J.D. Jain, J.
(1) This revision petition is directed against order of eviction passed by an Additional Rent Controller on 25th October, 1980 against the petitioner on the ground under clause (e) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act).
(2) The facts giving rise to this revision petition succinctly are that on 18th December 1979, the respondent-landlord (for short the landlord moved an application under clause (e) of proviso to Section 14(1) read with Section 25-B of the Act for eviction of the petitioner (for short the tenant) from the demised premises comprised in house No. 123 (old No 122/11), Shankar Nagar, a trans Yamuna colony. It was averred that the demised premises had been let to the tenant for residential purpose and were required by the landlord who was owner thereof for occupation as residence for himself and the members of his family dependent upon him and that the landlord had no other reasonably suitable residential accommodation with him. He explained that accommodation in his possession comprised three rooms and one store- cum-room but the same was absolutely inadequate and insufficient having regard to the number of his family members. According to him, his family consists of himself, his wife, two sons one daughter-in-law and one grand child. It was further stated that his second son Girdhar Lal Vohra had since been engaged and his marriage was going to be solemnised on 5th February 1980. Further the landlord has four married daughters and they keep on visiting him off and on Along with their spouses and children and as such he requires some accommodation for their temporary sojourn with him.
(3) On being served with summons in the specified form, the tenant moved an application for leave to appear and defend within the prescribed period of 15 days. He also filed an-affidavit in support of his prayer for leave to defend stating the grounds on which he sought to contest the application for eviction. He asserted that the eviction petition had been made malafide in as much as the landlord had sufficient accommodation with him, viz..four rooms and one kitchen which were quite sufficient for him and members of his family comprising only the landlord, his wife and two sons and the wife of his elder son Ramesh Chander Vohra. However,he denied that Ramesh Chander Vohra had any issue as alleged. He .explained that Ramesh Chander Vohra was living in the premises which had been vacated by another tenant Shri Vachaspati Sharma about a year ago. However, he denied that the younger son of the landlord had been engaged and as such was going to bemarried. Further, while admitting that the landlord had four married daughters, two of whom were living in Delhi itself, one was in Punjab and the fourth was at Kanpur, he asserted that they were not visiting her parents off and on, as alleged. He further averred that the eviction petition was not maintainable because besides one room one store and a kitchen, his tenancy comprised one independent latrine and open space (chabutra) in front of the said room and as such it was for partial eviction only. Lastly, he urged that the application for eviction was malafide as the landlord wanted to convert the premises in question into shops on account of their location on the main road. The land lord refuted all these allegations and reaffirmed the grounds contained in the eviction petition by way of counter-affidavit.
(4) When the case was ripe for hearing on the application for leave to defend the tenant moved an application on 3rd September 1980 under Order Vi Rule 17 read with Section 151 Civil Procedure Code for amendment of his application for leave to contest. He sought to introduce the following amendments:-
1.The younger son of the landlord having been transferred from Delhi about a month ago, neither he nor his wife was residing in the house in question.
2.The landlord had not deliberately filed the site-plan of the accommodation in his possession with a view to suppress the same and the sons and daughters of the landlord were not dependent upon him for the purpose of residential accommodation.
3.The present application was not maintainable in as much as the landlord had filed another eviction petition being E-443/78 against him on the ground of non-payment of rent only about a year prior to the filing of the instant eviction petition but he did not take up the ground of bonafide personal requirement. thereforee, the instant petition was net maintainable.
(4) That the premises in question had been let for commercial-cum residential purposes and as such the present eviction petition was not maintainable.
(5) He explained that the additional grounds sought to be introduced were not incorporated in the original application for leave to contest by oversight. The landlord contested this application but did not file any written reply thereto. The learned Additional Rent Controller, however, rejected this application primarily on the ground that it was not maintainable. He also rejected the application of the tenant for leave to contest and passed the impugned order of eviction against him.
(6) The petitioner-tenant has, inter alia, assailed the order of the Additional Rent Controller declining permission to him to amend his application for leave to contest. For obvious reasons, this matter has to be examined first as it is likely to have a direct bearing on the ultimate fate of this revision petition.
