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2015 DIGILAW 392 (UTT)

MOHAN SINGH RANA v. CHANDRA SHEKHAR TIWARI

2015-08-06

ALOK SINGH

body2015
JUDGMENT : Hon’ble Alok Singh, J. (Oral) Present petition is preferred assailing the order dated 21.07.2015 passed by the Appellate Court in Rent Control Appeal No. 17 of 2012, whereby amendment sought by the tenant/appellant in the written statement was declined. 2. Brief facts of the present case, inter alia, are that landlord/respondents, herein, have filed one petition under Section 21 (1) (a) of the U.P. Act No. 13 of 1972 (in short, Rent Act), seeking eviction of the tenant/petitioner, herein, from the shop in question on the ground that landlord/respondent no.1, herein, is a Law graduate, therefore, needs shop in question to establish and run his Law Office therein. It is further stated in the petition under Section 21 (1) (a) of the Rent Act that landlord has no other suitable alternate place to establish and run his Law Office, therefore, shop in question is bonafidely, genuinely and urgently required by the landlord/respondents, for their personal use. In the first paragraph of the petition under Section 21 (1) (a) of the Rent Act, landlord/respondents, herein, have given details/boundaries of the shop in question specifically mentioning therein that towards South of the shop, there is a garage of the landlord. 3. Tenant/appellant/petitioner, herein, has filed his written statement before the Trial Court specifically admitting paragraph No. 1 to the petition. Meaning thereby, tenant/appellant/petitioner, herein, has admitted boundaries and details of the shop in question. 4. During the evidence led by the parties before the Trial Court, it was nowhere stated by the tenant/petitioner, herein, that portion of the house shown as a garage towards South of the shop in question in fact is not a garage, rather it is a shop which has been illegally converted into a garage. Petition under Section 21 (1) (a), was hotly contested, however, same was allowed by the learned Trial Court, vide judgment and order dated 01.02.2012, directing eviction of the tenant/petitioner, herein, from the shop in question and releasing the shop in question in favour of the landlord on the ground of bonafide and genuine need of the landlord/respondent no. 1 to establish and run his Law Office in the shop in question. 1 to establish and run his Law Office in the shop in question. Feeling aggrieved, tenant has preferred Rent Control Appeal No. 17 of 2012 under Section 22 of the Rent Act before the District Judge, which was later on transferred and is pending disposal in the Court of 2nd Additional District Judge, Haldwani, District Nainital. During the pendency of the appeal, tenant/appellant/petitioner, herein, has moved an application seeking amendment in the written statement to the effect that tenant/petitioner/appellant, herein, should be permitted to delete the word “admit” from paragraph no. 1 of the written statement and should also be permitted to add the words “not admitted” with the details that in fact towards South of the shop in question, there is no garage and in fact is a shop which is being used illegally as garage. Further, amendment sought by the tenant is that there are three residential rooms behind the shop in question, which are lying vacant and can be used by the landlord for his Law Office. Amendment so sought by the defendant/appellant was declined by the Appellate Court by the impugned order dated 21.07.2015. Feeling aggrieved, tenant/appellant/petitioner, herein, has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. I have heard Mr. Siddhartha Sah, learned counsel for the tenant/petitioner, and have carefully perused the record. 6. Mr. Siddhartha Sah, learned counsel appearing for the tenant/appellant/petitioner, herein, while placing reliance upon the judgment of Hon’ble Apex Court in the case of Baldev Singh and others Vs. Manohar Singh and another reported in (2006) 6 SCC 498 and in the case of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others reported in (2007) 5 SCC 602 , has vehemently argued that principle for amendment in the plaint and in the written statement stand on different footings; the general principle that amendment of pleadings cannot be allowed to alter materially or cause of action or the nature of the suit applies to amendments in plaint, however, same principle do not apply relating to the amendment in written statement; therefore, addition of a new ground of defence or substituting or alternating a defence or taking inconsistent pleas in the written statement would not be objectionable. 7. Mr. 7. Mr. Siddhartha Sah, learned counsel for the petitioner has further placed reliance on the judgment of Hon’ble Apex Court in the case of Estralla Rubber v. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97 and has vehemently argued that admission can be explained by way of amendment. 8. Hon’ble Apex Court in the case of Estralla Rubber (supra), in paragraph no. 8, has held as under : “8. It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations a time barred claim cannot be allowed to be raised by proposing an amendment to take away valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side…..” “that the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event. It is further stated that the defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn.” 9. Hon’ble Apex Court in the case of Baldev Singh (supra), has held as under : 15. …That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. Hon’ble Apex Court in the case of Baldev Singh (supra), has held as under : 15. …That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. 