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2002 DIGILAW 192 (DEL)

P. KUMARI v. NEW DELHI MUNICIPAL CORPORATION

2002-02-08

P.C.JAIN

body2002
R. C. Jain ( 1 ) THIS civil revision is directed against the order of the learned Additional District Judge, Delhi dated 15. 5. 2001 by which an application under Order 6 rule 17 Code of Civil Procedure moved on behalf of the defendant-respondent/ndmc seeking amendment of written statement has been allowed. ( 2 ) BRIEFLY stated, the relevant facts giving rise to the present revision are that the petitioners herein had filed a suit for declaration that they are the lessees of the defendant in respect to respective shops in Palika Bazar and in the alternative their licence had been renewed on or about 29. 10. 1983 and the defendants were estopped from imposing any fresh terms and conditions and also for permanent injunction for restraining the defendant-NDMC from taking any action with respect to the cancellation of the licence and dispossession of the plaintiffs from the shops in question. The suit was initially filed in the High court and was contested by the defendant and trial also proceeded in the High Court untill it reached at its fag end i. e. final arguments stage when it stood transferred to the District Court consequent upon the enlargement of the pecuniary Jurisdiction of District courts, when the matter was pending before the additional District Judge for arguments, an application under Order 6 Rule 17 Code of Civil Procedure was made on behalf of the respondent-defendant-NDMC on 24/1/2001 seeking permission to amend the written statement more particularly to add following two objections as preliminary objections No. 8 and 9 :- "8. THAT the suit is not maintainable for want of service of mandatory notice as required u/s 49 of P. M. Act, 1911. 9. That the provisions of Public premises (Eviction of Unauthorised Occupants) act applicable to the premises in dispute. The present suit is not maintainable. THAT the suit is not maintainable for want of service of mandatory notice as required u/s 49 of P. M. Act, 1911. 9. That the provisions of Public premises (Eviction of Unauthorised Occupants) act applicable to the premises in dispute. The present suit is not maintainable. " ( 3 ) THE application was opposed on behalf of the plaintiffs, inter alia, on the ground that the amendment application was highly belated having been filed at the fag end of the trial after a lapse of 15 years; allowing the application at that stage would cause serious prejudice to the plaintiffs since a vested right had already accrued in favour of the plaintiffs by not raising the proposed objections in the written statement and it also amounted to waiver of the right of the defendant-NDMC with regard to the service of statutory notice. Yet another objection was that the defendant is estopped from raising the above objection/pleas by way of amendment. It was also disputed that the suit premises were public premises within the meaning of Public Premises Act. Learned trial court on a consideration of the matter has allowed the application and permitted the petitioner to incorporate the said objections in the written statement primarily on the view that the same is necessary for just and proper adjudication of the question in controversy and that the law with regard to the amendment of pleadings is liberal and more tilted in favour of allowing the amendment rather than refusing the same. Aggrieved by the said order, the plaintiffs have filed the present revision. ( 4 ) I have heard Mr. Neeraj Malhotra counsel for the petitioner and Ms. Hema Kohli for the NDMC and have given my thoughtful consideration to their respective submissions. Aggrieved by the said order, the plaintiffs have filed the present revision. ( 4 ) I have heard Mr. Neeraj Malhotra counsel for the petitioner and Ms. Hema Kohli for the NDMC and have given my thoughtful consideration to their respective submissions. In order to assail the impugned order as illegal, the learned counsel for the petitioner has strongly urged that it would cause serious prejudice to the petitioners if the proposed amendment is allowed because on one hand, it would deprive the plaintiffs of their vested right which have accrued in their favour on account of the defendant-NDMC having not raised any objection with regard to the non-service of the notice under Section 49 of the P. M. Act, 1911 and on the other hand it would deprive the plaintiffs from filing a fresh suit on the same cause of action by virtue of the bar envisaged in rule 2 of Order 23 Code of Civil Procedure because the fresh suit will be barred by limitation. In this regard the learned counsel for the petitioner has heavily relied upon a supreme Court decision in the case of Gauri Shankar vs. M/s. Hindustan Trust (Pvt) Ltd. and Ors. AIR 1972 SC 2091 . In that case the Court considered the question whether the plea with regard to the service and validity of notice terminating the tenancy could be raised at the appellate stage and after lapse of about eight years. The High Court had taken a view in the affirmative but the Supreme Court answered the question in negative by holding :- IT is true that a question not agitated before the lower appellate court or expressly given up there can be followed to be raised if it is a pure question