(7) The first amendment sought to be made by the tenant is with regard to an event which allegedly took place subsequent to his application for leave to contest. It is well settled that while deciding a matter the Court should as far as possible take into consideration subsequent events so as to do full justice to the -parties. The following observations of the Supreme Court in Pasupuleti Venkateswarlu v. The Motor & General Traders, : 3SCR958 , are very pertinent in this context :- 'First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress. If a fact, arising after the lis has come to Court and has a fundamental impact on the right to relief of the manner of moulding it, is brought diligently to th0e notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where on specific provision or fair play is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling f actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice.'
(8) Hence, the Additional Rent Controller was bound to consider any change either in fact or in law which had supervened since the original application for leave to contest was made. He slipped into grave error in holding that:- 'If he is allowed to amend such leave application it would mean that he is given a long rope to add any plea even after the prescribed period and then in such a case there will be no end to the filing of the leave applications from time to time. To my mind, this application is not maintainable in law and hence cannot be allowed.'
(9) This view evidently runs counter to the well settled law that the provisions for the amendment of the pleadings, subject to such terms as to costs and giving all parties concerned necessary opportunity to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not'for defeating them. In the words of Lord Buckmaster in Ma Shwe Mya v. Maung Mo Hnaung Air 1922 Pc 249 : 'All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is thereforee essential that they Should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit '
(10) The said principle is. however, subject to the countervailing rule of practice that an amendment will be refused when if it were made it will result in prejudice or injury which cannot be properly compensated by costs. As observed by the Judicial Committee in Charan Das & others v. Amir Khan & others Air 1921 Pc 50, that :- ' That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases see, for example, Mohammed Zahoor Ali Khan v. Mussumut Thakooranee Rulta Koer (1867) 11 M.I.A. 467 where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.'
(11) Ordinarily, thereforee, an amendment should not be allowed where a valuable right has accrued to the opposite party by lapse of time. However, in the aforesaid case, the amendment was allowed because it was felt that the fresh relief sought was essentially the same and all that was sought to be done was to put it in a proper form. Another limitation on the exercise of discretion by the Court which is equally well recognised is that a party should not be permitted to substitute a new cause of action or to change the nature of the suit except where the Court thinks it just and necessary. The legal position in this respect was enunciated by the Supreme Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation : 1SCR796 as under :
'The general rule, no doubt, is that aparty is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neale (1887) 19 Qbd 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to be more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.'
(12) Applying the foregoing criteria to the application for amendment in the instant case, it is manifest that the first amendment which relates to the transfer of the younger son of the landlord from Delhi has to be allowed so that the Court must have cognizance of all facts before it can determine who ther the requirement of the landlord for additional accommodation is bonafide or not. Similarly, the second amendment to the extent it points out that the landlord has not deliberately filed the site-plan of the accommodation in his possession with a view to suppress the same should be allowed as it does not. in any manner, alter the nature of the case set up by the tenant, and no prejudice .would be caused to the landlord thereby. He would certainly have the opportunity to explain and bring forth the relevant information. However, the second part of the second amendment is aimed at introducing an altogether new plea by withdrawing an admission which is implicit in the application for leave to defend and the supporting affidavit of the tenant. It bears repetition that the eviction petition contained a specific averment that he required the demised premises for occupation as residence for himself as well as for the members of his family dependent on him. He then enumerated the members of his family who were dependent on him. This assertion of the landlord was nowhere denied by the tenant in the affidavit filed by him in support of the application seeking leave to contest; rather he stated that the eviction petition was malafide as the petitioner had sufficient accommodation with him i.e. four rooms and one kitchen, which was quite sufficient for him and his family members comprising only the petitioner, his wife and his two sons. He also admitted that elder son of the landlord Ramesh Chander Vohra was living with his wife. Under these circumstances, the effect of permitting this amendment would evidently be to deprive the landlord of a valuable admission on the part of the tenant and that will irretrievably prejudice his case. It may be borne in mind that in the event of the amendment being allowed the Controller will have to decide the question whether leave to defend should be granted or not having regard to the facts disclosed in the amended petition/affidavit of the tenant. As held by the Supreme Court in Precision Steel & Engineering Works and another v. Prem Deva Niranjan Deva Tayal 1982 (3) Drj 418: 'The jurisdiction to grant leave to contest or refuse the same is to be exercised on the basis of the affidavit filed by the tenant. That alone at that stage is the relevant document and one must confine to the averments in the affidavit.'
