M/S Delhi Automobiles & Ltd. vs Kishan Gopal Ahuja & Anr.
2011 Latest Caselaw 935 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Judgment: 17.02.2011

+      R.S.A.No.98/2008 & C.M.Nos. 6226/2008 (for stay) and
       14819/2008 (for discharge of stay order)

M/S DELHI AUTOMOBILES & LTD.             ...........Appellant
                  Through:   Mr. Girdhar Govind, Advocate.

                   Versus

KISHAN GOPAL AHUJA & ANR.                         ..........Respondents
                   Through:           Mr. Vijay Gupta, Advocate for
                                      respondent No. 1
                                      Mr. Sandeep Sethi, Sr. Advocate
                                      with Mr. Syed Naqvi, Advocate for
                                      respondent No. 2.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                  Yes

    3. Whether the judgment should be reported in the Digest?
                                                            Yes

INDERMEET KAUR, J. (Oral)

CM No. 754/2011 in R.S.A.No.98/2008

1 By way of this application, the appellant/defendant seeks an

amendment in the written statement which had been filed by him in

the present suit proceedings in the trial court. The present suit was a

suit for possession, mesne profits and damages. It had been filed on

01.06.2001. Written statement had been filed on 09.06.2001. Suit

was decreed in favour of the plaintiff on 23.04.2005. Regular First

Appeal (RFA) filed against the said proceedings had been dismissed on

13.03.2008. Present Regular Second Appeal (RSA) was filed on

25.04.2008. Present application seeking amendment of the written

statement had been filed on 10.01.2011 i.e. after a lapse of more than

one decade. These facts are admitted and not in dispute.

2 The amendments sought for in the present application are

contained in paras 4, 5 & 6. They read as under:-

"That on or about 01.07.1984, the owner of the premises added a mezzanine floor and the respondent landlord let the mezzanine floor existing in between the ground floor and the first floor of the building of which entrance was from the staircase existing in the main entrance to the building at a monthly rent of `2,050/- and thus a separate tenancy was created by the plaintiff in regard to the mezzanine floor. The parties agreed that the defendant shall pay the rent for the ground floor at the rate of `1,473/- per month and for the mezzanine floor at the rte of `2,050/- per month. Effective from 01.04.1985 the rent payable by the defendant was `1,583/- per month for the ground floor and `2,050/- for the mezzanine floor. From 01.04.1989 the rent payable was `1,628/- for the ground floor and `2,150/- per month for the mezzanine floor. From 01.04.1990 the parties agreed that the defendant shall pay at rent at the rate of `1,856/- for the ground floor and at the rate of `2,300/- per month for the mezzanine floor.

That the defendant company was not functioning for four/five years in a regular manner. The notice alleged to have been sent by the plaintiff was not tendered nor received by the defendant nor by its any Director, Chairman or the principle officer. The alleged signatures on the A.D. is not of any authorized person.

That the plan also shows that the mezzanine floor let to the defendant has a separate and independent entrance from the staircase located in the lobby (main entrance). The defendant is a tenant in respect of ground floor and mezzanine floor. As stated in the preliminary objection there are two separate tenancies and the amount of rent payable in respect of both the tenancies is `1,856/- per month for the ground floor and `2,300/- per month for the mezzanine floor. The site plan supplied to the defendant shows that there are two separate premises constituting two separate tenancies."

3 By way of this amendment what the defendant seeks to

incorporate in the written statement is to state that there was a

distinct and separate tenancy for the ground floor as also for the

mezzanine floor; rate of rent of the ground floor and mezzanine floor

was also distinct and separate; for the ground floor, the rate of rent

was `1,856/- per month whereas for the mezzanine floor, the rate of

rent was `2,300/- per month. He has further sought to incorporate a

submission that the defendant company was not functioning for the

last 4-5 years; notice had not been served upon the company. In para

7 it has been stated that the amendments are in the nature of an

explanation/narration in the written statement and do not change the

character of the suit; no new defence has been raised; these

amendments are necessary to decide the real controversy in question.

4     Application is vehemently opposed.

5     The original written statement filed 10 years ago has been

perused. In this written statement, a specific contention has been

raised that on 01.07.1984, the owners of the premises had added a

mezzanine floor and it had been agreed that separate rent would be

paid for the ground floor and separate rent would be paid for the

mezzanine floor; there was a clear and categorical averment that there

are two separate tenancies qua the ground floor and the mezzanine

floor; the rate of rent was Rs.1,856/- per month for the ground floor

and Rs.2,300/- was being paid per month for the mezzanine floor. In

para 3 of the original written statement, there was a specific denial

about the receipt of the notice dated 09.05.2001; it had been denied

that any such notice has been received.

6 The perusal of the original written statement with the

amendment application (which seeks to incorporate new pleas by way

of this application) shows that these pleas have already been taken in

the original written statement. Even presuming that this application is

allowed as on date, it will not serve any purpose as this has been the

defence of the defendant in the original written statement; there is

nothing more either added or subtracted.