16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In Modi Spg. And Wvt. Mills Co. Ltd. V. Ladha Ram & Co. (1976) 4 SCC 320 , this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that the defendants/appellants are not allowed to take inconsistent pleas in their defence. 10. Hon’ble Apex Court in the case of Usha Balashaheb Swami (supra) has held as under : 19. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 28. Again in Akshaya Restaurant v. P. Anjanappa 1995 Supp (2) SCC 303, this Court held 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. However, in that decision the amendment of the written statement was rejected mainly on the ground that the respondents had entered into an agreement for development of the land for mutual benefit of the parties and thereby the trial court came to a conclusion that it was not open to the respondent to explain whether the agreement was one of sale or for mutual benefit since the agreement was sub silentio in that behalf. In that decision this Court further held that the High Court in the exercise of power under Section 115 of the Code of Civil Procedure committed no material irregularity in permitting amendment of the written statement. This Court while considering the question whether the admission can be withdrawn or not observed as follows: “It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. It is seen that in paragraph 6 of the written statement a definite stand was taken but subsequently in the application for amendment, it was sought to be modified as indicated in the petition. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 C.P.C. in permitting amendment of the written statement.” 11. In that view of the matter, we find that there is no material irregularity committed by the High Court in exercising its power under Section 115 C.P.C. in permitting amendment of the written statement.” 11. As per the dictum of Hon’ble Apex Court, the principle of amendment in a plaint, like plaintiff should not be allowed by way of amendment to take inconsistent new plea or new cause of action, is not applicable in the case of amendment in the written statement in view of the fact that defendant shall always be at liberty to take alternate defences. From the judgment of Hon’ble Apex Court, as cited hereinbefore, the settled principle of law, which has emerged, is that admission cannot be permitted to be withdrawn, however, defendant can be permitted to explain the admission made by him. Delay is no ground to refuse the amendment if same is found necessary for the fair adjudication of the case and for the delayed amendment other side can be compensated by way of payment of cost. 12. All the facts have already been narrated hereinbefore, however, at the risk of repetition, it is observed that landlord/respondents, herein, have specifically stated correct location and boundaries of the shop in question in paragraph no. 1 of the plaint/petition saying there is a garage towards South of the shop in question, which is being used by the landlord for parking of their vehicle. In the written statement, tenant/defendant has admitted the contents of paragraph no. 1 of the plaint/petition. Therefore, now the tenant/petitioner, herein, cannot be permitted, that too during the pendency of the appeal, to say that property towards South of the shop in question is in fact a shop which is illegally being used by the landlord as garage. 13. Be as the case may be, once it is admitted to the defendant that irrespective of the nature of the Southern portion of the property, it is being used as garage, therefore, amendment sought by withdrawing the admission cannot be permitted. 14. There is another aspect of the matter. Now, the defendant/appellant/petitioner, herein wants to add pleading to the effect that there are three vacant rooms behind the shop in question, which can be used for commercial purposes by the landlord to run his Law Office, therein. 14. There is another aspect of the matter. Now, the defendant/appellant/petitioner, herein wants to add pleading to the effect that there are three vacant rooms behind the shop in question, which can be used for commercial purposes by the landlord to run his Law Office, therein. It is settled position of law that no landlord can be dictated by the tenant to use his own residential property for his commercial or official purposes. Therefore, the amendment sought that there are three residential rooms behind the shop in question are totally immaterial for the purpose of adjudication of the appeal. 15. In view of the dictum of Hon’ble Apex Court, only those amendments are permitted to be incorporated which seem to be necessary for fair adjudication of the case. Since, residential portion cannot be considered for the purpose of commercial activity by the landlord, therefore, amendment sought seems to be totally unnecessary. It seems that amendment was sought by the tenant just to buy time and to cause undue delay in the appeal. 16. Consequently, I do not find any reason to take contrary view to the view taken by learned Appellate Court. Petition fails and is hereby dismissed. 17. Learned Appellate Court is directed to expedite the hearing of the appeal and to decide it preferably within thirty days from the date copy of this judgment is received. Registry is directed to forward copy of this judgment to learned Appellate Court forthwith for information and compliance. 18. CLMA No. 9103 of 2015 also stands disposed of accordingly.