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Himachal Pradesh High Court · body

2013 DIGILAW 613 (HP)

GURMAIL CHAND v. YOG RAJ

2013-06-27

RAJIV SHARMA

body2013
JUDGMENT : RAJIV SHARMA, J. 1. This petition is directed against the order, dated 29.10.2012, passed by the learned Rent Controller (6), Shimla, H.P., in Rent Case No. 60-2 of 2010, whereby an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure filed by the respondent-tenant (hereinafter referred to as `the tenant' for the sake of convenience), has been allowed. 2. Key facts necessary for adjudication of this petition are that a rent note was executed between the landlords and tenant on 01.07.1994. The landlords have filed a petition for ejectment of the tenant from the premises in occupation, on the ground that the tenant without consent of the landlords made unauthorized additions and alterations in the premises which have materially impaired the value and utility of the premises and also on the ground that the landlords wanted premises to carry out extensive repairs and alterations of the premises below the shop cannot be carried out without the premises being vacated by the tenant. An additional ground of non-payment of arrears of rent by the tenant was also taken. 3. The tenant filed the reply. The evidence of the landlords was closed. Thereafter, the matter was listed for recording the evidence of tenant. The tenant moved an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure , seeking amendment of the reply. 4. Reply was filed by the landlords to the application. Learned Rent Controller (6), Shimla allowed the application on 29.10.2012. Hence this Civil Revision Petition. 5. Mr. G.C. Gupta, learned Senior Advocate, for the petitioners has vehemently argued that the learned Rent Controller (6), Shimla has allowed the application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure without taking into consideration the mandate of Order 6 Rule 17 of the Code of Civil Procedure. He then contended that the application has been filed by the tenant at the stage when the matter was listed for recording the evidence of tenant. He further contended that the tenant has been paying the rent to the landlords since 1994 on the basis of rent note, dated 01.07.1994. He lastly contended that the tenant could not deny the relationship of landlord-tenant. 6. Mr. Dibender Ghosh, learned vice counsel for the respondent has supported the order, dated 29.10.2012. 7. He further contended that the tenant has been paying the rent to the landlords since 1994 on the basis of rent note, dated 01.07.1994. He lastly contended that the tenant could not deny the relationship of landlord-tenant. 6. Mr. Dibender Ghosh, learned vice counsel for the respondent has supported the order, dated 29.10.2012. 7. The landlords have filed the eviction petition under Section 14 of the Himachal Pradesh Urban Rent Control Act, 1987 for the ejectment of the tenant. The tenant has filed reply to the same. The tenant has specifically admitted that he was tenant under the landlord No. 2 and he was realising the rent from him and issuing receipts. 8. The issues were framed by the learned Rent Controller. The landlords have already led their evidence. It is only at this belated stage when the tenant's evidence was to be recorded, an application was preferred seeking amendment in reply to the petition. According to the tenant, the rent note, dated 01.07.1994, was the result of fraud and misrepresentation by the landlords. The landlords have mis-represented that they were owners of the entire building including the premises in question. It was also averred that there was no relationship of landlords and tenant between the parties. It was also stated that the rent was paid to landlord No. 2 as the landlords defrauded and misrepresented to the tenant that they were the owners of the building in question. 9. The landlords, in reply, have specifically averred that the application was filed to delay the proceedings. It was denied that they have played any fraud and misrepresentation to the tenant that they were owners of the entire building including the demised premises. It was denied that the premises in question were owned by Shri Nirmal Singh and Shri Daljit Singh. It was also averred that the tenant had paid the rent to the landlords earlier and he was estopped from changing his status. According to the landlords, as far as the entries in Jamabandi are concerned, it was specifically stated that these are for fiscal purpose and do not confer any right, title or interest. The execution of the rent note, dated 01.07.1994, was reiterated. According to the landlords, if the application was allowed, it would change the entire nature and character of the defence already taken by the tenant. 10. Mr. The execution of the rent note, dated 01.07.1994, was reiterated. According to the landlords, if the application was allowed, it would change the entire nature and character of the defence already taken by the tenant. 10. Mr. G.C. Gupta, learned counsel for the petitioners has also argued that no due diligence has been shown by the tenant for moving an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure , seeking amendment, that too, at a very belated stage. 