of law but in permitting the same to be done the court has to consider whether in exercise of proper and judicial discretion, such a point should be permitted to be agitated when it has been conceded or abandoned before the court below. while giving permission to argue that point the court has to look at all the facts and circumstances the conduct of the parties seeking to raise that point is of great importance. XXX XXX XXX ultimately when the suit for eviction was filed in 1959 it dragged on for several years. while giving permission to argue that point the court has to look at all the facts and circumstances the conduct of the parties seeking to raise that point is of great importance. XXX XXX XXX ultimately when the suit for eviction was filed in 1959 it dragged on for several years. , In the written statement which was originally filed no plea was taken that a valid notice to terminate the contractual tenance had not been served and therefore the petition for eviction was not maintainable. The respondent waited for 8 years before seeking an amendment to include a plea on the absence of such a notice. The. trial court did allow the amendment but in our opinion no such amendment should have been allowed on accont of the gross delay and laches on the part of the respondent raising such a plea In such matters it must be remember that a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could withdrawn the petition for eviction for even liberty to file another petition after serving the requisite notice. But no raising that plea for nearly 8 years as great deal of prejuduce was caused to the appellant. It has been pointed out by Mr. Chagla on behalf of the respondent that an appeal was competent against the order allowing amendment under Section 38 (10 of the Rent act and since no such appeal was filed the order allowing amendment become final. without expressing any opinion whether such an order could be appealed against and on the assumption that an appeal was competent the question still remains whether the learned judge of the High Court while allowing a point to be raised after it had been abandoned before the Rent control Tribunal should or ought to have taken this fact into consideration and in combination with other facts should have disallowed any argument on the question of the invalidity of the notice. In our judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control tribunal were more than sufficient to persuade the court that any argument based on the absence of a valid notice should not have been allowed. " (emphasis supplied) to reinforce his contention that the defendant-NDMC shall be deemed to have waived the objection with regard to the non-service of notice, learned counsel for the petitioner has also relied upon a decision of the Madhya Pradesh High Court reported as Jugalkishore Kabra and Ors vs. Municipal committee, Piparia and Ors. AIR 1958 MP 393 wherein the said Court held as under :- "the principle that a notice under Section 80. Civil P. C. is for the protection of the authority concerned, and, if in a particular case, he does not require that notice, he can lawfully waive his right to the notice applies to a notice under section 48 of the C. P. and Berar municipalities Act. Therefore, in a suit against a Municipal Committee where there was no objection raised in the written statements by any of the defendants about a notice under section 48, it should be taken that they waived their right to such a notice. " ( 5 ) AS against this, the learned counsel for the respondent has submitted that the objection with regard to the non-service of statutory notice under section 49 of the Punjab Municipal Act is a legal one and the Court suo-motto can take note of such an objection/defect in the suit while disposing of the matter and there is no question of waiver of the right simply because it was not raised in the written statement at the earliest or proper stage. In regard to the delay in raising such an objection, reliance has been placed upon a recent Supreme Court deicision in the case of B. K. N. Pillai Vs. In regard to the delay in raising such an objection, reliance has been placed upon a recent Supreme Court deicision in the case of B. K. N. Pillai Vs. P. Pillai and Anr AIR 2000 SC 614 where the,supreme court has allowed the defendant to raise a plea that he was a lessee and not a licencee and the alternative plea that if he is not held to be a lessee, he was entitled to the benefit of Section 60 (b) of Easements Act, 1882 negating the plea of the plaintiff that such pleas were in-consistant and amounted to withdrawal of admission made by the defendant and that the amendment would cause irretrievable cause to the plaintiff. ( 6 ) THERE is no dispute with regard to the legal position that amendment of the pleadings can be allowed at any stage of the proceedings and the amendments which are necessary for the just and proper adjudication of the question in controversy should be liberally allowed. However, it is equally well settled that the amendments which are inconsistant to the original pleas or amount to withdrawal of certain admissions of fact or which tend to cause irretrievable prejudice to the opponent are not to be allowed. ( 7 ) JUDGING the present case in the light of the above legal position, it is menifest that the objections