Delhi High Court
Numesh Arora vs Ms Nayyarah Qaiser on 2 June, 2021
$-Suppl.-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: June 02, 2021
+ CM (M) 395/2021
NUMESH ARORA .....Petitioner
Through: Mr. Parikshit Mahipal, Advocate
Versus
MS NAYYARAH QAISER .....Respondent
Through: Mr. S.D. Ansari and Ms. Sana
Ansari, Advocates
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
[VIA VIDEO CONFERENCING]
ASHA MENON, J: (Oral)
CM APPLN. 18044/2021 (Exemption)
1. Allowed, subject to all just exceptions.
2. The application stands disposed of.
CM (M) 395/2021, CM APPLN. 18043/2021 (by the petitioner u/S 151
CPC for stay)
1. This petition has been filed by the respondent before the learned
Rent Controller, Tis Hazari Courts, Delhi, being aggrieved by the
rejection of his appeal filed under Section 38 of the Delhi Rent Control
Act 1958, by the learned Principal District & Sessions Judge/Rent
Control Tribunal, vide orders dated 15th April, 2021 in RCT No. 72/2019.
2. The respondent herein had filed an eviction petition under Section
14(1)(d) of the Delhi Rent Control Act and had alleged that the premises
had been let out for residential purpose but that the present petitioner was
not residing therein. In the written statement filed by the present
petitioner, it was submitted that there was no relationship of landlord and
tenant and the premises were commercial in nature. An amendment
application was moved by the present petitioner under Order VI Rule 17
CPC with a prayer to incorporate therein a plea of adverse possession. It
was claimed that the petitioner had obtained the premises from the
Custodian and a sum of Rs.4/- per month had been paid to the Custodian.
3. The amendment application was dismissed by the learned
Additional Rent Controller on the ground that the facts sought to be
incorporated in the written statement were very much in the knowledge of
the present petitioner at the time of filing of the written statement and
there has been no explanation advanced why these were not taken at the
initial stage itself. It was also observed that the amendment was neither
necessary nor relevant for the disposal of the eviction petition.
4. Aggrieved therefrom, the petitioner approached the learned Rent
Control Tribunal, which upheld this order of the learned Additional
Rental Controller, observing that admittedly the chief examination of the
first witness of the eviction petitioner had been recorded by the time the
petitioner herein had filed the amendment application and therefore the
trial had commenced. Further, it was observed that it was nobody's case
that in spite of due diligence the appellant could not have been pleaded
ownership by adverse possession in the written statement prior to the
commencement of the trial. It also observed that by claiming ownership
by way of adverse possession, the petitioner was now trying to withdraw
the admission of his status as a tenant which could not be permitted by
way of an amendment.
5. Aggrieved by these conclusions of the learned Principal District &
Sessions Judge/Rent Control Tribunal, the present petition has been filed.
Mr. Parikshit Mahipal, learned counsel for the petitioner submitted that
the learned Rent Control Tribunal had failed to follow the judgment of
the Supreme Court in Mohinder Kumar Mehra vs. Roop Rani Mehra &
Ors. (2018) 2 SCC 132, inasmuch as the amendment sought was crucial
for the determination of the controversy between the parties.
6. The courts below had declined to allow the amendment primarily
on account of the fact that the facts sought to be incorporated were those
already known to the petitioner when the written statement was filed. No
explanation to meet these observations of the courts below is
forthcoming. If the claim of the petitioner is that the petitioner was
paying rent to the Custodian, then that fact would have been known even
at the time when the written statement was filed. There is an absence of
diligence in filing the written statement with all the available pleas.
7. Learned counsel further submits that there are admissions made by
the respondent herein, who filed the eviction petition on the basis of
which the present amendment is being sought. If that be so and there are
any such admissions that enure to the petitioner, those would be available
even without the need to amend the written statement. Learned counsel
further submitted that long possession of the petitioner is admitted and
therefore raising a plea of adverse possession was compatible with that
plea, though he concedes that the two concepts are not the same.
8. With regard to the submission of the learned counsel for the
petitioner that the amendment sought was crucial to the determination of
the real controversy between the parties, suffice it to note that the
question of ownership and title is beyond the jurisdiction of the Rent
Controller.
9. Even in Mohinder Kumar Mehra (supra), filing of an amendment
application after the commencement of recording of evidence has been
deprecated. The learned Rent Control Tribunal has followed that
judgment and there is no error or perversity in the judgment of the
learned Rent Control Tribunal in this regard.
10. In the circumstances, there is no cause shown for interfering with
the judgment of the learned Rent Control Tribunal. Accordingly, the
present petition which lacks in merit is dismissed in limine. The petition
as well as pending application are disposed of.
11. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
JUNE 02, 2021
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