Delhi High Court
Satish Kumar Jain vs Raj Singh Yadav on 31 March, 2009
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.1436/2007 with CM No.14793/2007
Reserved on: March 03, 2009
Date of Decision: March 31st 2009
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SATISH KUMAR JAIN ..... Petitioner
Through Mr.Kailash Sharma, Advocate
Versus
RAJ SINGH YADAV ..... Respondent
Through Mr. Naveen Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
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
MANMOHAN,J
1. Present petition under Article 227 of Constitution of India has been
filed seeking to set aside order dated 27th August, 2007 passed in Suit
No.802/2006 whereby Additional District Judge has dismissed
petitioner‟s two applications filed under Order 6 Rule 17 CPC and under
Order 7 Rule 11 CPC respectively. Relevant observations in the
impugned order are reproduced hereinbelow for ready reference:
"9. In the present case the written statement of the
defendant is to be carefully seen. In the written
statement the defendant has more or less generally
denied the whole of the plaint. There is no specific denial
of the allegations made in the plaint. Due to this fact
there has been a deemed admission on the part of the
defendant to the several allegations made in the plaint.
Not only this, a right has accrued to the plaintiff because
of the deemed admissions.
10. In this regard the law is settled that admissions
cannot be withdrawn by way of amendment but can be
explained away. Now, it is to be further seen that
whether the proposed amendments are merely
explanation to the admissions. In the written statement
the defendant has taken the objection that the plaintiff is
not the landlord of the property and one Smt. Yashwanti
Devi is the landlady. By way of proposed amendment the
defendant has stated that Smt. Yashwanti Devi is a
landlady.
11. In the plaint the plaintiff in Para-4 has specifically
averred that the defendant is a chronic defaulter in
payment of rent and he is in arrears of rent w.e.f.
February, 2002, however, there has been no specific
denial of this fact in the original written statement. By
way of proposed amendment the defendant wants to put
forward that the defendant has made a payment of rent
upto December, 2004. Vide the amendment the
defendant wants to specifically deny that the defendant is
in arrears of any rent. In my opinion there had been
deemed admission on the part of the defendant to almost
all allegations made in the plaint and the proposed
amendments are not mere explanation to the admissions
but an entirely a new case is being put forth. The
proposed amendments are not only amounting to
withdrawal of admission but also has the effect of
disturbing the right accrued to the plaintiff on account of
the previous admissions. This is further fortified by the
rejoinder to reply filed by the defendant/applicant
wherein in Para-1 to 4 on merits, applicant himself states
that the present application would change entire subject
matter of the suit.
12. It is settled law that all amendments shall be
allowed which are necessary for determining the real
question in controversy. It is equally settled law that
amendments should not take away the right accrued to
the other party and should not amount to withdrawal of
admission. The proposed amendments are clearly
withdrawal of admissions.
13. Another aspect which is to be dealt with is as
regards of proviso appended to Rule-17 after the CPC
amendment of 2002 which provides as follows:-
"That no application for amendment shall be
allowed after the trial has commenced, unless the
court comes to the conclusion that in spite of due
diligence, the party could not have raised the
matter before the commencement of trial."
14. Ld. Counsel for the defendant submits that
previously this fact could not be pleaded due to
inadvertence, oversight of the erstwhile counsel of the
defendant. This argument carries no conviction. The
facts which are incorporated in the pleadings are always
supposed to be the facts stated and disclosed by the party
pleading them and not their counsel. It is noteworthy at
this stage that a notice U/S 106 of Transfer of Property
Act had been served upon the defendant and was replied
by the defendant. It is inconceivable that at two stages
i.e. one at the time of replying the legal notice and one at
the time of filing the WS, the defendant‟s counsel omitted
to incorporate the material facts and that too because of
inadvertence and oversight. No plausible explanation has
been given by the defendant as to what prevented him
from seeking this amendment earlier. In my opinion the
whole object of incorporating the proviso to Rule-17 shall
be defeated if such amendments are allowed to be
permitted. Ld. Counsel for the defendant has also sought
to derive strength from the judgments of Apex Court in
case titled as Andhra Bank Versus ABN Amro Bank N.V.
