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2000 DIGILAW 1101 (DEL)

VIKRAM SINGH MEHTA v. BAJAJ AUTO LIMITED

2000-12-19

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S. K. Agarwal ( 1 ) THIS order will dispose of plaintiffs application for amendment of the plaint under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure, 1908, for short ( civil Procedure Code ). The question which arises for consideration is whether in a suit for eviction the plaintiff can be permitted to plead a fresh notice to quit served on the defendant after institution of the suit particularly when in the written statement tenant had pleaded that the suit is liable to fail for want of proper notice ? ( 2 ) BRIEF facts necessary for disposal of the application are: that plaintiffs filed the suit for possession and damages / mesne profits alleging therein that they are the owner of premises bearing No. 7/25, Najafgarh Road, Industrial Area, Kirti Nagar, New Delhi (for short suit premises ). The defendant company was inducted as the tenant in suit premises vide lease agreement dated 12. 11. 1965 on a monthly rent of Rs. 3,850. 00, which was enhanced tors. 5,000. 00w. e. f. 1. 10. 1990; the lease was initially for a period of three years which expired on 11. 11. 1968, by efflux of time. However, the defendant continued to occupy suit premises on same terms and conditions and no fresh lease was executed. The plaintiffs served notices dated 29. 4. 1991 and 8. 8. 1997, on the defendant terminating its tenancy; the defendant sent replies dated 14. 8. 1991 and 22. 8. 1997 to the said notices repudiating contents. The plaintiffs have also claimed damages/mesne profits for each month at different rates i. e. , @ Rs. 1,00,000. 00 w. e. f. 12. 11. 1991; @ Rs. 2,00,000. 00 w. e. f. 12. 8. 1997 and @ Rs. 6,00,000. 00 w. e. f. the date of filing of the suit. 8. 1997 to the said notices repudiating contents. The plaintiffs have also claimed damages/mesne profits for each month at different rates i. e. , @ Rs. 1,00,000. 00 w. e. f. 12. 11. 1991; @ Rs. 2,00,000. 00 w. e. f. 12. 8. 1997 and @ Rs. 6,00,000. 00 w. e. f. the date of filing of the suit. ( 3 ) THE defendant filed written statement denying the averments made in the suit inter-alia, pleading that the suit is based on illegal and invalid notices is not maintainable; that the plaintiffs by their conduct had waived of the said notices purporting to terminate their tenancy; the notices were invalid since lease was for manufacturing purposes and the notices served were not in accordance with provisions of Sections 106,107 and 113 of the Transfer of Property Act, 1882 ("t. P. Act"), that the stand taken by the plaintiffs, in the present suit is contradictory to the stand taken by them in their earlier notices, wherein it was claimed that the defendant s tenancy was from year to year basis being for manufacturing purposes. It is further pleaded that the lease document creating lease for a period of three years was required to be compulsorily registered under Section 17 of the Registration Act. It being an unregistered document, is not admissible in evidence. It is also pleaded that the rent payable by the defendant to the plaintiff was attached by the municipal Authorities and that the defendant had been depositing the rent with municipal Authorities with the consent and under information to the plaintiffs. Lastly, it is pleaded that the defendant continues to be legal tenant, as per the oral agreement between the parties, and that the suit is filed with ulterior motives to claim enhanced rent or forcing the defendant to purchase the suit premises at higher rates. ( 4 ) BY this application the plaintiff is seeking to amend the plaint wishing to amend paragraphs 2,3,8,9 and 11 of the plaint and to add new paragraph 8a. The proposed amendments read as under : 8a. That without prejudice to the earlier quit notice and in order to avoid all objections, quit notice dated 9. 5. 1999 was also served. Copy thereof has been filed. The proposed amendments read as under : 8a. That without prejudice to the earlier quit notice and in order to avoid all objections, quit notice dated 9. 5. 1999 was also served. Copy thereof has been filed. Assuming (without admitting) there was any tenancy subsisting at that date, as a result of this quit notice, the surviving tenancy, if any, also stood determined/terminated on the expiry of the period stated. ( 5 ) THERE are also a few other amendments that are sought, most of which were typographical errors. The amendments sought are: " (I) In para 2 the figure of rs. 3,850. 00 needs to be replaced by rs. 3,400. 