11. What emerges from the facts enumerated hereinabove, is that a specific admission has been made by the tenant in the reply filed to the eviction petition that he was tenant under the landlords. He was also paying rent to Shri Chint Ram. The reply was filed by the tenant on 05.06.2010. However, the application seeking amendment has been filed only on 01.03.2012, that too, at a stage when the date was fixed for recording the evidence of tenant. The tenant has not exercised the due diligence while moving an application under Order 6 Rule 17 of the Code of Civil Procedure. He cannot be permitted to wriggle out of the admission already made in the reply to the main petition. He had been paying the rent to the landlords since 1994 as per rent note, dated 01.07.1994. The very nature of the defence taken earlier by the tenant is permitted to be changed by allowing the application under Order 6 Rule 17 of the Code of Civil Procedure by the learned Rent Controller (6), Shimla on 29.10.2012. 12. In Bokka Sreeramulu v. Kalipatnapu Venkateswar Rao and another, AIR 1959 Andhra Pradesh 92, the Division Bench has explained the principles of Section 116 as under: "4. Now, we turn to the second question. On the facts found by the Courts below it cannot be assumed for a moment that the lease deed was executed at the instance or on behalf of or for the benefit of Krishnamurthy also. Now, we turn to the second question. On the facts found by the Courts below it cannot be assumed for a moment that the lease deed was executed at the instance or on behalf of or for the benefit of Krishnamurthy also. Clear recitals of the lease deed as referred to above are wholly against such contention.The trial Court has found on the evidence adduced that the plaintiff respondent had a right to and was in possession and enjoyment of the property, that he leased out the property to the defendant in his own right and that his exclusive right at the time bad been admitted also by the defendant who was let into possession by him. The lower appellate Court's conclusions in paragraph 8 of its judgments are almost to the same effect. The question for consideration is, whether under such circumstances the plaintiff is entitled to the protection of Section 116 of the Evidence Act so as to preclude the defendant from questioning his title at the time of the lease. Section 116 of the Indian Evidence Act reads thus : -- "No tenant of immoveable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant, had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof Shall be permitted to deny that such person had a title to such possession at the time when such license was given." This provision embodies the principle of estoppel arising from the contract of tenancy. It is based upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any prebable defect in the title of his landlord. Of course, if he were to deny his title, he could do so after he gives up the possession having thus restored status quo ante. This doctrine is directed mainly against frauds. Of course, if he were to deny his title, he could do so after he gives up the possession having thus restored status quo ante. This doctrine is directed mainly against frauds. The section in clear terms provides that the tenant during the continuance of his tenancy is precluded from denying that his landlord had no title at the time of creation of tenancy. So also a person who got into possession under the title or permission of the person in possession cannot be permitted to say that at the time he was let into possession the person permitting him had no title to such possession. It may be noticed that for the application of this principle, all that is necessary to be established is that there was a contract of tenancy and that the tenant took possession of the land under the title or with the permission of the landlord or person then in possession. Possession and permission being established estoppel would bind the tenant during the continuance of the tenancy and until he does not surrender his possession. The effect of estoppel will be that he cannot deny the title at the time of creation of tenancy of his landlord or the right of the occupant who gave him possession. Evidently both the landlord and the persons in possession at the time of the contract are within the protection of this provision. A person in possession within the meaning of the section need not be a full owner; he may be a mortgagee, a lessee or any other person having right to or is in actual possession. However defective the title of such a person or even the landlord may be at that time, the person inducted under the term of the contract cannot he permitted to rely on this defect to his advantage or to perpetuate his possession or to act in detriment to the landlord's right. It is argued that the plaintiff being not the owner of the entire land but only about half of it he will be deemed to be a benamidar in relation to the other half and such a benamidar is not within the protection of Section 116. This contention is untenable both on the facts and on law. Admittedly, Krisnamurthy was not a contracting party. This contention is untenable both on the facts and on law. Admittedly, Krisnamurthy was not a contracting party. There is nothing to suggest that the contract was entered into at the instance or for the benefit of Krishnamurthy so that it may be argued even for a moment that the plaintiff was merely a name-lender and the contract was in fact on behalf of Krishnamurthy or for his benefit to any extent. On the contrary, it has been found that