Rameshwar Singh Yadav vs Raunak Singh And Ors.
2013 Latest Caselaw 4829 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Order delivered on: October 22, 2013

+                     C.M.(M) No.1062/2012 & CM No.16692/2012

      RAMESHWAR SINGH YADAV               ..... Petitioner
                  Through Mr. Anil Sapra, Sr. Advocate with
                          Mr.R.K. Saini, Adv.

                           versus

      RAUNAK SINGH AND ORS.               ..... Respondents
                   Through  Mr. H.L. Narula, Adv. for R-1

      CORAM:
      HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. This petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dated 3rd July, 2012 passed by Sh. Harun Pratap, Addl. District Judge, Civil Judge-7, North/Delhi in suit No.447 of 2012 whereby the petitioner's application under Order VI Rule 17 read with Section 151 CPC was dismissed.

2. The brief facts for the purpose of adjudication of the present matter are that the respondent No.1/plaintiff filed a suit for recovery of possession and damages for use and occupation on 22nd June, 2008 which is pending adjudication in the Court of ADJ, Civil Judge-7, North Delhi. The suit property in question is an open plot of land measuring about 213 sq. yds. forming part of Khasra No.400/7 in the Abadi of Ranjeet Nagar, Village Shadipur, Delhi that was let out for a period of twenty years commencing from 21st November, 1962 on a rent of Rs.28/- p.m. to Sh. Tula Ram by one

Sh. Narain Singh vide Regd. Lease Deed executed between the parties on 19th September, 1962 presented before Sub Registrar on 22nd November, 1962 and was registered on 5th September, 1963.

3. Sh. Narain Singh, father of the plaintiff, who was receiving the rent of the said plot from the tenant Sh. Tula Ram, died on 20 th January, 1982 leaving behind three sons as successors namely :

(a) Sh. Balwant Singh

(b) Sh. Shiv Charan

(c) Sh. Raunak Singh (the plaintiff)

4. The tenant (Sh. Tula Ram) also died on 19 th December, 1982 and his tenancy rights to the knowledge of the plaintiff (one of the LRs of the lessor- Narain Singh) were inherited by Sh. Ramesh Singh Yadav the petitioner herein who alone has been in actual and physical possession of the said land.

5. Sh. Shiv Charan, one of the sons and successor in interest of the deceased lessor (Sh. Narain Singh) by notice dated 11th January, 1983 terminated the lease of the plot though it had expired by efflux of time on 20th November, 1982 as the tenant continued to hold over the same. By virtue of the said notice, the petitioner/tenant was also called upon to remove the entire structure existing on the abovesaid plot and to hand over the vacant possession of the same.

6. Since the actual petitioner failed to vacate the same, Sh. Shiv Charan, one of the co-landlords, filed a suit on 10th March, 1983 for the recovery of possession after the termination of the monthly lease of the plot in question. In the said suit the other two co-landlords were also made portion as proforma defendants.

7. The issues were framed in the matter on 5th May, 2011.

8. The plaintiff filed his affidavit by way of evidence on 11th August, 2011. The examination-in-chief of the respondent No.1/plaintiff as (PW1) was conducted on 11th August, 2011 and cross examination was deferred at the request of the petitioner/defendant No.1.

9. As per petitioner, somewhere in the month of August, 2011, the petitioner came to know from the villagers a very vital and material fact that the respondent No.1/plaintiff has been given in a valid and legal adoption way back and therefore, he has no right, title or interest in the demised property and consequently no locus standi to even initiate the suit in question. The petitioner thereafter, confirmed the factum of adoption of the respondent No.1/plaintiff from the PANDA.

10. The petitioner after gaining knowledge about the factum of adoption moved an application under Order 6 Rule 17 CPC for seeking amendment in his written statement on 19th December, 2011 contending therein that the petitioner was given in adoption by the father of the respondent No.1/plaintiff to his brother namely Sh. Sarup Narain. It was alleged by the petitioner that the factum of adoption had come to the knowledge of the petitioner in August, 2011 from the villagers. After adoption, the respondent No.1/plaintiff ceased to be the son/heir of his natural father namely Sh. Narain Singh. Thus he has no right in the estate or properties left by Sh. Narain Singh. Therefore, suit filed by the respondent for possession is not maintainable.