00 . (ii) In para 3 last line, the word created is to be replaced by the word registered . (iii) In para 8 the words 5/08/1997 need to be replaced by 8/08/1997 which is the date of the notice that was served and replied to. (iv) In para 9 the following words need to be added: in any case it also arose on expiry of the period mentioned the quit notice dated 9. 5. 1999 . (v) In para 11 the following sentence be added: such further Court-fees as the Court orders will be paid . " ( 6 ) THE defendants have filed the reply opposing the said amendments. ( 7 ) I have heard learned Counsel for the parties and have been taken through record. Mr. Ravinder Sethi, learned Senior Advocate for defendant at the outset frankly and rightly stated that the defendants have no objections if the proposed amendments in paragraphs 2,3,8 and 11 of the plaint are allowed. These amendments are in the nature of typographical errors which do not in any way prejudice the case set up by the defendants. Accordingly, these amendments are allowed. ( 8 ) LEARNED Counsel for the plaintiff next argued that during the pendency of the suit, notice to quit dated 9/05/1999 was served on the defendant with a view to avoid any controversy whether tenancy was legally determined or not; that the proposed amendment would not substantially alter the cause of action and that the proposed amendment is necessary and essential to avoid the multiplicity of proceedings. It was also argued that amendments need not necessarily relate back to the institution of the suit and the amendment may be permitted on suitable terms from the date of the order. Learned Counsel for defendant vehemently opposed these amendment. It was argued that suit could not be instituted unless the tenancy was terminated in accordance with law and the termination of tenancy during the pendency of suit would constitute a fresh cause 6f action. If plaintiffs desires to rely upon the notice to quit dated 9/05/1999 they must withdraw the present suit and file a fresh suit, as the proposed amendment cannot relate back to the date of institution of the suit. ( 9 ) IN Jawaharlal Mamtani v. Bhagchand Motumal Mamtani and Anr. , ILR 1981 1 Delhi 1, the Division Bench of this Court considered the question whether an amendment under Order 6, Rule 17, Civil Procedure Code can be permitted to take effect from the date of the application for amendment and not from the date of the institution of the suit ? It was held that the phrase "in such manner and on such terms as may be just" occurring in Rule 17 of Order 6 has to be given its natural meaning and cannot be restricted only to the award of costs. It was observed: "8. I am in entire agreement with the learned Counsel for the respondents that the Court in considering an application for amendment is not allowed to act in the vacuum and must exercise its power by adopting all the rules of judicial discretion. The power, however, cannot be restricted to only a power to award costs. In appropriate cases keeping the plea of limitation in view or other similar aspects in view, the Court may well put the plaintiff or the defendant, whoever is seeking amendment, to such terms as may be just including laying down that the amendment will be effective only from a particular date. To take any other view would amount to restricting the language and importing into it a meaning which the Legislature did not intend to give. " (Emphasis supplied) ( 10 ) THIS Court again considered the question whether each amendment to the pleadings must relate back to the institution of the suit and in Harish Ahuja and Ors. v. C. S. Rekhi and Ors. " (Emphasis supplied) ( 10 ) THIS Court again considered the question whether each amendment to the pleadings must relate back to the institution of the suit and in Harish Ahuja and Ors. v. C. S. Rekhi and Ors. , 74 (1998) DLT 60, it was observed : "12. 4. I am, therefore, of the opinion in the context of amendment of pleadings the doctrine of relation back is not one of universal application. The use of the phrases at any stage of the proceeding and on such terms as may be just , in the language of Order 6, Rule 17, Civil Procedure Code clothes the Court permitting an amendment with a power to direct that amendment shall be effective from the date of the application or the date of the order or such other dates as the Court may deem fit to order, for reasons to be assigned, and the amendment though allowed need not necessarily relate back to the date of institution of the suit. 13. In the case at hand, it is not necessary to express an opinion on the validity of the plaint as originally filed by Ahuja and maintainability of the suit on the plaint as filed. The fact remains that having dumped the plaint in the Court, Ahuja did not vigilantly prosecuted the matter and belatedly it dawned upon him to convert the original plaint into a suit for specific performance and damages failing which his real remedy may be lost. He moved an application