Manoj Saxena vs Ashok Goel & Ors.
2014 Latest Caselaw 6096 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CM(M) No. 295/2014
%                                                    24th November , 2014

MANOJ SAXENA                                              ......Petitioner
                          Through:       Mr. Amitabh Narayan, Adv.


                          VERSUS

ASHOK GOEL & ORS.                                           ...... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.19234/2014 (preponing of date by the petitioner)

Application for preponement is allowed.

CM stands disposed of.

The next date i.e 16.12.2014 stands cancelled.

CM(M) No. 295/2014

1. The petitioner, who is the defendant no.2(ii) in the suit, has

filed this petition under Article 227 of the Constitution of India impugning

the order of the trial court dated 27.11.2013 by which the trial court has

rejected the application filed by the petitioner under Order VI Rule 17 of the

Code of Civil Procedure, 1908 (CPC) for amendment of the written

statement to add a new para 5A as under:-

"5A. That the notice dated 13th August, 1969 is illegal as it has not been issued on behalf of the HUF of which Hira Lal was the Karta. The notice dated 13th August, 1969 was issued in the individual capacity of Shri Khushwaqt Rai and not on behalf of the HUF. The HUF consisted of various members. The notice not having been given on behalf of the HUF is illegal. The suit is liable to be dismissed on this short ground."

2. The plaintiff/non-applicant prayed for dismissal of the

application filed by the petitioner /defendant no.2(ii) on the following

grounds:-

"i. The suit was filed more than 25 years ago in 1982 and the plaintiff's evidence is completed in the matter whereafter the defendants are seeking repeated adjournment. The defendants are enjoying the suit property without paying any charges for the last 25 years and the application is moved with the purpose of delaying the proceedings and since trial of the suit has already commenced a long time ago, the amendment sought cannot be allowed;

ii. The defendants had not been diligent to raise the plea of illegality of the notice dated 13.8.1969 at a proper time and no reason has been given in not taking the plea earlier despite the defendants being aware of all the facts of the case and the status of the property;

iii. The application is not maintainable as Sh. Hira Lal was the exclusive owner of the property and after his death, his only son Sh. Khushwaqt Rai became the owner as the wife of Sh. Hira Lal has predeceased him. The property in question was let out to Sh. Chander Narain by Sh.

Khushwaqt Rai alone and not by the HUF and there was no HUF at all. While replying the said notice, Sh. Chander Narain in his reply dated 25.8.1969 had admitted Sh. Hira Lal to be the exclusive owner of the property and he had nowhere stated that he was the tenant of the HUF and not of Sh. Khushwaqt Rai. Since the objections have not been taken in the written statement, the defendants are stopped to raise objections at this stage;

iv. The plea is barred by the principles of constructive res judicata; and

v. The legality of the notice is a question of law in which no amendment is required and the application has been moved only with the purpose of delaying the proceedings."

3. The trial court has dismissed the application by making

observations that the tenant never disputed that the tenancy was under Sh.

Khushwaqt Rai who was the owner. Trial court observes that there is no

stand in the written statement disputing the ownership of the plaintiff and

before that his predecessor Sh. Khushwaqt Rai of the suit property. Trial

court also notes that the petitioner/defendant no.2(ii) states that he has "now

come to know" is quite clearly an unacceptable basis to seek amendment in

the written statement of a suit which is as on today around 32 years old. The

trial court finally concluded while dismissing the application that the

application was filed with the extraordinary delay and effectively which

would have the effect of withdrawing admissions of the ownership of Sh.

Khushwaqt Rai over the suit property, and hence the application was

misconceived and was liable to be dismissed.

4. The subject suit is a suit for possession admittedly filed in the

year 1982. The suit for possession was filed because as per Section 2(l) of

the Delhi Rent Control Act, 1958 (in short 'the DRC Act') and which

defines a tenant, in case of premises let for residential purposes, only certain

legal heirs of the original tenant whose contractual tenancy is terminated

inherit the tenancy and residential tenancy is not a heritable immovable

property like properties which are let out for commercial purposes in Delhi.

In case, the contractual tenancy of a tenant of a premises let out for

residential purposes is terminated during his life time by a notice under

Section 106 of the Transfer of Property Act, 1882, then, as per Section 2(l)

of the DRC Act, only limited class of heirs inherit the tenancy and after the

death of these legal heirs the tenancy is not inherited or continued further.

The subject suit was filed by the plaintiff/predecessor of respondent no.1,

stating that the suit premises being flat on the first floor of 1325, Fasil Road,

(Kucha Hira Lal) Ajmeri Gate, Delhi-110006 was let out by the predecessor

of the plaintiff Sh. Khushwaqt Rai to Dr. Chander Narain. The tenancy of

Dr. Chander Narain was terminated by a legal notice dated 13.8.1969 and

which was duly replied to by the tenant vide his reply dated 25.8.1969. The

original defendants were the sons of the tenant and who were not pleaded to

be dependent upon the tenant Dr. Chander Narain and therefore they could

not inherit rights as per Section 2(l) of the DRC Act and consequently they

having no right to possession as tenants, and hence the suit for possession

was liable to be decreed because the original defendants could stay in the

tenanted premises as per Section 2(l) of the DRC Act only for one year after

the death of the tenant Dr. Chander Narain. It may be noted that those

persons who do not live with the tenant and are not financially dependent on

the tenant, such persons as per Section 2(l) of the DRC Act only have a right

of one year to stay in the tenanted premises after the death of the tenant. In

sum and substance the cause of action in the plaint was that the contractual

tenancy of the tenant Dr. Chander Narain was terminated by a legal notice

which was duly served upon Dr. Chander Narain who replied to the same,

and since the defendants did not inherit the tenancy rights under Section 2(l)

of the DRC Act, they were liable to hand over possession to the plaintiff/Dr.

