Manas Mandir vs Shri Sudhir Kumar Rakheja
2016 Latest Caselaw 3504 Del

$~22 & 23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Date of Judgment : 11.05.2016
+    CM(M) 940/2014
     MANAS MANDIR
                                                          ..... Petitioner
                    Through     Mr. Satish Sahai, Adv.
                    versus
     SHRI SUDHIR KUMAR RAKHEJA
                                                       ..... Respondent

                    Through     Mr. Preetjeet Singh, Adv.

+      CM(M) 941/2014
       MANAS MANDIR
                                                                    ..... Petitioner
                            Through   Mr. Satish Sahai, Adv.
                            versus
       SMT. LAJWANTI
                                                             ..... Respondent
                            Through   Mr. Preetjeet Singh, Adv.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1      The petitioner is aggrieved by the order dated 26.05.2014 vide which

the application filed by him under Section under Order 6 Rule 17 of the CPC

seeking an amendment in his eviction had been dismissed. He is aggrieved

by this finding.

2 Record shows that an eviction petition had been filed by the

petitioner/landlord under Section 22 of the Delhi Rent Control Act (DRCA).

The petitioner has been described 'Manas Mandir'. The sole defendant was

the tenant namely Sudhir Kumar Rakheja. In the course of the proceedings,

the present application came to be filed. Averments made in the present

application have been perused. Contention is that certain amendments are

sought to be made in the eviction petition as also the rejoinder, verification

and supporting affidavits filed by the petitioner which had been filed through

its two trustees (namely K.V.Khandelwal and Devender Kumar Kainth). The

said trustees had been authorized by Resolution (dated 06.04.2009) of the

Trust to file the eviction petition. Their affidavits in support of the petition

clearly described trustees as the trustees of the Vishwa Bharti Ved Ashram

Trust. The proposed amendments seek to place on record petitions,

rejoinders, verification and supporting affidavits which would bear the

signature of Jai Narain Khandelwal who is the Vice-Chairman of Vishwa

Bharti Ved Ashram Trust which at the time of the filing of the first petition

was inadvertently and due to a bonafide error left out. Submission is that

admittedly the Vice-Chairman of the Trust is Jai Narain Khandelwal and the

proposed amendments, if permitted, would only be to the effect that the

amended petition, rejoinder, verification and the supporting affidavits

already signed by the earlier two trustees (namely K.V.Khandelwal and

Devender Kumar Kainth) would now also bear the signatures of the Vice-

Chairman of the Trust. Learned counsel for the petitioner in support of his

submission has placed reliance upon (2006) 1 SCC 75 Uday Shankar Triyar

Vs. Ram Kalewar Prasad Singh and Another, (2006) 6 SCC 498 Baldev

Singh & Others Vs.Manohar Singh and Another as also (2003) 6 SCC 675

Surya Dev Rai Vs. Ram chander Rai and Others. Contention is that the

defects in signing or the authority of person signing pleadings is a handmaid

of justice which is only a procedural formality; law of amendment which is a

liberal law must be appreciated in the correct perspective.

3 Reply had been filed to the aforenoted application. It was denied that

these are only bonafide errors and mistakes. Contention in the reply was that

these defects would amount to filling life into a dead horse. The nature of the

case would change.

4 In support of this submissions, learned counsel for the respondent has

placed reliance upon 1944 AIR (Bom) 201, 1977 AIR (SC) 680 Modi

Spinning and Weaving Mills Company Limited Vs. Ladha Ram and

Company, AIR 1977 SC 1222 Trimbak Gngadhar Telang and Another Vs.

Ramchandra Ganesh Bhide and Other as also AIR 1994 SC 853 S.P.

Chengalvaraya Naidu (dead) by L.R.s Vs. Jagannath (dead) by L.R.s and

Others. Submission being that the amendment, if permitted, would change

the very nature of the case; it would amount to withdrawal of an admission

which is not permitted by law.

5 Arguments have been heard. Record has been perused.

6 The original eviction petition has been filed Manas Mandir. It was an

eviction petition under Section 22 of the DRCA. This petition had been filed

through K.V.Khandelwal and Devender Kumar Kainth, the two trustees. The

eviction petition discloses that the bonafide need of the petitioner (Manas

Mandir) which is the need for a public temple and public institution in the

furtherance of its activities. Para 18-A of the eviction petition while

disclosing this need further states that the public trust under the name of

Vishwa Bharti Ved Ashram Trust has been created and the subject matter of

the eviction petition was dedicated to this Trust. This Trust is a religious

Trust. In pursuance of the aims, objects and purpose of the said Trust, a

public temple under the name and style of 'Manas Mandir' was created. The

Resolution passed by the Public Trust dated 06.04.2009 has been detailed.