Krishnamurthy was not in actual possession of any portion of the land and the plaintiff was in occupation of the entire land. The recitals of the lease deed clearly show that the appellant had at the time of the tenancy full title to and was in actual possession and enjoyment of the land. The case therefore falls within both the clauses of Section 116 inasmuch as the plaintiff is both a contracting landlord and also the person in possession who has inducted the defendant into possession. Relying on ILR 31 Mad 461 (B) and 26 Mad LJ 597 : (AIR 1915 Mad 48 (1)) (C), the learned counsel has argued that the, plaintiff should be regarded as the benamidar and the payment of makta to Krishnamurthy should operate as discharge of his liability. We do not think that the cases cited have any application to the present case. In ILR 31 Mad 461 (B), the husband of the landlord had entered into a contract not in his own eight but on behalf of his wife which he admitted in the case. In 26 Mad LJ 597 : (AIR 1915 Mad 48 (1)) (C), it was found that the agreement was entered into at the instance or on behalf of Kamakshamma. Thus both are cases where the contracts have been entered into on behalf of the real owners though under a borrowed name. In such cases it was held the teal landlords who are in law the contracting parties are within the protection of Section 116. ILR 31 Mad 461 (B), has been discussed and distinguished in 1941-1 Mad LJ 554 : ( AIR 1941 Mad 607 ) (A). The learned Judge in that case at page 556 made the following observations :- " ..... ILR 31 Mad 461 (B), has been discussed and distinguished in 1941-1 Mad LJ 554 : ( AIR 1941 Mad 607 ) (A). The learned Judge in that case at page 556 made the following observations :- " ..... But it seems to me that a distinction must be made between a case where a person claiming to be the owner of a certain property leases It to a tenant but takes the lease deed in the name of his benamidar and the case where a benamidar happening to be in possession of the property on behalf of the real owner grants a lease of it without disclosing his benami character. In the former case it may be correct to say that the tenant's estoppel operates in favour of the real lessor and not the benamidar who was not a party to the transaction, The decision in ILR 31 Mad 461 (B) was apparently a case of that kind. But in the second case referred to above, the benamidar clearly comes within the protection of Section 116, as he was the person who in fact leased the property and placed the tenant in possession. If the proposition laid down in ILR 31 Mad 461 (B), was intended to apply also to this class of cases, I would respectfully dissent from it." With respect, these observations of the learned Judge enunciate the correct principle of law as embodied in Section 116 and we find ourselves in full agreement with him. Thus on facts as detailed above, we are not prepared to hold that the plaintiff was a mere benamidar. In law even assuming that Krishnamurthy had title to any extent in the suit property, the contract being one between the plaintiff and the defendant and actual possession being given by the plaintiff to the defendant in his own right, the plaintiff and not Krishnamurthy must be regarded as the landlord for purposes of Section 116 of the Evidence Act. In law even assuming that Krishnamurthy had title to any extent in the suit property, the contract being one between the plaintiff and the defendant and actual possession being given by the plaintiff to the defendant in his own right, the plaintiff and not Krishnamurthy must be regarded as the landlord for purposes of Section 116 of the Evidence Act. It is then argued that the protection, if any, under Section 116 has come to an end by reason of the registered notice to quit given to the defendant; but, as we have already observed above, the bar of estoppel continues till the defendant has given up his possession for the mischief contemplated by Section 118 cannot he avoided until the tenant actually goes out of occupation and there is a great preponderance of judicial opinion in favour of this view. It was also argued that the plaintiff must be regarded as the agent of Krishnamurthy so far as his share in the land is concerned and that since the principle applicable to contracts made by an undisclosed agent applies also to contracts of tenancy, the payment to such a principal must discharge the liability of the lessee also. Apart from the fact that such an argument is inconsistent with the rule of estoppel laid down in Section 116 of the Evidence Act as has also been observed in 1941-1 Mad LJ 554 : ( AIR 1941 Mad 607 ) (A), there is no foundation for the very contention that the plaintiff acted as an agent of Krishnamurthy. In our opinion, there are no merits In this appeal. It is therefore dismissed with costs." 13. Their Lordships of the Hon'ble Supreme Court in Sri Ram Pasricha v. Jagannath and others AIR 1976 Supreme Court 2335 have held that it is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. Their Lordships have held as under: "15. There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth at the earliest opportunity. There are two reasons for our not being able to accept the above submission. Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth at the earliest opportunity. It was not done. Secondly, the relation between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of nonpleading of other co-owners as such." 14. Their Lordships of the Hon'ble Supreme Court in Tej Bhan Madan v. IInd Additional District Judge and others, (1988) 3 Supreme Court Cases 137 have held that the law as to estoppel of a tenant under Section 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. Their Lordships have held as under: "9. The law as to the estoppel of a tenant under S. 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants. The section is not exhaustive of the law of estoppel. The section, inter alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property. 15. The concurrent findings of facts in this case - it is indeed a matter of admission of the appellant - that ever since the purchase by Gopinath Agarwal the appellant attorned the tenancy in his favour and paid rent to him. Appellant did not establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment. Appellant did not establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment. High Court observes : "......In the courts below, an attempt was made to get over the effect of the defendant having attorned to Gopinath Agrawal by trying to demonstrate that the attornment was as the result of fraud and mis-representation practised by Gopinath Agrawal. Both the Courts below have rejected this plea, which is undisputably purely one of fact. Counsel for the petitioner made no attempt to show that the said finding of the courts below is wrong." 16. Now, S. 3(l)(f) which refers to one of the ground for eviction under the Act envisages: "(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant;" There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of Jus-tertii. The stance of the appellant against the third-respondent's title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latter's vendor-Mainavati herself had no title. The derivative title of the third-respondent is not denied on any ground other than the one that the vendor, Gopinath - to whom appellant had attorned - had himself no title, the implication of which is that if appellant could not have denied Gopirath's title by virtue of the inhibitions of the attornment, he could not question thirdrespondent's title either. Appellant did himself no service by this stand. 17. It must, accordingly, be held on both the aspects contended for by Shri Asthana that what appellant did, indeed amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant. The principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. 15. In Pal Singh v. Sunder Singh and others, AIR 1989 Supreme Court 758, their Lordships of the Hon'ble Supreme Court have explained the principle under Section 116 of the Evidence Act as under :- "11. 15. In Pal Singh v. Sunder Singh and others, AIR 1989 Supreme Court 758, their Lordships of the Hon'ble Supreme Court have explained the principle under Section 116 of the Evidence Act as under :- "11. In Tej Bhan Madan v. II Addl. Dist. Judge, (1988) 3 SCC 137 : AIR 1988 SC 1413 this Court reiterated that there can be a denial of the the by the tenant of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of justertii. But the implication of the ground on which the denial of the title was made was that if the tenantappellant could not have denied the vendor's title by virtue of the inhibitions of the attornment, he could not question the vendee's title either. The tenant did himself no service by this stand This Court reiterated that the principle that the tenant cannot deny the title of the landlord in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. The law is that the estoppel of a tenant under S. 116, of the Evidence Act was a recognition and statutory assimilation of the equitable principles underlying the estoppel in relation to tenants. In this case the rent had all along been collected by the respondent. 16. In Santosh Kumar Jain v. Shambhulal Krishna Kumar Suhane, AIR 1993 Madhya Pradesh 46, the learned Single Judge has held that tenant cannot deny title of landlord during continuance of tenancy. Their Lordships have held as under: "3. The first important question requiring of the tenanted premises? In Dilbagrai Punjabi v. Sharad Chandra, AIR 1988 SC 1858 , it was held that where a landlord claims eviction of his tenant from a non-residential premises on the ground of bona fide requirement of starting a business, it is essential that he also establishes that he is the owner of the disputed premises. This is also the basic requirement of S. 12 (1)(f) of the M.P. Accommodation Control Act, 1961. This is also the basic requirement of S. 12 (1)(f) of the M.P. Accommodation Control Act, 1961. This question also arose before the Supreme Court in Subhash Chandra v. Mohammad Sharif, 1990 Jab LJ 209: AIR 1990 SC 636 , in the context of the right of a tenant to challenge title of his landlord and it was clarified that though the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff, the same cannot be true about a case where the plaintiff's rights are founded on a derivative title. A tenant already in possession can challenge the plaintiff's claim on derivative title showing that the real owner is someone else but this is subject to the rule enunciated under S. 116 of the Evidence Act. This section does not permit the tenant during the continuance of the tenancy, to deny that his landlord had, at the beginning of the tenancy, a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit but that will be limited