7 Learned counsel for the appellant has placed reliance upon AIR

2009 SC 2544 Sushil Kumar Jain Vs. Manoj Kumar & Anr. as also

upon 30 2009 (9) Scale Olympic Industries Vs, Mulla Hussainy Bhai

Mulla Akberally & Ors. to support his submissions that mere delay is

not sufficient to refuse to allow amendment of pleadings; wherever a

good case is made out, the court should allow the amendment.

8 Arguments have been countered by learned counsel for the

respondent. Attention has been drawn to the proviso of Order 6 Rule

17 of the Code of Civil Procedure (hereinafter referred to as the „Code‟)

(which stood amended by the Amendment Act, 2002). It is pointed out

that there is not a whisper in the present application that after the

exercise of "due diligence", the defendant had been prevented from

making this amendment in the courts below. It is submitted that this

statutory provision itself bars the prayer made in the present

application. Reliance has also been placed upon JT 2011 (1) SC 315

Gayathri Womens Welfare Association Vs. Gowramma & Anr. wherein

the Apex Court had indicated that one of the circumstances which

must be taken into consideration before an amendment is granted is

the delay in making the application for such an amendment and if it

is made, at the appellate stage, the reason why it was not made in the

trial court. In this case, the amendment which had been permitted by

the High Court of the counter claim had been set aside.

9 This is a second appeal Court. The date of filing of original

written statement and the present application seeking an amendment

shows that there was an intervening gap of more than one decade.

That apart as already noted supra, the amendments sought for clearly

show that this is only a delaying tactic on the part of the

appellant/defendant as the pleas now sought to be incorporated

already form a part of his written statement; neither is there any

submission nor there is new fact sought to be brought on record.

There is also no explanation whatsoever on the point of delay.

10 There is no dispute that the amendment of pleadings can be

allowed at any stage and if need be, even at the second appeal stage.

However, each case depends upon on its facts; essential requisites are

that the application must overcome the hurdle of delay in making the

application; the reasons thereof should be given; there should be no

prejudice to other side. None of these has been adhered to. There is

not a single averment in the body of this application as to why this

amendment was not sought earlier while the proceedings were

pending in the trial court or even before the first appellate Court. That

apart as already aforenoted this amendment would serve no purpose.

11 The result is that the application is liable to be dismissed. It is

accordingly dismissed.

R.S.A.No.98/2008

12 This second appeal has impugned the judgment and decree

dated 13.03.2008 which has confirmed the findings of the trial Judge

dated 23.04.2005 whereby the suit filed by the plaintiff Kishan Gopal

Ahuja seeking possession of the suit property and arrears of rent had

been decreed in his favour. The suit premise is bearing No. 3/15-A,

Asaf Ali Road, New Delhi. The plaintiff is undisputedly the owner

landlord of the suit property. The defendant had been let out this

property in the year 1959. The contention was that it was monthly

tenancy. The ground floor and the mezzanine floor had been given to

the defendant. They had defaulted in payment of rent. They had

refused to vacate the suit property inspite of legal notice dated

09.05.2001 terminating its tenancy w.e.f. 10.05.2001. Suit was

accordingly filed.

13 The defence of the defendant as is evident from the written

statement is that there are two separate tenancies i.e. of the ground

floor and the mezzanine floor and separate rent was being paid for

each of the two distinct tenancies. It was stated that the civil Court

has no jurisdiction as bar of Section 50 of the Delhi Rent Control Act,

1958 (hereinafter referred to as the „DRCA‟) is attaracted rent being

below `3,500/- per month. Ownership of the plaintiff was not

disputed.

14 On the pleadings of the parties, following five issues were

framed:-

"1. Whether the separate tenancies were created in respect of ground floor and mezzanine floor and in view of the same whether the present suit is barred under Delhi Rent Control Act? OPD

2. Whether the present suit is bad for non-joinder of the necessary parties? OPD

3. Whether the plaintiff is entitled to the decree for recovery of possession as claimed? OPP.

4. Whether the plaintiff is entitled to the pendentelite and future mesne profits as claimed? OPP.

5. Relief."

15 Trial Judge on the basis of oral and documentary evidence

which included the statement of PW-1 and deposition of DW-1 held

that there was single tenancy which had been created by the plaintiff

in favour of the defendant; rent was being paid by a single cheque; the

documents Ex. PW-1/2 and Ex. PW-1/3 which were the covering

letters tendering the rent had advanced this submission. DW-1 had

himself admitted that the rent of the whole premises was being paid to

the plaintiff by way of a single cheque. The cross-examination of PW-1

by the defendant‟s counsel was also to the effect that the cheques

were being sent to the plaintiff by a single cheque.

16 While dealing with issue No. 2, the Court had returned a finding

that the defendant had attorned to plaintiff No. 2; a single co-owner

can also file a suit without impleading other co-owners. This legal

proposition is not disputed before this Court even today.