Copy of the Resolution has also been placed on record. It is stated that this

petition has been filed against the tenant in pursuance to the aforenoted

Resolution.

7 Before the evidence could begin, the aforenoted application under

Order 6 Rule 17 of the CPC came to be file. This factual position is not

disputed. In this factual scenario, since the trial had not yet commenced, the

applicability of the proviso of Order 6 Rule 17 of the CPC was mis-applied

in the impugned order. That part of the order holding that the trial had

commenced and the proviso of Order 6 Rule 17 of the CPC was an embargo

in allowing the prayer made in the application under Order 6 Rule 17 of the

CPC being a mis-statement of fact, this part of the order is clearly an

illegality. Since there is no dispute to the factual position (admitted by the

learned counsel for the respondent) that the trial had not yet commenced; the

proviso of Order 6 Rule 17 of the CPC would not be applicable.

8 The amendments sought for (as noted supra) appear to be only

bonafide error. Admittedly the eviction petition had been filed through two

trustees. Due to inadvertence, it had not been mentioned in the earlier

petition that the Vice Chairman of the Trust is authorized to sign and verify

the pleadings including the rejoinders and affidavits.

9 The submission of the non-applicant/defendant that the whole nature

of the eviction petition will change is clearly not made out; it is not as if that

the plaintiff by way of this application is seeking to change either the name

of the plaintiff or the foundational facts which are laid down in the eviction

petition. The petitioner/plaintiff remains the same; it is 'Manas Mandir'. In

the eviction petition, 'Manas Mandir' has been described as the Mandir

which has been created by the Trust in furtherance of its aims and objectors;

the Trust is Vishwa Bharti Ved Ashram Trust. The plaintiff is an integral

part of the Trust. The name of the Trust and the copy of the Resolution dated

06.04.2009 on the strength of which two trustees had signed the present

eviction petition is also clearly mentioned in the eviction petition. The rent

note (01.09.1984) relied upon by the respondent in fact supports the stand of

the petition as it has also been executed in favour of the Vishwa Bharti Ved

Ashram Trust-Manas Mandir. By way of this amendment, the plaintiff is

only overcoming the apprehension of a defect which may arise relating to the

institution of the eviction petition. At the cost of repetition, the eviction

petition has been filed through its two trustees on the strength of a

Resolution passed by the Trust; the petitioner has been described as 'Manas

Mandir'. He will continue to remain the same. The amendment, if permitted

will only permit the petitioner to state in the eviction petition that the

eviction petition has been filed through the Vice Chairman of the Trust who

is duly authorized to file and institute the said proceedings.

10 This Court also notes that while allowing a prayer under Order 6 Rule

17 of the CPC, the Court is only permitting a pleading to be incorporated. It

does not amount to a proof. There is a clear distinction between a pleading

and a proof of a pleading. Needless to state a pleading, even if permitted to

be incorporated, would be required to be proved as per law.

11 In the judgment of Uday Shankar Triyar (Supra), the Court while

dealing with the defects in signing or the authority of a person signing the

pleadings in the context of an application under Order 6 Rule 17 of the Code,

had noted that judicial notice can also be taken of various defects which are

routinely found in the vakalatnamas; such failures sometime lead to

complications at later stage. The law on amendment being handmaid of

procedural law, the Court in appropriate cases may exercise this unfettered

discretion fairly to advance the cause of justice.

12 This Court is of the view that the aforenoted ratio would be fully

applicable to the facts of the instant case. What is sought to be incorporated

is an amendment in a procedural error which had crept in because of an

inadvertent or inept drafting. The nature of the eviction petition will not

change. The proviso of Order 6 Rule 17 of the CPC is also not applicable;

impugned order was largely premised on this provision.

13 In this background, the impugned order is liable to be set aside. It is

accordingly set aside. Amended petition is taken on record. This order is

passed subject to payment of cost of Rs.10,000/- in each of the petitions.

14     Petitions disposed of.




                                             INDERMEET KAUR, J

MAY 11, 2016

A