11. It is pertinent to mention here that during the cross-examination of the petitioner, he made certain admissions. The relevant extract of the said admissions is mentioned below :

"It is correct that the tenancy of the suit land was between Sh. Tula Ram and Sh. Narayan Singh by virtue of registered lease deed. No lease deed was executed after the execution of the lease deed Ex.PW1/1. It is correct that the rent of the suit land was being paid by my father Sh. Tula Ram month by month and sometimes for four month and six months together. It do not know whether sale and purchase of the property are being conducted in this area where the suit property is situated. I have no knowledge whether the Government has published the circle rates for the sale of the lands in this area and with regard to the cost of construction for the purpose of sale of the superstructure have been published by the Govt. of NCT. I have not stood as a witness to any of the lease deeds executed with the occupants of the adjacent properties and their lessors as mentioned in para 7 of my affidavit. I have not seen any of the lease deed executed between the occupants of the adjacent properties and their lessors. The occupants had told me about the rate of rent as stated in para 7 of my affidavit. I am filing my income tax returns. I have never filed house tax returns with the MCD. It is correct that Raunak Singh and Balwant Singh were the performer defendants in the earlier suit filed by Shiv Charan against me. It is correct that suit filed by Sh. Shiv Charan against me and my sisters was dismissed in default for no appearance of the plaintiff and his counsel therein. It is correct that the status of the suit land continuous to be the same on rent basis."

12. The other amendment sought by the petitioner in his written statement was that the subject matter of the suit property lies within the urban area of Delhi, hence the provisions of Delhi Urban Areas Tenant Relief Act, 1961 are applicable. As regard this amendment is concerned, the said amendment being legal in nature, even otherwise, no arguments were addressed by the petitioner.

13. It is the admitted position that when the application for amendment was filed, trial in the suit has already commenced as at that time the matter was at the stage of respondents' evidence. The only reason given by the petitioner is that it was only in the month of August, 2011 that the petitioner

came to know from the villagers about the vital and material facts thus the present case is covered within the preview of provisions of Order VI Rule 17 of Code of Civil Procedure and the learned trial court has ignored the proviso while deciding the application of the petitioner.

14. The court is very conscious that while deciding the application for amendment of written statement, normally the court should be more liberal than allowing proposed amendment in the plaint.

15. Having considered the facts of the present case and pleadings available on record I am of the considered view that even if benefit of proviso is given to the petitioner, still the amendment sought by the petitioner is not eligible to be allowed for the following reasons :

i) That the petitioner cannot be allowed to withdraw the admission already made in his written statement dated 8th November, 1983 and his cross-examination extract of same reproduced in earlier part of this order.

ii) The petitioner himself has admitted the relation between the landlord and tenant in evidence which is apparently more truthful as per the case of the petitioner as alleged than the statement made by the PANDA by way of affidavit.

iii) The petitioner by way of amendment is trying to delay the adjudication of the matter as the matter is already fixed by the court for final arguments.

iv) Even counsel for the petitioner after filing of present petition has made the statement before the learned trial court to close the evidence of the petitioner in the order dated 31st January, 2013 before the Addl. Rent Controller who passed the following order :

"Suit No.447/12 Raunak Singh Vs. Ramesh Kumar Yadav 31.01.2013 Present : Sh. H.L. Narula, counsel for the plaintiff.

Sh. R.C. Gupta, counsel for the defendant.

Defendant does not wish to lead any more evidence and hence DE status closed in the view of the separate statement of the counsel for the plaintiff recorded to this effect.

Now to come up for final arguments on 01.03.2013 as per joint request.

Sd/-

(HARUN PRATAP) Civil Judge-7/North/THC/Delhi 31.01.2013"

v) In case wishful thinking of the petitioner is considered then the case of the respondent who has filed the suit for possession of the property would be prejudiced.

16. Thus, the present petition is not sustainable in view of reasons mentioned above. The same is dismissed. The trial court proceedings are expedited in view of delay in the matter for one year caused by the petitioner.

(MANMOHAN SINGH) JUDGE OCTOBER 22, 2013