& Others cited as „VI(2007) SLT 653‟, however, the facts
in that case are clearly distinguishable from the facts of
the present case. In the case of Andhra Bank (Supra) the
application for amendment was rejected mainly on the
ground of delay in filing the amendment application. This
is not the case here. In the present case it is not only
belated application but the application is without merits
on many other accounts as elaborated herein above. The
above discussion persuades me to hold that the
application under order VI R. 17 CPC is without any
merits and deserves dismissal. The application is
accordingly dismissed.
15. Now, I shall proceed to decide the application
under order 7 R.11 CPC filed on behalf of defendant......
It is clear from the law laid down in this regard that
to find out the cause of action the court is required to go
through and consider the contents of plaint only. In the
present case the plaint disclosed sufficient cause of
action for proceeding with the case and on the averments
made in the plaint the bar of Delhi Rent Control Act does
not seem to be attracted in the present case. The
application under order VII R.11 CPC is accordingly
dismissed."
2. Learned Counsel for petitioner contended that by way of his
amendment application, petitioner/defendant was only seeking
elaboration of his defence by incorporating a legal plea that trial court
had no jurisdiction to try respondent/plaintiff‟s suit. He further
submitted that trial court should have rejected respondent/plaintiff‟s
plaint and allowed petitioner/defendant‟s application filed under Order 7
Rule 11 CPC as respondent/defendant‟s suit did not disclose any cause of
action.
3. I am of the opinion that as neither the objection relating to
jurisdiction of trial Court nor the fact of payment of rent was taken in the
initial written statement or in the reply to legal notice, the same cannot
be allowed to be incorporated by way of amendment in the written
statement and that too, after trial has commenced. In my view,
application for amendment in the present case was not an elaboration of
defence set up by petitioner/defendant as suggested by petitioner‟s
Counsel, but was an attempt to wriggle out of an admission by amending
his pleading - which is clearly impermissible in law.
4. The approach of a Court while dealing with an application under
Order 7 Rule 11 of CPC has been well-settled by a number of judgments
of Hon‟ble Supreme court as well as this Court. In Raj Narain Sarin
(Dead) through LRs and others v. Laxmi Devi and others, reported
in (2002) 10 SCC 501, it was held that, " it has also been the well-
settled principle of law that the law court should be rather hesitant to
exercise the jurisdiction under Order 7 Rule 11 unless the factual score
warrants such exercise and the matter in issue falls within the four
corners of the requirement of the statute.......". In Popat and Kotecha
Property v. State Bank of India Staff Assn., reported in (2005) 7
SCC 510, Hon‟ble Supreme Court held that, " Clause (d) of Order 7
Rule 7 speaks of suit, as appears from the statement in the plaint to be
barred by any law. Disputed questions cannot be decided at the time of
considering an application filed under Order 7 Rule 11 CPC. Clause (d)
of Rule 11 of Order 7 applies in those cases only where the statement
made by the plaintiff in the plaint, without any doubt or dispute shows
that the suit is barred by any law in force. ........."
5. Keeping in view the averments made in the present plaint, I am of
the view that at this stage respondent‟s suit cannot be said to be not
disclosing any cause of action.
6. I am further of the view that trial Court has given cogent reasons
for rejecting the two applications filed by petitioner. According to me,
the impugned order is neither in excess of jurisdiction nor suffers from
any material irregularity and it calls for no interference in Article 227
jurisdiction.
7. I may also mention that vide my order dated January 30, 2009, I
had directed the petitioner to pay admitted sum of Rs.2,500/- per month
as rent from 2004 to till date within a period of four weeks. It was made
clear that in case said payment was not made within the stipulated
period, interim order in petitioner‟s favour would stand vacated. But
admittedly the petitioner has not complied with said order. In my
opinion, non-compliance of order of deposit of rent also disentitles the
petitioner to seek any relief from this Court. I may mention that Article
227 jurisdiction is a discretionary and an equitable remedy and no party
can claim relief under it, as a matter of right. Consequently, present
petition and pending application are dismissed with costs of Rs. 7,500/-.
MANMOHAN, J
MARCH 31st , 2009
js/rn
