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2003 DIGILAW 1097 (DEL)

SURENDRA KUMAR v. KRISHNA DWIVEDI

2003-11-06

R.C.JAIN

body2003
R. C. JAIN, J. ( 1 ) THROUGH this petition under Article 227 of the Constitution of India the petitioner seeks to assail the order of the learned Rent controller Delhi, dated 5. 6. 2003 thereby dismissing an application under order VI Rule 17 read with Section 151 CPC filed on behalf of the respondent seeking amendment of reply/written statement in an eviction petition. ( 2 ) THE relevant facts are that Smt. Shyama sharma was the owner of property bearing no. 248. Sant Nagar, EOK, New Delhi In the year 1974, Smt. Shyama Sharma filed an eviction petition under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "act") on the ground of non-payment of rent which was allowed by the Controller vide an order dated 26. 9. 1988. The petitioner herein filed an appeal and Smt. Shyama Sharma filed a cross appeal. During the pendency of the said appeal Smt. Shyama Sharma died on 1. 1. 1990 leaving behind five daughters including Smt. Krishna dwivedi. The Legal representatives of Smt. Shyama Sharma were brought on record and the appeals were answered by the Rent control Tribunal vide an order dated 10. 10. 97 smt. Krishna Dwivedi, on the strength of a sale deed dated 9. 10. 1986 purportedly executed by Smt. Shyama Sharma in her favour, field an another eviction petition under section 14 (1) (a) (c) and (h) of the Act. In the Said petition Smt. Krishna Dwivedi has with drawn grounds in Clause (c) and (h ). She filed another eviction petition under section 14 (1) (a) read with Section 14 (2) alleging second default in the payment of rent which is being contested by the present petitioner/tenant on a variety of grounds. The petitioner sought amendment of para 3 and 14 of its reply which was opposed by the respondents. The learned Controller on consideration of the matter and more particularly the respective stands taken by the parties and the findings and observations made by Shri S. M. Aggarwal, Rent Control tribunal) in its order dated 10. 10. 1997 and those made h} the Judge of Small Causes court in its order dated 28. 9. 2001 declined the permission to amend his written statement as according to him the petitioner, wanted to withdraw certain admissions which were made in the earlier proceedings. 10. 1997 and those made h} the Judge of Small Causes court in its order dated 28. 9. 2001 declined the permission to amend his written statement as according to him the petitioner, wanted to withdraw certain admissions which were made in the earlier proceedings. Besides the proposed amendment, if allowed would change the nature and character of the defence which was not legally permissible. ( 3 ) I have heard Mr. A. S. Chandhiok, Sr. Advocate representing the petitioner and Mr. Deepak Gupta learned counsel representing the respondent and have given my thoughtful consideration to their respective submissions. At the outset Mr. Deepak Gupta, learned counsel representing the petitioner has raised an objection about the maintainability of the present petition under Article 227 of the constitution against the impugned order on the ground that an alternate efficacious remedy by way of appeal under Section 38 of the Act is available to the petitioner which he has not exhausted. . On the other hand contention of Mr. Chandhiok, Sr. counsel for the petitioner is that since an appeal under section 38 of the Act lay before the Tribunal only on the question of law so an appeal would not be maintainable against, an order dismissing or allowing an amendment application as such, an order is merely procedural. . In support of his contention that the appeal would not be maintainable and the present proceedings are the only available remedy with the petitioner, Mr. Chandhiok has heavily relied upon a decision of this court in the case of S. K. Aggarwal Vs. Abdul aziz 81 (1999) DLT 278 wherein this Court held that any order which effect or determines the right of the parties is appeal able under section 38 of the Delhi Rent Control Act and for that purpose one has. to go the facts and circumstances of each case whether amendment sought for results into withdrawal of an admission and whether the amendment sought for changes the nature of the cause of action. In another case of Site Ram Talwar and Anr. Vs. Jai Dev Sharma ILR1972 (II) delhi 769 it was held that an order within the strict scope of order VI Rule 17 CPC and not travelling outside it, being merely procedural, allowing alteration of amendment of the pleading, would not be appeal able under section 38 of the Act. In another case of Site Ram Talwar and Anr. Vs. Jai Dev Sharma ILR1972 (II) delhi 769 it was held that an order within the strict scope of order VI Rule 17 CPC and not travelling outside it, being merely procedural, allowing alteration of amendment of the pleading, would not be appeal able under section 38 of the Act. In this very authority it was however laid down that the order although purporting to have passed on an application moved under Order VI Rule 17 cpc, moves outside the authority provided that by provisions and ordinarily orders allowing amendment of pleadings do not determine any rights and liabilities of the parties and, therefore, would not be appeal able as such. ( 4 ) AS against this Mr. Deepak Gupta has relied upon a Division Bench decision of this court in the case of Sita Ram Talwar and anr. Vs. Jai Dev Sharma ILR (1972) II Delhi 769. In this case the Court carefully considered the question a,id answered thus: " Therefore, it is not possible to lay down as a matter of law that an order passed under Order VI, Rule 17 of the civil Procedure Code will under no circumstances be appeal, able under section 38 of the Rent Act. The instances, where they would be appeal able are indeed few, but they are real; for example (1) where a time-barred; claim is by amendment permitted to be brought within limitation, thereby jeopardising the right of the respondent to plead the bar of limitation, (2) where an admission is contained in the pleading of which the opposite party takes an advantage; (3) where a new party has been added and (4) where an entirely new cause of action has been substituted in place of the one pleaded and such orders, if passed, may be appeal able. In these cases, the rights and liabilities of the parties are clearly effected. On the other hand, it will not be possible to treat as appeal able orders allowing amendment the result of which is to bring out the existing matter in controversy more clearly, or corrections or misdescriptions or errors or additions of a new cause 6f action or claiming a new relief. Such matters are definitely procedural and do not effect the rights of the parties. ( 5 ) IN the case of Umesh Kumar Vs. Dr. W. M. Sadoc 1984. Such matters are definitely procedural and do not effect the rights of the parties. ( 5 ) IN the case of Umesh Kumar Vs. Dr. W. M. Sadoc 1984. Rajdhani Law Reporter 41. 8 this Court held that an order allowing or rejecting an application under Order VI Rule 17, may be appealable, if it effects the rights of the parties. The very fact that an application is opposed may show that it effects the rights. In the case, of S. K. Aggarwal Vs. Abdul aziz 81 (1999) DLT 278 the position is reiterated by this Court. ( 6 ) THE legal position which emerges from the above cited authorities is that an order allowing or rejecting an application under order VI Rule 17 CPC is appealable if it effects the rights of the parties. In the case in hand the rejection of the application is on the ground that the proposed amendment has the effect of withdrawing the admission and also change the nature of the case, in the opinion of this court, effects the right of the party seeking amendment. In any case whether the amendment has been wrongly declined is a legal question. Having regard to the background of this case i. e. the various judicial proceedings between the parties and the predecessor-in-interest of Smt. Krishna dwivedi, this Court is of the opinion that the appeal lay under Section 38 of the Act against such an order of rejection of the application under Order VI Rule 17 CPC. The petitioner ought to have exhausted such remedy before approaching this Court with a petition under article 227 of the Constitution. Accordingly this petition is dismissed with liberty to the petitioner to approach the Rent Control tribunal with an appeal, if so advised. Any objection in regard to the appeal having not been field within the prescribed limitation may be considered by the Tribunal having regard to the time spent by the petitioner in pursuing the present proceedings. The petition is accordingly disposed of with the above observations. CM No. 929/03 also stands disposed of.