to the question of title of the original landlord at the tiem when the tenant was let in. It was also laid down that as far as the derivative title is concerned, a tenant is entitled to show that the plaintiff has not, as a matter of fact, secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason which renders the transfer to be non-existent in the eye of law. The Court further observed that "these exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy." There can therefore be no dispute with any of the aforesaid principles and hence it may be considered whether the facts on record justify the conclusion that the appellant is not the owner. As noticed earlier, plaint paras 1 and 2 allege that the tenanted premises were let out to the respondent by landlord and that the said Sumerchand effected partition by a registered partnership deed dated 11.10.75 transferring title to the present appellants. As far as the title of Sumerchand set out in para 1 is concerned, it is admitted. As noticed earlier, plaint paras 1 and 2 allege that the tenanted premises were let out to the respondent by landlord and that the said Sumerchand effected partition by a registered partnership deed dated 11.10.75 transferring title to the present appellants. As far as the title of Sumerchand set out in para 1 is concerned, it is admitted. The partition is claimed to be bogus and solely made to evict the defendant and yet it is stated that it was the internal affair of the plaintiff's family and therefore he did not contest the same and apportioned the rent as agreed with the plaintiff's father." After the attornment as aforesaid, the terms and conditions of the tenancy it is stated, continued to be the same. The notice sent by the appellant to the respondent (Ex. P30) also alleged that Sumerchand was the owner and the landlord in respect of the house in question. That he effected the alleged partition on 11.10.75 and therefore the tenanted premises were acquired by the two plaintiff's. The reply to this notice (Ex. P-31) does not diepute this part though it disputes the bona fide requirement. Apparently up to the date of filing the written statement, there was no denial of the title of eight the appellants or their father. It was only by way of an amendment on 28.09.1979 that the ownership of the appellant was denied and it was submitted that one Radhabai was the owner of the property and she had gifted the same to a temple by the gift dated 10.10.1950. Thus, the respondent's claim that even the appellant's father Sumerchand was not the owner of the tenanted premises and the real owner was Radhabai who had gifted the same to the owner of the tenanted premises. The respondent has also filed Ex. D-9 which is the gift deed, allegedly executed by Radhabai in favour of Parasnathji Temple. Shambulal as D.W. 2 has deposed that Radhabai was the earlier owner of the tenanted house and after the gift deed, Parasnathji Temple has become the owner. In cross-examination (Para 9) he however admitted that Sumerchand had claimed to be the owner of the house and had given the same to him as a tenant on lease in 1968. He also admitted that he had accepted the said Sumerchand to be the owner and had taken the said house from him. In cross-examination (Para 9) he however admitted that Sumerchand had claimed to be the owner of the house and had given the same to him as a tenant on lease in 1968. He also admitted that he had accepted the said Sumerchand to be the owner and had taken the said house from him. Can the respondent now deny the said title? The decision of the Supreme Court noticed above would not permit him to do so. S. 116 of the Evidence Act would come into operation and act as a bar against him in the matter. Under the circumstances, the respondent could not be permitted to deny the title of Sumerchand. It is unfortunate that the learned lower appellate Court did not consider this aspect of the matter and permitted challenge contrary to the aforesaid law. For this reason, the impugned judgment cannot be accepted and deserved to be set aside. 5. The next important question requiring consideration of this Court is whether the respondent defendant would be entitled to challenge the title of the appellants? That the appellant's claim of their exclusive title is based on partition does not appear to be in dispute. The question however is whether the respondent entitled to challenge this partition. If the tenant had not attorned and apportioned the rent as per partition deed, it might have been possible to hold that he is entitled to challenge the title as after attornment and division of rent, the legal position is different. The legal effect there of is that he became the tenant of two landlords in relation to their own share in the tenanted premises. The relationship of landlord and tenant between the parties therefore becomes direct and hence the respondent would be subjected to the same limitations as in relation to title of original landlord. This Court is therefore of the opinion that the respondent was not entitled to challenge the ownership of the appellants, after having acted upon the partition and dividing the tenancy." 