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2016 DIGILAW 563 (HP)

Sumeer Nath v. Hari Singh

2016-04-26

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This petition is instituted against Order dated 5.8.2015 rendered by the learned Civil Judge (Junior Division) (5), Shimla in an application under Order 6 Rule 17 CPC in main Case No. 16/1 of 2010. 2. “Key facts" necessary for the adjudication of the present petition are that the petitioner-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake) filed a suit for mandatory injunction against the respondents-defendants (hereinafter referred to as 'defendants' for convenience sake). As per averments made in the plaint, defendant No. 1, was working as part time caretaker of the plaintiff of the properties of Late Kedar Nath. He was licensee in the premises. His licence was revoked. Defendant No.1 had sublet and illegally inducted defendant No. 2 Shri Mool Raj in a portion of the premises. Suit was contested by defendant No. 2 by filing written statement on 21.11.2011. Replication was also filed. 3. Issues were framed by the learned trial Court on 4.6.2012. Plaintiff had led evidence and examined three witnesses. Defendant No. 2 moved an application under Order 6 Rule 17 CPC for amendment of the written statement on 25.6.2014. Application was contested by the plaintiff by filing reply. Rejoinder was also filed by defendant No. 2. Learned Civil Judge (Junior Division) (5), Shimla, allowed the application on 5.8.2015. Hence, this petition. 4. According to the averments made in the application under Order 6 Rule 17 CPC, defendant No. 2 came to know that neither Shri Kedar Nath nor the present plaintiff was the owner of the suit premises. Defendant No. 2 came to know that as per the order of Hon’ble High Court of Civil Judicature for the state of Punjab at Chandigarh on 20.7.1956 passed in Civil Miscellaneous Petition No. 873/C-56 in RFA No. 213 of 1953 ‘Dale View’ including the suit premises was given to one Smt. Shiv Devi widow of Lala Dina Nath as right of her maintenance Mutation was also attested in favour of Shiv Devi. He supplied the copy of the judgment to his counsel. According to him, Shiv Devi was not given limited right of maintenance over the property in question. He supplied the copy of the judgment to his counsel. According to him, Shiv Devi was not given limited right of maintenance over the property in question. As a matter of fact, Shiv Devi was held as owner and Shri Kedar Nath himself was party to that RFA and compromised the matter with Smt. Shiv Devi before the Hon'ble High Court and admitted/accepted Smt. Shiv Devi as owner of ‘Dale View’. Shiv Devi executed a Will in favour of Shri Ran Vikram Singh and on the basis of said Will, Shri Ran Vikram Singh also obtained probate in the year 1996. He has pleaded in his written statement that he was in possession of the premises in the capacity of tenant, whereas after obtaining the Order dated 20.7.1956 of the Punjab & Haryana High Court, he came to know that neither Kedan Nath nor the plaintiff was owner of the suit premises. They were falsely claiming themselves to be the owners of the premises. They have no right over the suit property. He wanted to replace the words ‘tenant’ with the word ‘independently’. He further wanted to substitute the phrase ‘rent through money order’ with the phase ‘however, due to misrepresentation and concealment of facts by Kedan Nath”. Reply was filed by the plaintiff. It was denied that the defendant No. 2 is not a sublettee or not in unauthorized possession of the premises. Application was moved to deposit rent by defendant No. 2. It was denied that the premises were not given to Shiv Devi towards maintenance. It was denied that neither Kedan Nath nor the plaintiff was owner of the suit property. Rejoinder was also filed by defendant No. 2. 5. I have heard the learned counsel for the parties and also gone through the record carefully. 6. Issues were framed by the learned trial Court on 4.6.2012. Plaintiff has led his evidence by examining three witnesses. Case of the plaintiff, precisely, is that defendant No. 2 was a sublettee and was in unauthorised occupation of the suit premises. However, fact of the matter is that now the defendant No. 2 by filing application under Order 6 Rule 17 CPC wants to change the entire character of the written statement. He is claiming himself now to be independently in possession of the suit property instead of being a tenant/sublettee. He has moved an application to deposit the rent. However, fact of the matter is that now the defendant No. 2 by filing application under Order 6 Rule 17 CPC wants to change the entire character of the written statement. He is claiming himself now to be independently in possession of the suit property instead of being a tenant/sublettee. He has moved an application to deposit the rent. Thus, he recognized plaintiff as landlord. He was estopped from changing his stance as per Section 118 of the Indian Evidence Act. Application for amendment was filed belatedly. It can not be believed that he did not know about the Order dated 20.7.1956 rendered by the High Court of Punjab & Haryana and came to know about it in the second week of June, 2014. He can not be permitted to use expression ‘tenancy’ with ‘possession’. Defendant No.2 can not be permitted to take stance that due to misrepresentation by the plaintiff, he agreed to pay rent. Defendant No.2 can not also be permitted to deny the title of the plaintiff. He ought to have pleaded that despite due diligence, he could not discover the alleged facts, necessitating the amendment of the written statement. 7. Accordingly, the petition is allowed. Order dated 5.8.2015 rendered by the learned Civil Judge (Junior Division) (5), Shimla in an application under Order 6 Rule 17 CPC in Case No. 16/1 of 2010 is set aside. Pending applications, if any, are disposed of. No order as to costs.