Surinder Kumar vs Ved Prakash Gupta & Ors
2014 Latest Caselaw 322 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


                                            Date of Decision: 17.1.2014

+     CM(M) 35/2014


      SURINDER KUMAR                             ..... Petitioner
                  Through:           M.Z. Chaudhary & Mr. Q.H.
                                     Khan, Adv. for petitioner.

                         versus


      VED PRAKASH GUPTA & ORS                     ..... Respondents

Through: None.

% MR. JUSTICE NAJMI WAZIRI (Open Court)

1. The petitioner has impugned an order dated 17.10.2013 whereby

his application under Order 6 Rule 17 CPC for amendment of written

statement filed in the original suit before the Appellate Court was

dismissed. The suit was filed by one Smt. Uma Devi and Sh. Ved

Prakash Gupta claiming that Shop bearing Municipal No.498, Ward

No.7, Chhota Bazar, Shadhara, Delhi was let out to late Sh. Khacheru

Mal, father of Surender Kumar, defendant No.2 (the appellant before the

Appellate Court and the petitioner in this petition) on a monthly rent of

Rs.14.87. Initially only Smt. Uma Devi was the plaintiff but having sold

the suit property to Sh. Ved Prakash Gupta vide sale deed dated 20th

October, 1982, the latter was impleaded as plaintiff No.2. It was the case

of the plaintiffs that the suit property was let out for eleven months. A

rent note dated 31.5.1944 was executed by her. Upon expiry of the said

period, Sh. Khacheru Mal became the statutory tenant. His subsequent

demise was not intimated to her by his sons who continued to occupy the

premises and pay rents to her. Upon subsequently coming to know of his

demise on 7.9.1970, she refused to accept further rents from the

defendants-occupants of the suit premises and called upon them to vacate

it. In default whereof, this suit was filed seeking a decree of possession

as well as for mesne profits and damages. Defendant No. 2 while

contesting the suit questioned its maintainability on the ground that it was

barred by Section 50 of the Delhi Rent Control Act, 1958. He claims to

have become a statutory tenant since the deceased tenant had died as a

contractual tenant. On merits, defendant No.2 pleaded that Sh. Khacheru

Mal became an owner of the premises since it was in his possession and

of his family for more than 50 years through the first tenant. He contends

that thus he became the owner of the property since he was in possession

of the same for more than 30 years without any challenge of his title. The

petitioner relied upon both the contentions i.e. (i) the suit was barred

because of Section 50 of the Act since he had allegedly become a

statutory tenant and (ii) that otherwise he became an owner of the

premises through adverse possession.

2. Counsel for the petitioner states that the defence of the tenant was

three-fold, firstly that prior permission was not taken under the Slums

Areas (Improvement and Clearance) Act, 1958; secondly, that the suit

itself is barred under section 50 of Delhi Rent Control Act and thirdly, the

fact that he is owner of the property in terms of adverse possession over

the so-called tenanted premises. He has suffered the adverse order in the

eviction proceedings and now he wishes to drop the issue of adverse

possession. He states that an eviction petition should sustain itself on its

own strength, and be considered on its own legs and the changing of legal

stand by the respondent/tenant, would not make any difference to the

substantive merit of eviction petition. Therefore, according to him the

impugned order is bad in law for the reasons aforesaid.

3. The Appellate Court dismissed the application on the ground that

although a defendant can set up alternative pleas but the proposed

amendments were such as would substitute in a new cause of action

which were inconsistent or mutually destructive. A plea which amounts

to defeating a legal right accruing to the opposite party; or being malafide

or causing injustice to the other parties cannot be allowed. The Appellate

Court relied upon the judgment in Dewan Kaur vs. Savitri Devi, 154

(2008) DLT 211 (DB) which held that where a defendant denied the title

of the landlord, he would not be entitled to the protection of the Delhi

Rent Control Act and consequently, the bar of section 50 would not

apply. During cross-examination, DW-1 had denied the suggestion that

Sh. Khacheru Mal was the tenant in the suit premises. He claimed

ownership through his father. He further denied the suggestion in the

cross-examination that he had deposed in his affidavit that "if the plea of

ownership of the defendant is not proved then in the alternative, the

defendants are contractual tenants". As per the case put up by the

plaintiffs themselves, the plaintiffs were held to be the owners of the suit

property on the basis of evidence on record. The defendants' claim of

ownership by way of adverse possession was rejected. The Trial Court

relied upon the case of Dewan Kaur (supra). The Appellate Court

considered the law laid down in Jai Jai Ram Manohar Lal vs. NBM

Supply, 1970 (1) SCR 22, Panchdeo Narayan vs. Jyoti, AIR 1983 SC

462, Hundari Bewa vs. Keluni Dei, AIR 1984 Orrissa 37, Akkanagamma

vs. Nageshwariah, AIR 1968 Mysore 266, Gautam Sarup vs. Leela Jetly,

(2008) 7 SCC 85 and finally on B.K. Narayana Pillai vs. Parameshwaran

Pillai, 2000(1) SCC 712 to conclude that the principles of amendment

applicable to amendment of a plaint would be equally applicable for

amendment of written statement, but the said principles would be less

prejudicial in respect of amendment of a written statement, thus calling

for more liberalism in the latter instance. It reasoned however, that while

defendants would have a right to set up alternative pleas, it could not

extend to amendments which would substitute a new cause of action on

the basis of which the original defence was raised or be inconsistent or

mutually destructive allegations.

4. The Appellate Court reasoned that the main defence of the

defendant was that his father had become the owner of the suit premises

by way of adverse possession, although in the cross-examination he had

denied the suggestion that he was a statutory tenant. The Court relied

upon this Court's judgment dated 27.2.2012 in RFA No.74/2002 which

held that the tenant would be entitled to a protection under section 50 of

the DRC Act only where the relationship of the landlord and a tenant was

not disputed. Therefore, once a statutory tenant refuted title of his

landlord, he forfeits the protection under the Act. In the present case, the

moment he refused the title of the plaintiff, he lost protection of the DRC

Act. The Trial Court had already rejected the defendants' case of adverse

possession. The case before the Appellate Court was whether the

defendant No.2 could be permitted to amend his written statement so as

to draw the plea of adverse possession at the stage of appeal. The

amendment was disallowed because i) the defendants had lost the

protective cover under DRC Act, which accrued a valuable right in favour

of the plaintiffs; ii) that serious injustice would be caused by permitting

the amendment and that too at the appellate stage if the defendants were

to drop their plea of adverse possession. It would also amount to setting

up an entirely new case in appeal. That having suffered an adverse order

on the basis of the defence raised before the Trial Court, the defendant

could not be permitted to get around his defeat by amending pleadings at

the appellate stage.

5. In view of the preceding discussion, this Court is of the view that

conclusion arrived at and the reasons therefor as plausible and indeed

sound; the impugned order does not suffer from any infirmity warranting

the interference of this Court in its revisionary jurisdiction. The

alternative pleas raised by the petitioner are mutually exclusive and

destructive of each other. It was open to the defendant No.2 to base his

defence either on the basis of adverse possession or as a statutory tenant

under the DRC Act. Having chosen to press both the defences, the

defendant suffered the inevitable fate of his mutually conflicting

contentions ultimately destroying each other. Either of his defences

cannot now be revived where both have suffered a legal death. I am

unpersuaded by the arguments of the learned counsel for the petitioner to

arrive at a different view and to set aside the impugned order. The

petition is without merit and is accordingly dismissed.

NAJMI WAZIRI (JUDGE) JANUARY 17, 2014/ak