Dr. Ashok Jolly vs Shashi Prabha
2012 Latest Caselaw 4079 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                               CM (M) 770/2012

                                                      Date of Decision:11.07.2012

DR. ASHOK JOLLY                                                    ..... Petitioner

                          Through:     Mr.Ratan K.Singh, Adv. with Mr.Nikhilesh
                                       Krishnan, Mr.Gaurav Dudeja, Mr.Suraj
                                       Prakash, Mr. Sarad Sunny, Advs.

                                      Versus

SHASHI PRABHA                                                   ...... Respondents

                          Through:     Mr.R.S.Sahni, Adv. with respondent in
                                       person.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

1. The present petition has been filed under Article 227 of the Constitution of India challenging the order dated 24.05.2012 passed by the ld. ARC, whereby the application filed by the petitioner under Order 6 Rule 17 of the Code of Civil procedure (here in after referred to as CPC) was dismissed.

2. The brief factual matrix of the case is that the respondent is an owner of entire property No.D-62, Kirti Nagar, Delhi comprising of ground floor, first floor and second floor. The ground floor has three rooms, one of which is tenanted to the petitioner from where he runs a clinic. The respondent filed an eviction petition under Section 14 (1) (e) read with Section 25-B of the Delhi Rent Control Act (DRCA) against the petitioner in respect of the said

shop, alleging bonafide requirement of the shop for enabling her son to setup his business in the said shop. Upon receiving summons, the petitioner filed an application praying for grant of leave to defend and raised various objections against the eviction petition. Consequently, reply to the application for grant of leave to defend was filed by the respondent.

3. After filing the rejoinder to the application, the petitioner filed the application for amendment of the application for leave to defend, submitting that he requires bringing on record subsequent developments which are necessary for the disposal of the eviction petition. It was submitted by him that the respondent had filed two eviction petitions against the tenants of the two other shops situated at the ground floor of the property, adjacent to the shop occupied by him, which were allowed and the respondent was now in possession of those two shops which would meet his requirements. The said application was dismissed by the ld.ARC rejecting the submission of the petitioner. Hence, the present petition.

4. The petitioner has reiterated the contentions that were put up by him before the learned ARC. The main thrust of his arguments is that as the two shops on the ground floor of the suit premises are now available to the respondent, the requirement as alleged in the eviction petition stands fulfilled and hence, the petitioner should not be forced to vacate the shop in his occupancy. Reliance has been placed on Ved Prakash and Anr. Vs. Om Prakash Jain, CM (M) 759/2009 decided on 07.08.2009 to emphasize that if the amendment application had been filed within the stipulated time then the applicant should be allowed to bring on record subsequent developments.

5. On the other hand, the respondent has contended that in the eviction petition filed by him, he had already pleaded the requirement of all the three shops situated on the ground floor of the suit premises and hence, the subsequent possession of the other two shops does not meet his requirements entirely and this event can certainly be not termed as one which was required to be brought on record or be called a subsequent event.

6. I have heard the rival submission of the parties and perused the record.

7. Order 6 Rule 17, CPC provides the opportunity to the tenant/defendant to amend the application for leave to defend after obtaining prior permission of Court if any subsequent development takes place which is essential to bring on record for the adjudication of the eviction petition. From the perusal of the eviction petition, it is evident that in Para 18 (a), the respondent has mentioned in unequivocal terms that he requires all the three shops situated on the ground floor of the suit property for the business of his son. It was also mentioned by the respondent that he is also filing the eviction petition against the two other tenants occupying the adjacent premises. Since this fact was already disclosed by the respondent in the eviction petition, the outcome of the other two eviction petitions does not qualify to be termed as a subsequent development which was not in the notice of the court previously. From the inception of the eviction petition, the respondent has maintained his stand that he is in need of all the three shops on the ground floor of his property. Now that, he has been granted eviction decree in respect of the other two shops, this fact does not contain any information that could lend weight to the petitioner's case or could adversely affect the respondent's stand. In the facts and circumstances of the case, I do not

consider that the possession of the other two shops on the ground floor of the suit premises reverting to the respondent is an event which could merit grant of leave to amend the application filed under Section 25-B of DRCA.

8. The ratio laid down in Ved Prakash and Anr. (supra) is that amendment because of subsequent development has to be done within stipulated time with prior permission of court. This settled legal position is not disputed, but in the present case, the question before us is as to whether the development as alleged by the petitioner is subsequent and not in prior notice of the court or not. Consequently, the judgment of Ved Prakash (supra) is not applicable to the present case.

9. In view of the above discussion, I find no infirmity or illegality in the impugned order of the learned ARC.

10.The petition is hereby dismissed.

M.L. MEHTA, J.

JULY 11, 2012 akb