Izzat Rai Goela son of the original owner Sh. Khushwaqt Rai and who is

now represented by respondent no.1. To complete the narration it may be

stated that the original defendants died pendente lite and are now substituted

by their legal heirs including the petitioner who is the legal heir of the

original defendant no.2.

5. I really have failed to understand as to how a suit for possession

has continued today for as many as 32 years. Obviously, the defendants in

the suit, including the present petitioner, must be quite competent in using

the legal process to delay the proceedings in the suit, the present petition as

also the subject application under Order VI Rule 17 CPC which has been

dismissed by the trial court being part of these delaying tactics. It is

unacceptable that suits for possession, which are as simple as the subject suit

in which the aspects would be letting out for residential purpose, termination

of contractual tenancy and lack of rights in the legal heirs to stay in the

premises because they were not dependants, should take over 32 years for

disposal in the first stage of the trial court.

6. The subject application under Order VI Rule 17 CPC has been

filed on the ground that the petitioner/defendant no.2(ii) be allowed to add a

para 5A in the written statement and the effect of which para is that the

petitioner wants to deny the ownership of Sh. Khushwaqt Rai in the

suit/tenanted premises by contending that the suit/tenanted premises were

not owned solely by Sh. Khushwaqt Rai but was owned by the HUF of Sh.

Khushwaqt Rai.

7. The amendment sought for on behalf of the petitioner is

misconceived both in fact and in law besides the same not only being grossly

malafide but also hopelessly delayed for not being allowed.

8(i) Firstly, in reply to the legal notice dated 13.8.1989 the original

tenant Dr. Chander Narain in his reply dated 25.8.1989 admittedly did not

take up a stand that Sh. Khushwaqt Rai was not the sole owner. Thus, to

allow the amendment would be to allow the petitioner to withdraw

admissions i.e the non-denial of ownership of Sh. Khushwaqt Rai in the

reply dated 25.8.1989 sent to the legal notice.

(ii) Also, the decree for partition as per which the original plaintiff

Dr. Izzat Rai Goela (son of Sh. Khushwaqt Rai) who became the owner of

the suit/tenanted premises was filed at least over 10 odd years prior to the

filing of the subject application under Order VI Rule 17 CPC and thus

petitioner averring in the amendment application "that the petitioner has now

come to know" is quite clearly a false statement on the fact of it because if

knowledge is derived from the partition decree which was admittedly passed

in the suit no. 77/1971 and copy filed at least over 10 years prior to filing of

the amendment application, it is not believable that the petitioner " has now

come to know" when the application under Order VI Rule 17 CPC was filed.

The stage of the suit when the application under Order VI Rule 17 CPC was

filed was admittedly the stage of defendant's evidence and which I have

commented above is very peculiar, because, even when the subject

application under Order VI Rule 17 CPC was filed and which has been

decided by the impugned order, more than 25 years had passed after filing of

the subject suit.

(iii) Also, it is now well settled law that every co-owner is entitled

to file a suit for possession against the tenant because all that a plaintiff is

required to show in a suit for possession is that he has a better title than the

defendant. The only ground on which tenants can contest such a suit once

the plaintiff in the suit has a better title, is to show that the cause of action in

the suit has to fail because of factual and legal reasons stated for arising of

the cause of action are not established. Therefore, the plea now sought to be

added by the proposed para 5A is wholly misconceived in law because even

if Sh. Khushwaqt Rai was a karta he would be the co-owner of the property,

and surely his son Dr. Izzat Rai Goela would also be one of the co-owners of

the suit property. Sh. Khushwaqt Rai as a co-owner therefore had legal

rights to send the notice of termination of tenancy dated 13.8.1969 and the

plaintiff Sh. Izzat Rai Goela being son of Sh. Khushwaqt Rai and thus also

being a co-owner (though who had become the sole owner by the partition

decree) was surely entitled to file the subject suit relying on the notice dated

13.8.1969. The application for amendment filed by the petitioner/defendant

no.2(ii) was therefore wholly misconceived in fact and in law and has been

malafidely filed only to unnecessarily delay the disposal of the suit for

possession.

9. In view of the above, the present petition being an abuse of the

process of the law is dismissed with costs of Rs. 30,000/-. Costs shall be

paid to the respondent no.1/plaintiff in the suit on account of delay caused to

the disposal of the suit. Also, the trial court is now directed to ensure that

even if day to day hearing is to be given, the same be given, and the suit be

positively disposed of within a period of three months from receipt of the

copy of the present judgment. Trial court must ensure that except for very

grave and urgent reasons no adjournment should be granted to the

petitioner/defendant no.2(ii) or for that matter to any of the defendants, and

adjournment should be granted only subject to very heavy costs.

10. Petition is dismissed in terms of the aforesaid observations.

11. Let a copy of the present judgment be sent to the trial court

being the court of Sh. Jitendra Pratap Singh, Ld. Civil Judge-15, Central, Tis

Hazari Courts, or to his successor court by a special messenger and the trial

court is requested to ensure that the suit is disposed of within three months

of receipt of the copy of the present order. All pending applications will

stand disposed of in terms of the present judgment.

NOVEMBER 24, 2014                            VALMIKI J. MEHTA, J.
ib