sought to be raised by the defendant-respondents are legal objections. Adjudication of such questions is necessary for the just, proper and final adjudication of the controversy not reflect the correct factual and legal position with regard to the competence of the respondent to effect sale of a property of which he himself was not the owner and was merely a lessee and therefore could not have passed on a better title in favour of the transferee than that he himself had in the property in question. There appears to be considerable force in this submission because the nature of the transfer deed cannot be determined merely by referring to the title and some of the recitations appearing therein and all the attending facts and circumstances have also to be looked into for the purpose of determining the nature of the document whether it amounted to sale or lease. The Transfer Deed in question contains a recitation to the effect that the respondent was a lessee of the property in question by virtue of a perpetual lease deed dated 27. 10. 61 issued by the President of India in his favour and therefore he could not acquire ownership rights in the property in question and consequently transfer the same by sale. ( 8 ) HE could at best transfer the leasehold rights which he possessed in favour of the transferee smt. Prabha Arora sale and Lease are two distinct. modes of transfer of immovable property and have been defined in Sections 54 and 105 of the Transfer of property Act, as under :- "54. "sale" defined.-- "sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made. Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangile immoveable property of a, value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property -" "105. Lease defined.-- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. " ( 9 ) IT would be seen that the two transactions are distinct and one cannot be confused with the other. The basic difference between sale and "lease is that in a sale , there is an absolute transfer of all rights in the property sold and no right left in the transferor; in a lease there is a partial transfer or demise and the rights left in the transferor which called the reversion. The basic difference between sale and "lease is that in a sale , there is an absolute transfer of all rights in the property sold and no right left in the transferor; in a lease there is a partial transfer or demise and the rights left in the transferor which called the reversion. In this connection, it will be useful to refer to the following passage from Salmond s jurisprudence" :~ "the right of the owner of a thing may be all but eaten up by the dominant rights of lessees, mortgagees and other encumbrances- His ownership may be reduced to a mere name rather than a reality. Yet he nonetheless remains the owner of the thing for all the others own nothing more than rights over it. " ( 10 ) IN the case in hand, the Government was the absolutge owner and continued to be the absolute owner of the property in question and as the respondent was merely a perpetual lessee, he could not have acquired the right of absolute ownership in the property in question and consequently could not effect sale of such a leasehold property. The transaction effected by means of Conveyance Deed dated 16. 5. 74 was, therefore, in essence a perpetual lease and not sale within the meaning of Section 54 of the Transfer of Property Act. The use of expressions "absolute owner", "sale" etc in the body of the Conveyance Deed are misleading and cannot effect the real transaction/mode of transfer. ( 11 ) YET another reason which goes contrary to the stand of the appellant-Corporation that the transaction effected through the Deed Exhibit P-2 was sale is that no stamp duty was required to be paid for the transaction of immovable property in the instant case and no such stampt duty has been charged by the registrar and it is mentioned on the top "the payment of stamp duty was exempt under Schedule-A of Article 63 of the Indian Stamp Act". This would clearly show that even the Registrar had taken the transaction to be a transfer of perpetual lease and not sale. This would clearly show that even the Registrar had taken the transaction to be a transfer of perpetual lease and not sale. ( 12 ) HAVING considered the matter in its entirety, this Court is of the considered view that the transfer of property in question was not a sale within the meaning of Section 54 of the Transfer of property Act, 1882 and consequently no duty can be imposed under Section 147 (2) (b) (i) of the Municipal corporation Act, 1958 on such transaction. The transaction of transfer of immovable property effected in the case in hand would at best amount to lease in perpetuity of immovable property within the meaning of clause (v) of Section 147 (2) (b) of the said Act for which much lesser duty has been prescribed. As no notice or demand was raised in accordance with the said clause, the Corporation was not within its rights to recover the duty deeming the transfer of the property as sale in the present case. ( 13 ) IN the result, this appeal fails and is hereby dismissed and the impugned judgment of the learned First Appellate Court dated 17/08/1979 is hereby upheld. In the face of facts and circumstances of the case, the parties are left to bear their own costs.