17. The learned Single Judge in Rajendra Kumar v. District Judge, Jaunpur and others, AIR 1996 Allahabad 178 has held that where defendant-tenant was paying rent to the plaintiff, he would be estopped from questioning title of plaintiff as landlord of demised premises. The learned Single Judge has held as under: "11. The learned Single Judge in Rajendra Kumar v. District Judge, Jaunpur and others, AIR 1996 Allahabad 178 has held that where defendant-tenant was paying rent to the plaintiff, he would be estopped from questioning title of plaintiff as landlord of demised premises. The learned Single Judge has held as under: "11. In this connection the third point that require determination is whether in the teeth of provisions of Sections 115 and 116 of Evidence Act the defendants are estopped from denying the title of plaintiff. The trial Court believing the rent receipts produced held that the defendants were paying rent in respect of disputed property, it is clear from the said conclusion that the defendants held the plaintiff to be the landlord of the premises and under the provisions of Section 116 of the Evidence Act, the defendants are estopped from questioning the title of plaintiff and in view of that provision, the objection raised by the petitioner for the first time is note worthy of consideration in the writ petition. On the above basis I am firmly of the view that the judgment of Lower Court does not suffer from any such legal infirmity which require interference in exercise of powers under Articles 226, 227 of the Constitution by way of certiorari." 18. Their Lordrships of the Hon'ble Supreme Court in Bhogadi Kannababu & Ors. v. Vuggina Pydamma & Ors., 2006 (1) RCR 535 have held that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. Their Lordships have held as under: "16. In the impugned order, the High Court held that it was Pydamma, respondent No. 1, who had inducted the appellants in the properties in question and it was also the finding of the High Court and also the trial Court that the appellants continued to pay rent in respect of the properties in question for some period and thereafter stopped payment. ON such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act. ON such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act. In the case of Bilas Kunwar v. Desraj Ranjit Singh (AIR 1915 Privy Council at p. 98), the Privy Council observed as follows: "A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord." (Emphasis supplied). 17. This view was also recognised by this Court in Atyam Veerraju and others v. Pechetti Venkanna and others ( AIR 1966 SC 629 ). Similar view has also been expressed in a later decision of this Court in the case of Tej Bhan Madan v. II Additional District Judge and Ors. (1988) 3 SCC 137 , in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial Court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if respondent No. 1, Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub letting under the A.P. Tenancy Act. We keep it on record that the learned counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us." 19. The learned Single Judge of Delhi High Court in Ramesh Chand v. Uganti Devi, 2009 (1) RLR 114, has held as under: "7. We keep it on record that the learned counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us." 19. The learned Single Judge of Delhi High Court in Ramesh Chand v. Uganti Devi, 2009 (1) RLR 114, has held as under: "7. It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14 (1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly. I, therefore, find that there was no infirmity in the order of learned ARC in this respect. As far as letting purpose is concerned, in view of the judgment of Hon'ble Supreme Court in Satyawati Sharma (dead) by Lrs. v. U.O.I. and another (2008) 5 SCC 287 , this ground is not available to the petitioner." 20. The Apex Court in Ajendraprasadji N. Pandey and another v. Swami Keshavprakeshdasji N. and others, (2006) 12 SCC 1 has held that belated amendment cannot be permitted in written statement after commencement of the trial. Their Lordships have held as under: "55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. Their Lordships have held as under: "55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants' application at Exh. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents _ original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed. 60. The above averment, in our opinion, does not satisfy the requirement of Order 6, Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash v. Nankhu & Ors. (supra), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. 61. We can also usefully refer to the judgment of this Court in Baldev Singh and Others v. Manohar Singh and Another, (2006) 9 SCC page 498 for the same proposition. A perusal of the proposed amendment would show that it contains numerous averments. So far as the averments in the proposed amendments are concerned, at page 12 of the order in para 22, the appellants admit that all the issues raised by way of proposed amendment in the written statement were taken before this Court in the appeal from order filed by the present defendants in the civil appeal filed before this Court and again in the special leave petition filed subsequent. As rightly pointed out by learned senior counsel in any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect." In the instant case also, it was never contended by the tenant while moving an application under Order 6 Rule 17 of the Code of Civil Procedure that despite due diligence exercised by him why the new ground could not be taken at the time of filing the reply. The execution of the rent note was always within the knowledge of the tenant. 