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2011 DIGILAW 766 (PNJ)

Mohinder Singh v. Som Nath

2011-03-09

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J.: - The present revision petition has been filed under Article 227 of the Constitution of India for quashing/setting aside order dated 13.1.2010 passed by learned Additional District Judge, Amritsar, vide which application filed by petitioner-tenant under Order VI Rule 17 of the Code of Civil Procedure (hereinafter to be referred as ‘the Code’) for amendment of written statement was dismissed. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Additional District Judge, Amritsar. 3. Facts relevant for the decision of present revision petition are that Som Nath, respondent-landlord had filed a rent application No.373 dated 30.11.1998, under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, against present petitioner-tenant on the ground that the premises in dispute came in his share in family settlement and he is also attorney of other co-owners and that the premises was let out to present petitioner by him and the same was required by him for his personal necessity. 4. The petition was contested by present petitioner-tenant. However, the petition filed by respondent-landlord was accepted by learned Rent Controller vide judgment dated 31.1.2008 by holding that there is relationship of landlord and tenant between the parties and that premises in dispute is bonafidely required by the landlord for his own use and occupation. Appeal filed by present petitioner -tenant against the said ejectment order before learned Additional District Judge (FTC), Amritsar, is pending. During pendency of appeal, Smt.Kamla Wati, sister of Som Nath, landlord, and one of the co-owners of the entire property including the property in dispute, sold her 1/7th share in the entire property vide registered sale-deed dated 6.5.2008 in favour of present petitioner. Hence, present application has been filed by present petitioner for amendment of written statement under Order VI Rule 17 of the Code on the ground that he has become the co-owner of the premises in dispute and as such, eviction petition filed by respondent- landlord is not maintainable. The application was contested by respondent-landlord and the same was dismissed by learned appellate Authority vide impugned order against which the present revision petition has been filed. 5. The application was contested by respondent-landlord and the same was dismissed by learned appellate Authority vide impugned order against which the present revision petition has been filed. 5. It has been contended by learned counsel for the petitioner that Court is conferred with power at any stage of the proceedings, even at appellate stage, to allow amendment of the pleadings, if it is of the view that the said amendment is necessary for determining the question in controversy between the parties. On this point, reliance has been placed upon Usha Balashaheb Swami and ors v. Kiran Appaso Swami and others, [2007(2) Law Herald (SC) 1281] : 2007(2) RCR (Civil) 830. 6. So far as this argument of learned counsel for the petitionertenant and the legal proposition held in the aforementioned judgment is concerned, there is no dispute. Law is well settled that Court is conferred with power at any stage of the proceedings to allow alterations or amendments of the pleadings, if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties; amendment can be allowed even after trial has commenced if Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial; Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. Law is also well settled that prayer for amendment of the plaint and prayer for amendment of written statement stand on different footings and that even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement. 7. However, in view of the aforementioned legal proposition, this Court is to see as to whether the amendment sought by the present petitioner-tenant in the written statement at the appellate stage is necessary for decision of controversy between the parties. 8. As per case of petitioner-tenant, he had purchased only a share of one of the co-owners in the entire property including the property in dispute. 8. As per case of petitioner-tenant, he had purchased only a share of one of the co-owners in the entire property including the property in dispute. Hence, even if plea of petitioner-tenant is to be taken as correct, he has become co-owner to the extent of 1/7th share in the entire property including the property in dispute. He has not become owner of the entire property in dispute, which was rented out to him by respondent-landlord. Basic rule is that right of parties are to be determined on the cause of action as it existed on the date of institution of a suit/petition. However, subsequent events can be taken into consideration in certain circumstances. 9. It has been contended by learned counsel for the petitioner that after purchasing a share in the property by petitioner from one of the coowners, respondent-landlord is having no right to evict the petitioner-tenant from the premises in dispute and hence the amendment, even at the appellate stage, has become necessary and the same can be allowed. He has also contended that as it is a subsequent event, hence, the said plea could not have been taken by him in the original written statement. 10. On the other hand, it has been contended by learned counsel for the respondent-landlord that by purchasing only a small share from one of the co-owners, after passing of ejectment order against tenant and in favour of landlord, tenancy would not be extinguished by merger and that the same would be extinguished only if tenant purchased the entire rights in the whole of the premises of all the co-owners and that even after purchase of right of one of the co-owners in the entire premises, landlord can still seek eviction of such a tenant on the grounds available to him under the Rent Act. 11. Law on the point has been settled by Hon’ble Apex Court in Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others, 2005 (3) PLR 27: 2005 AIR (SC) 2857 by considering all the previous judgments on the point by holding that if a building is owned by number of co-owners and if tenant purchases ownership rights of a co-owner, his tenancy does not get extinguished and that landlord can still seek eviction of such a tenant on the grounds available to him under the Rent Act. The relevant paragraphs of which read as under: “33. Here in this case, the lessee has acquired only the rights of certain co-owner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property has come to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the co-owner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by Section 111 (d) of the Transfer of Property Act. T. Lakshmipathi answers that question and with respect, answers that question correctly. 34. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee’s estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.” 12. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.” 12. Hence, in view of this legal proposition settled by Hon’ble Apex Court in Pramod Kumar Jaiswal and others’ case (supra), this Court is of the view that amendment sought by petitioner-tenant in the written statement on the plea that he had purchased 1/7th share in the property in dispute from one of the co-owners during pendency of appeal is not at all necessary for the decision of present case. 13. In view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned Additional District Judge, (FTC) Amritsar, in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 14. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. 15. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. ------------