Prism Cement Ltd. vs Udayan Lal & Anr.
2013 Latest Caselaw 408 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Date of Decision : 29th January, 2013

+      CM(M) 110/2013

       PRISM CEMENT LTD.                                  .... Petitioner
                    Through :            Mr.Akshay Ringe, Adv.

                          versus

       UDAYAN LAL & ANR.                                    ..... Respondents
                    Through :

       CORAM:
       HON'BLE MS. JUSTICE PRATIBHA RANI

%
PRATIBHA RANI, J. (ORAL)

CM Nos.1499/2013 & 1500/2013

1. Exemption allowed, subject to all just exceptions.

2. Applications stand disposed of.

CM (M) No.110/2013 & CM No. 1498/2013 (Stay)

1. The petitioner has filed the present petition under Article 227 of The Constitution of India challenging the order dated 16.11.2012 whereby the application filed by the petitioner (defendant No.1 in CS No.488 of 2006) under Order 6 Rule 17 CPC seeking amendment in the written statement, was dismissed by learned Civil Judge, Delhi.

2. Learned counsel for the petitioner submits that amendment sought to be made in the written statement is necessitated as certain facts came to the notice of the petitioner only after services of defendant No.2, who

was employee of defendant No.1, were terminated by defendant No.1. Thereafter, it was heard that there was a collusion between the plaintiff and defendant No.2. It is necessary to bring these facts on record by amending the written statement by adding sub-para 6A and 7A and also amending para 7 of the brief facts and para 2 of the preliminary submissions.

3. The learned Trial Court, after considering the relevant provisions, observed that the application under Order 6 Rule 17 CPC has been moved at the stage of defendants' evidence. Further, it has not been brought on record by the defendant No.1 that these facts were not within its knowledge at the time of filing the written statement, that defendant No.1 has just vaguely stated about the collusion between the plaintiff and defendant No.2 whereby defendant No.1 has supported the case of the plaintiff putting all the burdens of paying mesne profit/rent on defendant No.1.

4. During the course of hearing, learned counsel for the petitioner has read over the proposed paragraphs No.6A and 7A and para 7 of the brief facts and para 2 of the preliminary submissions, sought to be added and amended, which are reproduced as under :-

PARA 6A

"6A. That the plaintiff and the defendant no. 2 have been in a very good and cordial relationship with each other since last 25 years and both of them have been, under a collusive common agreement and design, deceitfully inducing different companies to become a artificial tenant of the suit property and receiving rents from them, and thus are being mutually benefited and in this manner exploiting different companies and extorting monies from them in the most deceitful, illegal and improper manner since 1981. The plaintiff and defendant no. 2 under a well designed plan, are making and

showing defendant no. 2 as the occupant of the suit property since 1981, while, in fact, the suit property was never in the occupation of defendant no. 2, because during 1981 till date of present suit, plaintiff has been renting out the suit property to different persons and fetching rents from them and simultaneously, during this period, defendant no. 2 has been inducing his various employers to pay rental to the plaintiff. In this manner, plaintiff and defendant no. 2 had, by such deceitful means, been receiving two rents of the suit property simultaneously from two different persons and thus sharing the money between them illegally since 1981. In this deceitful sequence, the moment defendant no. 2 got employment with the defendant no.1, he induced defendant no.1 to take the suit property on lease. The defendant no.1 in good faith, believed defendant no.2 and signed a lease with plaintiff in the interest of defendant no.2. In this lease, defendant no.2 acted as representative and negotiator of both the plaintiff and defendant no.1 and thus he did the entire formalities completed. In fact, neither defendant no.1 had received the quiet, vacant and peaceful possession of the suit property from the plaintiff nor defendant no. 1 had any conversation with the plaintiff regarding taking the suit property on rent nor defendant no.

1 had any need to take the disputed property on rent."

Para 7A

"7A. That before the expiry of the alleged 3 years of the said lease, the plaintiff had, in furtherance of his alleged deceptive agreement and design with defendant no. 2, made a preface to the present suit by giving an alleged illegal notice of termination dated 19.09.1996 to defendant no. 1. The plaintiff had, intentionally, not sent the alleged notice of termination to defendant no. 2, despite the fact that defendant no. 2 was, since 1981 till the date of notice, allegedly in actual physical possession of the suit property. The intention was to save defendant no. 2 from the possible consequences of the suit."

Para 7 of brief facts

"and as requested by defendant no. 2 and agreed by defendant no. 1 that out of the proposed rental of Rs. 15000/- per month, defendant no. 2 will pay Rs. 7500/- per month and defendant no. 1 will pay Rs.

7500/- per month, accordingly both the parties continued to pay rent."

Para 2 of preliminary submissions

"Hence any burden, if arises out of this suit, will lie on defendant no. 2 only."

5. Learned counsel for the petitioner could not point out that from these averments, the Court can even have a faint idea that these facts were not in the knowledge of the petitioner/defendant No.1 at the time of filing the written statement. Rather the proposed amendment suggests otherwise.

6. On the one hand defendant No.1 is claiming defendant No.2 to be his employee, but on the other hand, the petitioner/defendant No.1, by virtue of amendment in para 7, wants to take a plea that out of the proposed rental of Rs.15,000/- per month, defendant No.2 agreed to pay Rs.7500/- per month and balance Rs.7500/- by defendant No.1 (petitioner) and accordingly, both the parties continued to pay the rent. It was put to learned counsel for the petitioner that how an employee is contributing 50% towards proposed rental of Rs.15000/- pm and why this plea is being taken at this belated stage. Learned counsel for the petitioner submitted that this amount of Rs.7500/- used to be deducted from the salary of defendant No.2. If it was a case of employer and employee, the employee is under no obligation to contribute towards rent unless in the garb of employer and employee relationship, it is a case of sub-letting. None of the facts sought to be now incorporated in the written statement can be said to be such which, at the time of filing the written statement, were not within the knowledge of the petitioner

despite due diligence.

7. In the instant case, the trial is just on the verge of conclusion as the case is fixed for defendants' evidence. Issues in this case were framed way back on 26.04.2000 and none of the proposed amendment in the written statement is such which was not within the knowledge of the petitioner/defendant No.1 at the stage of filing the written statement.

8. In the case Ajendraprasadji N.Pande & Anr. vs. Swami Keshavprakeshdasji N. & Ors. AIR 2007 SC 806, the Apex Court reiterated its decision rendered in Vidyabai & Ors. vs. Padmalatha & Anr. AIR 2009 SC 1433, wherein it was held that :

„Proviso appended to Order 6 Rule 17 CPC restricts the power of the Court by putting an embargo on the exercise of jurisdiction in allowing amendment after the commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence the parties could not have raised the matter after the commencement of the trial.‟

9. In the view of the above discussion, I do not find any infirmity or illegality in the impugned order, warrant any interference by this Court. The petition has not merit and the same is hereby dismissed.

10. CM No.1498/2013 is also dismissed.

PRATIBHA RANI, J January 29, 2013 „st‟