(13) If that be so, there can be no shadow of doubt that permission to amend the application for leave to contest in this respect will confer a distinct advantage on the tenant and deprive the landlord of a valuable right which has accrued to him by lapse of time. It will be virtually tantamount to granting leave to contest in the garb of permitting an amendment to the application for leave to contest. It is bound to cause untold hardship to the landlord and the question of his being compensated by costs does not arise. Reference in this context may be made to M/s. Modi Spinning & Weaving Mills Co. Ltd. and another v. M /s. Ladha Ram &. Co., : 1SCR728 , where the defendants wanted to resile from admissions made in a paragraph of the written statement and the decision of the lower Court in refusing the application for amendment as not being bonafide was upheld by the Supreme Court. It was observed that :
'.....It is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.'
(14) These observations, to my mind, would aptly apply to the facts of the instant case. Reference may also be made with advantage to a couple of decisions of this Court, viz., Neera Grover etc. v. Narinder Jaggi 1982 Rlr 18 & lido American Electricals Ltd. v. M.L. Sharma 1982 (1) Rcj 336, wherein Yogeshwar Dayal, J., expressed the view that leave to amend an application for permission to defend cannot be allowed for setting up a new case and withdrawing admissions already made. Hence, this part of the second amendment cannot be allowed.
(15) The third proposed amendment seeks to raise only a legal contention and I do not think a party should be debarred from raising a legal plea even at a late stage, irrespective of any question of limitation being involved, because it would be necessary for promoting the ends of justice rather than defeat them.
(16) Lastly, by way of fourth amendment the tenant wants to introduce the plea that the premises in question had been let for commercial-cum-residential purposes and as such the petition for eviction is not maintainable. This amendment is obviously motivated and is designed to dislodge the landlord completely because a landlord to be entitled to an eviction under clause (e) of proviso Section 14(1) must, inter alia, prove that the premises in question were let for residential purpose and this is precisely what was averred by the landlord in the eviction petition. However, this averment was not controverter by the tenant in his application for leave to defend although he must have known that proof of this essential ingredient was a must for the landlord. Thus, he impliedly admitted this averment to be correct.
(17) Hence, this amendment is clearly aimed at withdrawing the said admission and introducing a new ground of defense. If permitted, there can be little doubt and if I may say sp that is the precise object of this amendment, it will cent per cent ensure leave to defend to the tenant. Significantly the tenant has not stated the commercial purpose for which the premises in question were being used by him. This omission too speaks volumes for the malafides on the part of the tenant.
(18) To sum up, thereforee, I find that the order of the learned Addi tional Rent Controller refusing amendment of the application for leave to defend cannot be sustained in its entirety and has to be set aside in part. Hence, I allow the application for amendment is respect of the proposed amendments No. 1, 3 and first part of amendment No. 2, averted to above. However, the prayer for other amendments is disallowed.
(19) Under the circumstances, the impugned order rejecting the application of the tenant for leave to defend and directing the eviction of the tenant from the premises in question shall have to be set aside and the case remanded for bearing after giving an opportunity to the tenant to file the amended application for leave to defend and the landlord to file a counter affidavit in reply thereto. In other words, after affording the proper opportunity to the parties to do the needful the Additional Rent Controller shall decide afresh the amended application for leave to defend in accordance with law. This revision petition is allowed accordingly, and the parties are directed to appear before the Additional Rent Controller on 27th September 1983 for further proceedings.