Dinesh Kumar Swarup vs Harish Chawla & Ors.
2013 Latest Caselaw 5251 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Judgment pronounced on: November 18, 2013

+            CM(M) 1287/2010 & CM Nos.18351/2010 & 2545/2011

      DINESH KUMAR SWARUP                      ..... Petitioner
                  Through Mr.Dinesh K.Garg, Adv. with
                          Mr.Dhananjay Garg & Mr.Abhishek
                          Garg, Advs.

                          versus

      HARISH CHAWLA & ORS                                 ..... Respondents
                  Through              Mr.S.N.Kumar, Sr.Adv. with
                                       Mr.K.B.Soni, Adv. No.1.
      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The present petition has been filed under Article 227 of the Constitution of India, challenging the impugned order dated 20th May, 2010 whereby the learned Additional District Judge allowed the application filed by the respondent under Order 6 Rule 17 of the C.P.C seeking amendment of written statement.

2. The main grievance of the Petitioner is not the amendment of Paras 12 and 13 of the Written Statement but the additional plea taken wherein the defendant has sought a prayer that the relief of possession cannot be granted against only one co-tenant, the other co-tenant, whose name has already been deleted, is required to be added. The contention of the Petitioner is that once the name of the co-tenant has been directed to be deleted by a court- order dated 25th May, 2006, this additional plea is not permitted.

3. Brief facts relevant for adjudication of the matter are:

i. The petitioner filed a suit for recovery of possession and damages against the co-tenants/ Defendants 1 titled Smt Rakhi Jain and Ors Vs. Sh. Harish Chawla and Ors" for suit property in the name of M/s Krishna Roller Flour Mills. The tenancy was created for a portion of the premises via Registered Lease Deed.

ii. As per the pleadings of the Plaintiff, the Defendant No. 3 (Sh.

Deepak Dewan), in his capacity of being a joint Receiver of the property, terminated the tenancy of the Defendant No. 1 and 2 to quit the demise property, and the Defendant No. 1 and 2 failed to do so upon the expiry of the stipulated time.

iii. It was contented that the notice of termination dated 4th April, 1989 is not valid and legal notice under law because Section 106 of Transfer of Property Act requires that a lease of immovable property let out for manufacturing purpose is terminable by 6 months prior notice, whereas in the present case the tenancy was terminated by giving only 15 days' notice. Owing to the above facts the Defendants/ applicant seeks to amend their written statement.

iv. Upon filing of application under Order 1 Rule 10 CPC of the petitioner, Court deleted the name of defendant no. 2 ( Sh. S.M Aggarwal) as co-tenant along with defendant No. 1 vide order dated 25th May, 2006. It is further submitted that in view of the matter the relief of possession cannot be granted in favour of plaintiff and against defendant No. 1/applicant, and therefore prayed to amend the written statement with an additional plea.

v. Plaintiff No. 1-3 raised objections to the application claiming the application to be non-maintainable and is merely a tactic to delay the proceedings. It is also stated that the defendant No. 1 has claimed to be the owner of the suit property on the basis of the alleged adverse possession, and in that respect the question of a notice of termination weather for 15 days or 6 months holds no ground.

4. After perusal of all the material on record the Ld. ADJ passed the Impugned Order to allow the amendment of the Written Statement on behalf of the defendant, observing that the amendment claimed appears to be relevant for adjudication of the matter in controversy, and also took the view that since the evidence in the matter is yet to commence, hence such amendment would not cause any prejudice to the plaintiffs. Relied in this order are judgments of Ragu Thilak D John Vs. S Rayappan & Ors (2002) 2 SCC 472 and Sampath Kumar Vs. Ayyakannu & Anr AIR 2002 SC 2269- wherein it is held that the dominant purpose of Order 6 Rule 17 is to minimize litigations and curtail multiplicity.

5. Aggrieved by this, the present petition has been filed on the grounds that the learned Additional District Judge erred in allowing the amendment to written statement after a period of 8 years of the pendency of the suit and after 2 rounds of litigation, after framing of the issues and also after the dismissal of application filed by the defendants/respondents under Order 7 Rule 11 of the CPC.

6. The prayer of the present petition was opposed by the respondent mainly on the reason that it is the petitioner who got deleted the name of one co-tenants i.e. Sh.S.M. Aggarwal. The respondent No.1, the surviving

tenant, sought amendment in the written statement. According to the respondent No.1, the suit for possession cannot be decreed against one co- tenant. It is a legal issue and the respondent No.1 cannot be estopped from taking a legal plea which is open to him. Thus, the petition is liable to be dismissed.