21. This Court in Sh. Devi Dass v. Sh. Devi Singh and others, Latest HLJ 2008 (HP) 1036 has held that amendment to withdraw admission cannot be allowed. The learned Single Judge has held as under: "13. In the present case, as discussed above, I am of the considered view that the defendants had made specific admission that Rup Dass was the previous owner of half share of land comprised in Khasra Nos. 67, 76, 96, 97 and had claimed that they had become owners by adverse possession in respect of the half share of Rup Dass. This was a clear admission which could not be permitted to be withdrawn. By way of amendment it is not that the admission is being explained but the defendants are taking a diametrically opposite stand in as much as earlier they had only claimed to have become owners by was of adverse possession but now they claims ?rd shares in the half share. In my view they cannot be permitted to do this." 22. In Sohan Lal v. Mohan Lal and others, Latest HLJ 2009 (HP) 1410, the amendment application cannot be allowed for want of necessary averments in the application as per proviso to Rule 17 Order 6 C.P.C. The learned Single Judge has held as under: "10. The suit was filed on 07.07.2005. The amendment application was prepared on 23.12.2008. I have gone through the amendment application, there is no averment in the amendment application that despite due diligence the petitioner could not plead the proposed amendment in the original plaint. It has been submitted on behalf of the respondents that already eight witnesses of the petitioner have been examined and thereafter, the application for amendment of the plaint was filed. It has been submitted on behalf of the respondents that already eight witnesses of the petitioner have been examined and thereafter, the application for amendment of the plaint was filed. The amendment application of the petitioner cannot be allowed for want of necessary averments in the application as per proviso to Rule 17 Order 6 C.P.C. The prayer for impleadment of the State of Himachal Pradesh as defendant No. 3 is based only on the fact that the petitioner by way of proposed amendment intended to take the plea of adverse possession against the State. The petitioner has not made out the case for amendment as projected, therefore, the petitioner is also not entitled to implead the State of Himachal Pradesh as defendant No. 3 in the suit. The petitioner has failed to make out any case for interference. There is no merit in the petition which is accordingly dismissed with no order as to costs." 23. The expression "due diligence", as contained in proviso to Order 6 Rule 17 has been explained by their Lordships of the Hon'ble Supreme Court in J. Samuel and others v. Gattu Mahesh and others, (2012) 2 Supreme Court Cases 300 as under: "17. An argument was advanced that since in the legal notice sent before filing of the suit, there is reference to readiness and willingness and the plaintiff has also led in evidence, nothing precluded the court from entertaining the said application with which we are unable to accept in the light of Section 16(c) of the Specific Relief Act as well as proviso to Order 6, Rule 17 . The only reason stated so in the form of an affidavit is omission by "type mistake". Admittedly, it is not an omission to mention a word or an arithmetical number. The omission is with reference to specific plea which is mandated in terms of Section 16(c) of the Specific Relief Act. 15. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code." 24. In S. Malla Reddy v. Future Builders Co-operative Housing Society & Ors., 2013 (2) Him L.R. (SC) 819, the same principles have been reiterated by their Lordships of the Hon'ble Supreme Court with regard to amendment of pleadings. Their Lordships have held as under: "20. The relevant paragraphs of the orders passed by the trial court and the High Court have been quoted hereinbefore mainly for the reason that while considering the petitions under Order 8, Rule 9 and Order 6, Rule 16 both the courts have also gone into the question as to whether those admissions could be withdrawn by permitting the defendants to file a fresh written statement or by striking out of the earlier written statement. 19. Aggrieved by the above said orders, the appellants moved this Court in Civil Appeal No. 7940-7942 of 2004. Finding no merit, this Court dismissed the appeals by order dated 15.03.2007. 21. Instead of participating in the suit, the defendant appellants filed another petition purported to be under Order 6, Rule 17 CPC seeking amendment of the written statement. The said amendment petition was allowed by the trial court and against that the plaintiff- Society preferred revision before the High Court. The High Court by passing the impugned order dated 28.12.2007 allowed the revision petitions and set aside the order passed by the trial court. The High Court held as under :- "15. The ratio in The United Provinces Electric Supply Co. The High Court by passing the impugned order dated 28.12.2007 allowed the revision petitions and set aside the order passed by the trial court. The High Court held as under :- "15. The ratio in The United Provinces Electric Supply Co. Ltd. case ( AIR 1972 SC 1201 ) that decision on any particular point given in an order of remand does not operate as res judicata in an appeal filed against the final order passed after the remand; does not apply to the facts of this case because there is no `order of remand' in this case as plaintiff is not relying on any of the observations in an `order of remand' to contest the applications made by the defendants. 