but he was conscious that it may or may not be allowed and that is why he made an alternative prayer seeking leave of the Court to treat the suit having been instituted on the date of the application and in the form of the amended plaint filed accompanying the application. It would not make any material difference whether the plaint is permitted to be amended or afresh suit is permitted to be filed on the date of filing of the application so long as the leave to amend is accompanied by a rider that the amended plaint to the extent of the reliefs now added shall be deemed to have been instituted on the date of filing of the application. (Emphasis supplied) ( 11 ) IN this case admittedly after the written statement was filed by the defendant, the plaintiff issued another notice to quit on 9/05/1999 terminating the tenancy which the plaintiff now wants to plead byway of amendment. Learned Counsel for the defendant argued that termination of tenancy is a basic component of the cause of action for institution of the suit for eviction against the tenant. If the plaintiff wants to rely upon the notice to quit dated 9. 5. 1999, he has only two alternatives either he should wait for the result of the present suit instituted on the basis of termination of notices already pleaded and if the suit fails then he can file fresh suit or the plaintiff may with draw the suit and institute afresh suit. I am unable to accept this contention, as such a rigid and technical approach would only result in delay in the administration of justice and nothing else. ( 12 ) IT is now well-settled that the term cause of action can be equated to the right to sue. Speaking broadly it means material facts which the plaintiff must prove in order to succeed. There cannot be any doubt that notice of termination is an essential component for a cause of action in a suit for eviction. That being so notice dated 9/05/1999 served by plaintiffs on the defendant would give rise to a fresh cause of action. The natural consequence of it would be that plaintiffs can file a fresh suit against the defendant qua the same property pleading fresh notice constituting afresh cause of action against the defendant. He need not necessarily wait for the outcome of the suit filed on the basis of the earlier notices. If plaintiffs can be permitted in law to institute a fresh suit 1 see no reason why they cannot be permitted to amend the suit to plead a fresh notice to avoid multiplicity of proceedings on the terms and conditions that it does not in any way cause prejudice to the defendant. As held by this Court in Jawahar Lal Mamtani s and Harish Ahuja s cases (supra) in the context of the amendment of the pleadings, doctrine of relation back is not of a universal application. As held by this Court in Jawahar Lal Mamtani s and Harish Ahuja s cases (supra) in the context of the amendment of the pleadings, doctrine of relation back is not of a universal application. The use of the phrase "at any stage of the proceedings" and "on such terms as may be just in the language of Order 6, Rule 17 of Civil Procedure Code empowers the Court to permit amendment effective from the date of application or from the date of the order as the Court may deem fit. Such amendment need not necessarily relate back to the date of institution of the suit. It is now well-settled that plaintiffs have right to rely upon different rights alternatively, and there is nothing in the Code of Civil Procedure, 1908 to prevent a party from making two or/more inconsistent sets of allegations and claim relief in the alternative. Reference in this regard can be made to the Supreme Court decision in Firm Sriniwas Ram Kumar v. Mahabir Prasad and Ors. , AIR (38) 1951 SC 177. ( 13 ) IN my view the alternatives noted above put forth by the learned Counsel for the defendant may not serve the cause of justice. As observed by the Supreme Court in Partiouleti Venkateswarlu v. Motor and General Traders, (1975) 1 SCC 770 . Procedure is the hand maid and not mistress of justice. The suit is at the preliminary stage. Even issues have not been framed. I am inclined to hold that the cause of justice would be better served if the proposed amendments are allowed, subject to the conditions that the amendment would take effect only from the date of the amendment application and would not relate back to the institution of the suit and that the plaintiff files Court-fee which would have been payable if he was to institute a fresh suit based on the notice to quit, within one month. Such a course would not in any way prejudice the case of the defendant and would avoid delay in administration of justice. ( 14 ) FOR the foregoing reasons, application seeking amendment of the plaint if allowed on the above terms, subject to payment of Rs. 5,000. 00 as costs.