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2011 DIGILAW 2747 (ALL)

Devi Gulam v. Maya Gupta

2011-12-02

DILIP GUPTA

body2011
Hon'ble Dilip Gupta, J.: - The tenant has filed this petition for quashing the order dated 14th October, 2011 passed by the Prescribed Authority by which the application filed by him for incorporating amendments in the written statement has been rejected. The landlord had filed release application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 with the allegation that she and her daughter had training of running boutique business and so they desire to do boutique business and to open a showroom with the husband of the petitioner who is not doing any job. The accommodation under the tenancy of the opposite party was, therefore, needed for setting up this business. In this connection, paras 1, 2 and boundaries of the tenanted accommodation mentioned in the application filed by landlord are quoted below:- "1. That the petitioner is the owner and landlady of House No.87/168 Acharya Nagar, P.S. Raipurwa, Kanpur Nagar. 2. That the opposite party is the tenant in respect of the entire premises No.87/168 Acharya Nagar, P.S. Raipurwa, Kanpur Nagar at a monthly rental of Rs.1562.50 paisa. .......... Boundaries of the accommodation sought to be released i.e. entire House No. No.87/168 Acharya Nagar, P.S. Raipurwa, Kanpur Nagar. NORTH : Road SOUGT : G.T. Road EAST : House No.87/167 WEST : House of Sardar Harpal Sigh" A written statement was filed by the tenant with the following averments:- "1. That the contents of para 1 of the petition is admitted. 2. That the contents of para 2 of the petition as alleged is admitted. .... 10. That in fact the answering opposite party is carrying on Ice Factory in the premises in question and Ice Factory requires minimum 500 Square Yards for installation a plant process for manufacturing Ice and used for other purposes carrying on the said business. ..........." Subsequently, an amendment application was moved by the tenant with the following averments:- "In the above noted case, the applicant is the opposite party tenant. The petition has been filed against the opposite party by the petitioner U/s 21(1)(a) of the U.P. Act No.13 of 1972. The petition is not maintainable as the answering opposite party is the tenant of an open land. The petition has been filed against the opposite party by the petitioner U/s 21(1)(a) of the U.P. Act No.13 of 1972. The petition is not maintainable as the answering opposite party is the tenant of an open land. The petitioner has also not given details of the tenanted accommodation of the opposite party in para 2 as such following amendment is essential to be incorporated in the case/W.S. for just and proper decision. The said fact has not been written in the written statement due to bonafide mistake earlier but the said fact shall be helpful to this Hon'ble Court for deciding the case. This amendment is also not going to change the nature of the case. PRAYER It is, therefore, respectfully prayed that this Hon'ble Court be pleased to order to amend the written statement in the following manner; (a) That at page 1 in para 2 after the word "admitted" ''the opposite party is the tenant consisting of a portion of open land not the constructed area. The open land not covered under the definition of the building given U/s 3(1) of the Act of 1972 and as such the petition is liable to be dismissed as the suit against the answering defendant for eviction of open land, civil Court has only jurisdiction'' be added and amended." The Prescribed Authority has rejected the amendment application for the reason that admission made by the tenant in the written statement is sought to be withdrawn. Sri P.K. Sinha, learned counsel for the petitioner has submitted that as the petitioner was a tenant of the open piece of land only, it was necessary to file the amendment application for incorporating this and in any case, the admission made by the tenant in the written statement was only sought to be explained. Sri P.K. Jain, learned Senior Counsel for the respondent-landlord assisted by Sri Saurabh Jain has, however, submitted that the Prescribed Authority committed no illegality in rejecting the application filed by the tenant for the reason that the tenant, in the written statement, clearly admitted that he was the tenant of the entire premises but subsequently through the amendment application, an attempt was made to get out of the provisions of the Rent Control Act since it is not applicable to tenancy of only open piece of land. It is his submission that the admission cannot be withdrawn in view of the decision of the Supreme Court in M/s Modi Spinning & Weaving Mills Co. Ltd. & Anr. Vs. M/s Ladha Ram & Co. AIR 1977 SC 680 . It is also his submission that in other proceedings between the landlord and the tenant, the tenant had also stated that he was the tenant of the entire premises. I have considered the submissions advanced by learned counsel for the parties. In paragraph 1 of the application filed by the landlord under Section 21(1)(a) of the Act, it is clearly stated that the petitioner is the owner and landlady of House No.87/168 Acharya Nagar, Police Station Raipurwa, Kanpur Nagar and in paragraph 2 of the application it is stated that the opposite party is the tenant in respect of the entire premises No.87/168 Acharya Nagar, Police Station Raipurwa, Kanpur Nagar at a monthly rent of Rs.1562.50 paise. The boundaries of the accommodation have also been mentioned at the end of the application and it is clearly stated that the accommodation sought to be released is the entire House No.87/168 Acharya Nagar, Police Station Raipurwa, Kanpur Nagar and the boundaries also do not indicate that there is a factory on any portion. The tenant had clearly admitted paragraphs 1 and 2 of the written statement but by means of the amendment application, the tenant desires to resile from admission made in the written statement that the entire premises No.87/168 Acharya Nagar, Police Station Raipurwa, Kanpur Nagar was not given on rent to the tenant because it is sought to be averred that only vacant piece of land was given to tenancy. The Court below, therefore, committed no illegality in rejecting the application in view of the decision of the Supreme Court in M/s Modi Spinning & Weaving Mills Co. Ltd. & Anr (supra) in which it was held :- "10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court." The writ petition is, accordingly, dismissed.