16. In view of the ratio in Satyadhyan Ghosal case ( AIR 1960 SC 941 ), Arjun Singh case ( AIR 1964 SC 993 ) and The United Provinces Electric Supply Co. Ltd. case (supra) successive applications for the same relief cannot be permitted, and they can even be rejected as an abuse of the process of Court. 17. It is contended by the learned counsel for the defendants that subsequent to the filing of I.A. No. 416 of 2000, defendants came to know through the report of an expert that the written statement filed on their behalf was typed on the same typewriter on which the plaint was typed. In the common order challenged in these revisions, the trial Court considered that contention and held that that contention has to be decided at the time of trial, but cannot be considered at this stage. For the reasons given by the trial court, that finding cannot be said to be erroneous. 18. As rightly contended by the learned counsel for the plaintiff, the trial Court which agreed with the contention of the plaintiff that defendants cannot by invoking the plea of fraud seek the amendment sought, allowed the petitions only on the basis of the observations made in Uday Shankar Triyar v. Ram Kalewar Prasad Singh, AIR 2006 SC 269 . In the very same judgment the apex Court held that procedure, a hand maiden to justice, should never be made a tool to carry justice or perpetuate injustice by any oppressive or punitive use. In the very same judgment the apex Court held that procedure, a hand maiden to justice, should never be made a tool to carry justice or perpetuate injustice by any oppressive or punitive use. The trial Court without keeping in view the fact the defendants cannot repeatedly file the petition for the same relief which was negatived earlier, in a different form by quoting different provisions of law, thought it fit to allow the petitions and thereby virtually set at naught the order of dismissal of I.A.Nos.415 and 416 of 2000 passed by it earlier which order was confirmed by this Court and the Apex Court also." 22. Before going into the merits of the case, we would like to refer two of the provisions viz. Order 6, Rule 16 and Order 6, Rule 17 CPC which are involved in the instant case. These two provisions read-- "16. Striking out pleadings The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading(a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or (c) which is otherwise an abuse of the process of the Court.] 17. Amendment of pleadings The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Order 6, Rule 16 CPC has been substituted by the CPC (Amendment) Act 1976. This provision deals with the amendment or striking out of the pleadings, which party desires to be made in his opponent's pleadings. In other words, the plaintiff or the defendant may ask the Court for striking out pleadings of his opponent on the ground that the pleadings are shown to be unnecessary, scandalous, frivolous or vexatious. This Rule is based on the principle of ex debito justitia. In other words, the plaintiff or the defendant may ask the Court for striking out pleadings of his opponent on the ground that the pleadings are shown to be unnecessary, scandalous, frivolous or vexatious. This Rule is based on the principle of ex debito justitia. The court is empowered under this Rule to strike out any matter in the pleadings that appears to be unnecessary, scandalous, frivolous or vexatious or which tends to prejudice, embarrass or delay the fair trial of the suit. On the other hand, Order 6, Rule 17 CPC empowers the Court to allow either party to alter or amend his own pleading and on such application the Court may allow the parties to amend their pleadings subject to certain conditions enumerated in the said Rule. 23. Although the defendant-appellants filed the petition for striking out their own pleading, i.e. written statemen, labeling the petition as under Order 6, Rule 16 CPC, but in substance the application was dealt with as if under Order 6, Rule 17 CPC inasmuch as the trial Court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the Order quoted hereinabove reveals that the trial Court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order 8, Rule 9 or Order 6, Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order 6, Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. In the aforesaid premises, filing of a fresh petition by the defendants under Order 6, Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the Court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order 6, Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant appellants under Order 6, Rule 16 and Order 8, Rule 9 CPC and, therefore, the subsequent petition filed by the defendants lebelling the petition under Order 6, Rule 17 CPC is wholly misconceived and was not entertainable." 25. In view of the analysis made hereinabove and the definitive law laid down by their Lordships of the Hon'ble Supreme Court, the learned Rent Controller (6), Shimla has erred in law by allowing the application on 29.10.2012. 26. Accordingly, the petition is allowed. The order, dated 29.10.2012, is set aside. The pending application(s), if any, also stand(s), disposed of. No costs.