said reply and, therefore, I am inclined to draw an adverse

inference against the petitioner in respect of the said document/will as

well. From the above narration it is evident that this amendment was

also sought highly belatedly, and therefore, could not have been

permitted.

10. It is well-settled that an amendment of a pleading cannot be

permitted, which may be unnecessary, scandalous, frivolous or

vexatious, or which may tend to prejudice, embarrass or delay the fair

trial of the suit or which is otherwise an abuse of the process of the

Court. This is so because under Order 6 Rule 16 CPC such pleadings,

even if pleaded at the original stage, are bound to be struck out. What

cannot be permitted to remain on record by virtue of Order 6 Rule 16

CPC, certainly cannot be sought to be incorporated by resort to Order 6

Rule 17 CPC.

11. From the impugned order it is seen that the application for

amendment had been moved on 06.02.2009 though the eviction

petition has been pending since 29.11.2006. The amendments sought

to be incorporated were of no relevance to the eviction petition. I am,

therefore, inclined to dismiss this petition with a direction to the

learned ARC to proceed to dispose off the eviction petition

expeditiously and without granting any unnecessary adjournments to

the parties. Ordered accordingly.

VIPIN SANGHI, J.

AUGUST 07, 2009 rsk