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2017 DIGILAW 36 (ALL)

Mohammad Ismail Tailaor Master v. Akhtar Hussain @ Babbu

2017-01-04

MANOJ MISRA

body2017
JUDGMENT Manoj Misra, J. -- Heard learned counsel for the petitioner. 2. The present petition has been filed challenging an order dated 09.09.2016 passed by the Additional Session Judge, Court No.10, Moradabad in S.C.C. Revision No.32 of 2012 by which two applications filed by the defendant-petitioner, namely, application nos.17-Ka and 23-Ga, have been rejected. 3. A perusal of the record would go to show that S.C.C. Suit No.10 of 2008 was filed by the plaintiff-respondent against the petitioner for arrears of rent and eviction of defendant by claiming himself to be landlord of the premises in question and the defendant its tenant on a rent of Rs.320/- per month. The defendant contested the suit by filing written statement in which he accepted that the plaintiff was his landlord. Only two points for determination were framed by the trial court. One was in respect of default in payment of rent and the other was in respect of valid termination of tenancy by notice dated 15.11.2007. No dispute at all was raised before the trial court in respect of landlord-tenant relationship between the parties. 4. The suit was decreed by the trial court against which S.C.C. Revision No.32 of 2012 was filed. During pendency of the revision, Application 17-Ka was filed for adding paragraphs 26-A and 26-B in the written statement so as to incorporate a plea that the plaintiff-respondent is not the landlord and in absence of relationship of landlord and tenant the suit was not maintainable before the court of Judge, Small Causes. Another application No.23-Ga was filed for accepting certified copy of an extract of municipal assessment register to disclose that the plaintiff was not recorded as owner. 5. Both the aforesaid applications were rejected by the court below. The application for amendment was rejected on the ground that the defendant had accepted the plaintiff as his landlord in the written statement and, therefore, amendment would amount to resiling from an admission and would change the nature of the case. The second application was rejected on the ground that no good ground was made out to admit additional evidence on the parameters on which additional evidence could be accepted under Order 41 Rule 27 CPC. 6. The second application was rejected on the ground that no good ground was made out to admit additional evidence on the parameters on which additional evidence could be accepted under Order 41 Rule 27 CPC. 6. The learned counsel for the petitioner has sought to assail the impugned order by claiming that since the plaintiff was not recorded as owner of the property, the amendment sought went to the root of the matter and the same ought to have been allowed. He has also sought to argue that when the signatures on the rent receipts allegedly issued to the defendant were compared with the signatures appearing on the plaint, then the aforesaid position came to the notice of the defendant, accordingly, in the larger interest of justice, the amendment ought to have been allowed. 7. I have given thoughtful consideration to the submissions of the learned counsel for the petitioner. 8. A perusal of the record would go to show that the defendant in his written statement had not at all denied the landlord tenant relationship between the plaintiff and the defendant and had rather accepted the stand which was taken in paragraph 1 of the plaint wherein it was specifically stated that the defendant was tenant of the plaintiff in respect of the shop in dispute at the rate of Rs.320/- per month. 9. Under the circumstances, taking a plea before the revisional court, for the first time, that the plaintiff was not the landlord of the property would have caused serious prejudice to the plaintiff and the same could not have been allowed. I, therefore, do not find any good reason to interfere with the order passed by the court below rejecting the amendment application. In so far as rejection of the application for adducing additional evidence is concerned, once it is not denied that the plaintiff was the landlord and defendant tenant of the accommodation in suit, the question of title would not be material in a suit which is based on landlord tenant relationship and which has been instituted in a court of small causes. Moreover, the court below has rightly observed that no good reason has been shown as to why the documents sought to be produced could not be produced in the court below. Accordingly, there is no good ground to interfere with the order rejecting the application for adducing additional evidence as well. Moreover, the court below has rightly observed that no good reason has been shown as to why the documents sought to be produced could not be produced in the court below. Accordingly, there is no good ground to interfere with the order rejecting the application for adducing additional evidence as well. 10. The petition is dismissed.