17 On the receipt of notice, the Court had returned a finding that

the legal notice dated 09.05.2001 (Ex. PW-1/5) was a valid

termination of the tenancy of the defendant under the provisions of

Section 106 of the Transfer of Property Act (hereinafter referred to as

the „TPA‟). The postal receipts had been exhibited as Ex. PW-1/6 &

Ex. PW-1/7. UPC receipt was also exhibited as Ex. PW-1/8. AD Card

receipt was Ex. PW-1/10. This bore the signature of one Ghani. There

was no specific denial by the defendant that no person by the name of

Ghani had worked with it or that Ex. PW-1/10 was not signed by his

employee. The trial Judge had also noted that the defendant had not

denied the receipt of notice at the residence of Chairman/MD. Receipt

of notice had been validly proved.

18 These fact findings of the trial Judge had been affirmed by the

first appeal court. It had been reaffirmed that the tenancy was a

month to month tenancy. The rent had been tendered by the

defendant to Kishan Gopal Ahuja and Arjun Lal Ahuja. The

arguments urged before this Court that the mezzanine floor was

constructed in the year 1984, had also been gone into in the

impugned judgment. It was noted that it was never the case of the

defendant that there was a floor between the ground floor and the first

floor which was later on let out to the defendant by means of any oral

tenancy; mezzanine floor was already in existence at the time when

the premises had been let out to the defendant; PW-1 in his cross-

examination had clarified that this mezzanine floor was in existence at

the time of letting out of the premises upon which the defendant had

made channels and wooden plans unauthorizedly. The first appellate

court had also noted a fact finding that there was no separate floor

which was let out separately to the defendant and the mezzanine floor

constructed subsequently was a part of the premises which had been

let out to the defendant. There were no two separate and distinct

tenancies; there was a single tenancy; a single cheque was being paid

by the defendant and being received by the plaintiff for the suit

property. Documentary evidence including Ex. PW-1/3 & Ex. PW-1/4

had been adverted to. The defendant had also attorned to Radha Rani

after the death of Arjun Lal; suit filed by a single co-owner was also

maintainable.

19 This is a second appeal Court. It is not a third fact finding

Court. The fact findings have been delved into in detail after scrutiny

of both oral and documentary evidence. It had been established and

proved before the courts below that a single tenancy of the suit

property had been created by the plaintiff in favour of the defendant

for which a single cheque of rent was being paid; it was a monthly

tenancy. Legal notice dated 09.05.2001 had validly terminated the

tenancy of the defendant; it was duly received by the defendant. The

suit for possession and mesne profits was rightly decreed in favour of

the plaintiff.

20 It calls for no interference. At this stage, it is also relevant to

state that three applications had been preferred by the appellant

before the first appellate court; an application under Order 6 Rule 17

of the Code, the second application under Order 41 Rule 27 of the

Code to lead additional evidence and the third application under

Section 151 of the Code directing the plaintiff to file the lease

agreements dated 24.02.1956 and 25.08.1959. All the aforenoted

applications had been dismissed. The application seeking amendment

had been dismissed on the premise that the plea sought to be

incorporated by way of the amendment was already a part of the

written statement which was on the plea of a monthly tenancy. The

application under Order 41 Rule 27 of the Code was dismissed as it

was noted that this provisions cannot be used to fill in any lacuna.

The third application which was an application under Section 151 of

the Code directing the plaintiff to place on record two lease deeds had

also been dismissed on the ground that the tenancy was a monthly

tenancy. Further even if there was any discrepancy in the dates of

termination, in view of provisions of Section 106 of the TPA (which

stood amended by the amendment of 2002 applicable to pending

matters), the requirement of co-incidencing of dates was no longer

necessary.

21 The substantial questions of law have been formulated at page

6 of the body of the appeal. They read as follows:-

"1. Whether the payment of rent of two different tenancies of two different tenanted portion for convenience of Land Lord, would extinguish two different tenancies and make it a single tenancy?

2. Whether the matter which was within the jurisdiction of Delhi Rent Control Act could be entertained by a Civil Court?

3. Whether the tenancy of Limited Company could be taken as terminated by determining the signatures of some stranger on A.D. Card?

4. Whether the tenancy could be terminated by a notice sent by not all the co-owners of Property without having the consent or permission of remaining co-owners?

5. Whether the suit could be filed by only two co-owners, without joining all the co-owners or without having the consent and knowledge or authorization of all the co-owners.

6. Whether the Court could assume and presume on its own the rate of mesne profit without there being any evidence of the plaintiff claiming the mesne profits on a particular rate and admittedly leading no evidence?"

22    They are all facts based.

23    No substantial question of law having arisen; this appeal as also

pending applications are dismissed in limine.




                                             INDERMEET KAUR, J.

FEBRUARY 17, 2011
A