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Himachal Pradesh High Court · body

2013 DIGILAW 129 (HP)

Pal Bamba v. Joginder Lal Kuthiala

2013-02-28

KULDIP SINGH

body2013
JUDGMENT Kuldip Singh, J This judgment shall dispose of CR No.114 of 2011 and CR No.148 of 2011. CR No.114 of 2011 2. The order dated 24.5.2010 in RBT case No.34-2/09 of 2000 pending before learned Rent Controller(7), Shimla dismissing the application for reviewing the order dated 29.9.2008 under Order 6 rule 17 CPC has been assailed in the revision. The order dated 29.9.2008 has also been assailed. 3. The further facts are that respondents-landlords had filed petition for fixation and enhancement of rent of the premises under the H.P. Urban Rent Controller, Act 1987 against petitioner which is being contested by petitioner on several grounds including the ground that petitioner in the individual capacity is neither tenant nor has any concern with the premises for which the petition has been filed. 4. The petitioner moved an application under Order 6 rule 17 CPC for amendment of reply which was contested by respondents. The application was dismissed by learned Rent Controller on 29.9.2008 on the ground that trial has already commenced and as per the amended Order 6 rule 17 CPC, the petitioner was required to show that inspite of due diligence, the petitioner could not raise the matter before the commencement of trial. 5. The amendment application was filed on the grounds that though the petitioner has already taken objection that the petitioner in his individual capacity is not a tenant, the amendments are only explanatory in nature which will not change the nature of the case nor will cause any prejudice to the respondents. 6. The application was contested on various grounds including the ground that the trial has already commenced, the petitioner miserably failed to plead any cause as to why inspite of due diligence, he could not raise the matter before the commencement of the trial. The application has been filed to delay the proceedings. The amendment will change the nature of the case set up by the petitioner. The amendment application was dismissed on 29.9.2008. The petitioner filed review petition for reviewing the order dated 29.9.2008 which has also been dismissed on 24.5.2010. In the petition both orders dated 29.9.2008 and 24.5.2010 have been assailed on the grounds that learned Rent Controller has erred in not allowing the amendments. CR NO.148 of 2011 7. The amendment application was dismissed on 29.9.2008. The petitioner filed review petition for reviewing the order dated 29.9.2008 which has also been dismissed on 24.5.2010. In the petition both orders dated 29.9.2008 and 24.5.2010 have been assailed on the grounds that learned Rent Controller has erred in not allowing the amendments. CR NO.148 of 2011 7. The order dated 16.9.2009 passed by learned Rent Controller (7) in Case No.14-2 of 2009/2000 dismissing the application of petitioner for amendment of reply has been assailed in the revision. 8. The facts in brief are that respondents have filed petition under Section 14 of the H.P. Urban Rent Control Act, 1987 for ejectment of petitioner on the ground of building and rebuilding. The respondents want to reconstruct the building afresh which is more than 100 years old. The building and rebuilding work cannot be carried out unless the premises is vacated. 9. The petition is being contested by petitioner. The petitioner moved an application under Order 6 Rule 17 CPC for amendment of reply. The amendment sought is only clarificatory in nature and will not change the nature of the case already set up by the petitioner. The application was contested by the respondents. It has been denied that Alfa Restaurant is a tenant. The pleas sought to be taken by way of amendment have already been taken by the petitioner in the earlier reply. The learned Rent Controller dismissed the application on 16.9.2009. It has been submitted that learned Rent Controller has erred in dismissing the application. 10. Heard. The learned counsel for the petitioner has submitted that both the petitions were filed in the year 2000. In CR No.114 of 2011, it has been submitted that learned Rent Controller has dismissed the amendment application mainly on the ground that petitioner has not pleaded due diligence for seeking the amendment. The petitioner could have raised the matter before the commencement of trial. The amendment application has not been considered on merits in accordance with law. The amendment can be allowed at any stage, if a case for amendment is made out in a case instituted before the amendment of Order 6 Rule 17 CPC. The proposed amendment is clarificatory. It will not change the nature of the defence taken by the petitioner in the reply. The learned counsel for the respondents has supported the impugned orders. The proposed amendment is clarificatory. It will not change the nature of the defence taken by the petitioner in the reply. The learned counsel for the respondents has supported the impugned orders. He has submitted that amendment application has been filed to delay the proceedings. The pleas sought to be added by way of amendment are not required. The pleas sought to be taken by petitioner infact are required to be proved by evidence. 11. In CR No.148 of 2011 the learned counsel for the petitioner has submitted that learned Rent Controller has erred in not allowing the amendment. The petition was filed before the amendment of Order 6 rule 17 CPC. Therefore, amendment of reply can be allowed at any stage, if case for amendment is made out. The learned counsel for the respondents has supported the order dated 16.9.2009. He has submitted that pleas sought to be added are not necessary, in fact only evidence is required. 