7. The main question before this Court is as to whether the trial court was right in allowing an additional plea made in the application filed by the respondent No.1 under Order VI Rule 17 CPC to amend the written statement and to resile from certain averments made in the written statement after a period of nine years of the pendency of the suit and that too after two rounds of litigations before this court and after dismissal of Special Leave Petition No.6316/2009 by Supreme Court filed by the respondent No.1.

8. Having considered the entire gamut of the matter, pleadings and submissions of the parties, I am of the view that as far as the additional plea raised by the respondent in the application for amendment could not have been allowed to incorporate in the proposed written statement, therefore, the impugned order in this regard is liable to be set aside on the following reasons:

a) Admittedly, the premises in dispute was given on lease jointly to Sh.S.M. Aggarwal and Sh.Harish Chawla on 27th April, 1978 through a registered lease deed registered on 11th July, 1978.

b) Some dispute arose between the lessees Sh.S.M. Aggarwal and Sh.Harish Chawla and Sh.Harish Chawla filed a suit, being Suit No.335/1996, before this Court against Sh.S.M. Aggarwal.

c) This Court by order dated 11th April, 1997 passed a decree reliving S,.M. Aggarwal of all business relations with Harish Chawla and also of all the liabilities which had accrued to M/s. Krishna Roller Flours Mills.

d) As Harish Chawla and S.M. Aggarwal, the lessees, failed to pay the lease rent, the petitioner herein filed a suit, being Suit No.867/2001, before this Court for recovery of possession of lease premises and a sum of `15,00,000/-.

e) In the said suit, written statement was filed on behalf of Harish Chawla and S.M. Aggarwal on 25th October, 2002. During the pendency of the suit, the petitioner filed an application under Order XXXIX Rule 10 CPC for direction to S.M. Aggarwal and Harish Chawla to deposit a sum of `2,35,000/-.

f) The said suit was transferred to the District Court for pecuniary jurisdiction and the same renumbered as Suit No.66/2004.

g) After having come to know about the order dated 11 th April, 1997 whereby S.M. Aggarwal was relieved of all business relations with Harish Chawla and also of all the liabilities, the respondent filed an application under Order I Rule 10 CPC for deleting the name of S.M. Aggarwal. The said application was allowed by learned Additional District Judge by order dated 25th May, 2006 and not only that the court also allowed the application filed by the petitioner under Order XXXIX Rule 10 CPC by order dated 25 th January, 2007.

h) The Revision Petition filed by Harish Chawla was dismissed on 9th February, 2009 with cost of `50,000/-. Special Leave Petition (Civil) No.6316/2009 was also dismissed on 27th March, 2009 by the Supreme Court.

i) It is also the admitted position that the application filed by Harish Chawla was also dismissed by order dated 18 th May, 2009 and the issues were framed by order dated 29th July, 2009. Against order dated 18th May, 2009, Harish Chawla filed a Civil Revision No.120/2009 before this Court and the same was also dismissed on 28th August, 2009.

j) After expiry of eight years, the respondent No.1 Harish Chawla filed an application under Order VI Rule 17 CPC which was allowed by the Additional District Judge by the impugned order dated 20th May, 2010.

9. As far as paras 12 and 13 of the written statement are concerned, the petitioner has no grievance about the same. The petitioner's grievance is on additional plea to be raised in the written statement that the relief of possession cannot be asked for against defendant No.1 alone and S.M. Aggarwal, the defendant No.2 is required to be added.

10. I am of the considered view that the said plea of the respondent is unnecessary and it has been raised by the respondent in order to further delay the matter. The said plea has been made after a period of nine years which could not have been allowed in the application under Order VI Rule 17 CPC filed by the respondent as it was raised merely to get the benefit for delay.

11. The lease in question was for five years which had already expired long back in the year 1983. In view of the facts and circumstances of the case that if the respondent is now allowed to add additional plea in the written statement, there would be further delay in the suit proceedings and the respondent will enjoy the premises despite of expiry of lease deed in question.

12. The factum of passing of a decree in the suit filed by the respondent against S.M. Aggarwal whereby he was relieved of all business relations with Harish Chawla and also of all the liabilities which had accrued to M/s. Krishna Roller Flours Mills has not been disputed by the respondent. Allowing of application on 25th May, 2006 which was filed on the basis of the decree passed in 1997 is also not denied by the respondent No.1. The said order was challenged by the respondent No.1 upto the higher court i.e. Apex Court of India. Even the application under Order VII Rule 11 CPC filed by the respondent No.1 was dismissed.

13. In view of the above said facts and circumstances of the case, the impugned order dated 20th May, 2010 is set aside.

14. However, it is clarified that as far as the application under Order VI Rule 17 CPC is concerned, that would be restricted only to the amendment of paras 12 and 13 of the written statement. The additional plea raised by the respondent in the said written statement is rejected.

15. The petition is disposed of according.

(MANMOHAN SINGH) JUDGE NOVEMBER 18, 2013