12. In CR No.114 of 2011 the petitioner intends to carry out the following amendments in the reply:-“(A) That in para 1 of the preliminary objections, the applicant/respondent, after the words ‘Alfa restaurant’, wants to add, “the tenant of the premises. (B) That the applicant/respondent, further in para 3 of the reply on merits, wants to add after ‘Alfa restaurant’, the words, “the tenant in the premises”. In the reply to the amendment application, the respondents have taken the preliminary objections that petitioner has failed to plead any cause as to why inspite of due diligence he could not raise the matter for which amendment application has been filed before the commencement of the trial. On merits, the respondents have denied the amendment application. 13. In CR No.148 of 2011 the amendment sought at the end of preliminary objection No.1 and in para-3 of the reply on merits is as follows:- “Who is actual tenant of the premises and has been paying the rent and has been recorded as a tenant in the Municipal records”. At the end of para-13 of the reply on merits the amendment sought is as follows:- “It is further submitted that the premises which are under the tenancy of Alfa Restaurant is a separate unit and has nothing to do with the lower storeys. At the end of para-13 of the reply on merits the amendment sought is as follows:- “It is further submitted that the premises which are under the tenancy of Alfa Restaurant is a separate unit and has nothing to do with the lower storeys. It is further submitted that the back room of the Alfa Restaurant has been constructed on wooden supports and is also independent of the lower storeys. In any case, if the non-applicant/respondent really intends to raise reconstruction, the same can be done without touching the premises in which the Alfa Restaurant is being run and without getting the same vacated, which is in a very good condition and the applicant has spent a huge amount on the renovation of the same without any objection from the non-applicant.” 14. The respondents contested the reply by taking preliminary objections of estoppel, application has been filed to delay the proceedings, amendments are not necessary for adjudication of the case. On merits, the respondents have denied the case. It has been stated that tenancy is in the name of individual respondent and M/s. Alfa Restaurant was never a tenant. 15. In CR No.114 of 2011, the amendment application has been mainly dismissed on the ground that amendment application was not filed before the commencement of the trial nor the petitioner has shown due diligence why the application was not filed earlier. In CR No.148 of 2011 the learned Rent Controller has held that in the reply the peti tioner has taken preliminary objection that the petition is bad for non-joinder and mis-joinder of necessary parties and is liable to be dismissed, there are other partners of Alfa Restaurant. The tenants alongwith petitioner have not been joined as party and therefore, petition deserves dismissal. In the teeth of this objection already on record, the learned Rent Controller has held that amendment to take objection that Alfa Restaurant is the tenant is not required to be impleaded. 16. The learned Rent Controller in fare rent petition while dismissing the amendment application has emphasized that due diligence was not shown by the petitioner nor he has shown why amendment application was not filed before commencement of trial. The fare rent petition was filed before amendment of Order 6 rule 17 CPC. Therefore, amendment application can be filed at any stage. The fare rent petition was filed before amendment of Order 6 rule 17 CPC. Therefore, amendment application can be filed at any stage. The learned Rent Controller has not gone into the merits of the amendment application in accordance with law. The controversy is whether petitioner is a tenant or that M/s Alfa Restaurant with partners are tenants. The amendment will effectively cover the controversy between the parties. The learned Rent Controller has erred in dismissing the amendment application in fare rent petition. Thus order dated 24.5.2010 and order dated 29.9.2008 in fare rent petition are not sustainable. 17. In the impugned order dated 16.9.2009 the learned Rent Controller has noticed that in the reply of the petitioner to ejectment petition a plea has been taken that petition is bad for non joinder and mis joinder of other partners of M/s. Alfa Restaurant. This supports the submission of learned counsel for the petitioner that amendment sought by petitioner in ejectment petition is explanatory. The plea of petitioner for amendment gets also support from the submission of the learned counsel for the respondents that proposed amendment is not required, what is required is evidence. In other words, basic foundation in the reply in the ejectment petition is already there. The petitioner intends to elaborate the reply. The scope of amendment of reply is not the same as the amendment of petition. The learned Rent Controller has erred in dismissing the application of the petitioner for amendment of reply. Therefore, order dated 16.9.2009 in ejectment petition is not sustainable. 18. In view of above, the amendment application of petitioner under Order 6 rule 17 CPC is allowed. Both the orders dated 29.9.2008 and 24.5.2010 in RBT case No.34-2/09 of 2000 pending before learned Rent Controller(7), Shimla are set aside. The amendment application in case No.14-2 of 2009/2000 is allowed and the order dated 16.9.2009 is also set aside. The parties through their counsel are directed to appear before the learned Rent Controller (7) Shimla on 20.3.2013. The record of the Rent Controller below be sent back immediately, so as to reach before the date fixed.