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Hari Kishan Vs. Prem Narain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 720 of 1984
Judge
Reported inAIR1986Delhi90; 28(1985)DLT161; 1985RLR488
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantHari Kishan
RespondentPrem Narain
Advocates: V.B. Andley,; Rajinder Mathur,; Arun Kumar and;
Cases ReferredPancheo Narain Srivastava v. Jyoti Sahay and
Excerpt:
in the instant case, the plaintiff had filed a suit for possession and recovery of damages against the petitioner-defendant - the mother of the petitioner-defendant was the mother of the tenant - the respondent-plaintiff had alleged that the tenancy had terminated during the life time of petitioner-defendant's mother - the petitioner-defendant had made the application for leave to amend statement - the purpose of such an amendment was to plead that how he had become a tenant - in view of the fact, it was ruled that the trial court had illegally rejected the petitioner-defendant application - accordingly, the revision petition was accepted - .....legal heir and that he has no right to inherit the tenancy. (3) the petitioner-defendant in his written statement had admitted that the plaintiff is the owner of the house, that smt. har devi widow of ram lal was a tenant in respect of the premises at a monthly rent of rs. 5.56 for residential purposes, that she died in 1978. the trial court framed various issues on 7th april, 1982 to the effect, whether the tenancy of har devi was terminated during her life time ; whether the defendant has paid all arrears of rent and has been paying regularly to the plaintiff. no evidence has been led by any of the parties. on 14th march, 1983 the petitioner-defendant made an application for leave to amend the written statement. he alleged that originally the premises in suit were taken on rent 50.....
Judgment:

Sultan Singh, J.

(1) This revision petition under section 115 of the Code of Civil Procedure (for short 'the Code') is directed aginst the judgment and order dated 20th July, 1984 of the Subordinate Judge, Delhi dismissing the petitioner's application for leave to amend the written statement.

(2) Briefly these are the facts. The plaintiff-respondent on 12th October, 1981 filed a suit for possession and recovery of damages against the petitioner. The plaintiff in the plaint has alleged that he is the owner of property No. 3089, Mohalla Dassan, Hauz Qazi, Delhi, that Har Devi, widow of Shri Ram Lal had been a tenant in respect of the portion shown red in the plan on a monthly rent of Rs. 5.56 for residential purposes, that she died in 1978, that the tenancy of Smt. Har Devi was terminated during her life time, that she left behind only one son i.e. the defendant as her legal heir and that he has no right to inherit the tenancy.

(3) The petitioner-defendant in his written statement had admitted that the plaintiff is the owner of the house, that Smt. Har Devi widow of Ram Lal was a tenant in respect of the premises at a monthly rent of Rs. 5.56 for residential purposes, that she died in 1978. The trial court framed various issues on 7th April, 1982 to the effect, whether the tenancy of Har Devi was terminated during her life time ; whether the defendant has paid all arrears of rent and has been paying regularly to the plaintiff. No evidence has been led by any of the parties. On 14th March, 1983 the petitioner-defendant made an application for leave to amend the written statement. He alleged that originally the premises in suit were taken on rent 50 years ago by Shri Ram Lal, his father from L. Jyoti Pershad, father of the plaintiff. He died in 1958 leaving behind his widow Smt. Har Devi and his son, the defendant. He alleged that he came into possession of all the original rent receipts earliest being that of the year 1943 and the latest of the year 1957 all in the name of his father issued by late Jyoti Pershad, father of the plaintiff. He thereforee proposed to amend the plaint by raising the following preliminary objection :

'PRELIMINARYobjection: 2. That the fact of the entire matter is and which has also been throughout in the knowledge of the plaintiff/landlord that originally the tenancy premises were taken on rent some 50 years ago or more by Shri Ram Lal deceased father of the defendant from late Shri L. Jyoti Pershad, father of the plaintiff. Shri Sham Lal died in or about the year 1958 leaving behind his widow Smt. Har Devi and his son the defendant. On the death of Shri Ram Lal his widow and his son both inherited his tenancy rights in respect of the suit premises as co-tenants having unity of possession and not unity to title. All the right, title and interest of Shri Ram Lal tenant since deceased vested in both of them under the provisions of section 19(b) of the Hindu Succession Act, 1956. The defendant was at all material time and is still continues to be in occupation of the tenancy premises in his own right as a tenant being an heir of his deceased father Shri Ram Lal.'

The plaintiff on 16th May, 1984 made another application for correction of the name in the proposed amendment. He said that for the words 'Sham Lal' the words 'Ram Lal' be substituted in the proposed amendment and in various paragraphs of the application for leave to amend the written statement. This application for correction has not been contested.

(4) The application for amendment of the written statement has been contested on the ground that the proposed amendment would change the nature of the defense, that it amounts to withdrawal of admission, that it would prejudice the plaintiff. The trial court by the impugned judgment dismissed the application holding that the proposed amendment would change the nature of the defense, that defendant wanted to raise a different plea in the garb of amendment and that it amounted to withdrawal of admission made by him in the written statement.

(5) Learned counsel for the petitioner-defendant submits that the trial court acted illegally in the exercise of its jurisdiction, that the proposed amendment does not amount to withdrawal of admission contained in the written statement that the proposed amendment does not change the nature of the defense, any in any case the alleged admission may be withdrawn or explained away as held in Pancheo Narain Srivastava v. Km. Jyoti Sahay and another, : AIR1983SC462 .

(6) In brief the facts are that the plaintiff claims possession against the defendant on the ground that his mother was a tenant and after her death be has no right to inherit the tenancy. The defense of the petitioner-defendant is that he is a tenant in the suit premises. The reason given by him in the written statement is that the tenancy of his mother was never terminated. By the proposed amendment he wants to plead further that his father was originally tenant in the premises who died in 1958 leaving behind the widow and son. In other words, the defendant wants to plead how he became a tenant in the premises. His main defense is that he has been in possession of the premises as a tenant. In view of these facts it cannot be said that there is change of defense. For what reasons he is a tenant is not the defense. The defense remains whether he is a tenant in the premises in suit. The reasons may be many. One of the reasons is that his father died and he inherited the tenancy. Another reason is that his mother died and her tenancy was not terminated. The defendant does not deny in the proposed amendment that her mother was not a tenant. Learned counsel for the plaintiff submits that the defendant admitted the allegations contained in paras I to 3 of the plaint where it has been alleged that Smt. Har Devi has been a tenant. The defense is that her mother was tenant and he only wants to add that his father was the original tenant. What is the effect of this plea of the defendant is a question to be tried by the trial court. In the facts and circumstances of the present case I am of the view that there is no change in the nature of the defense and there is no withdrawal of any admission made by the defendant in his written statement. As there is no change of defense the amendment ought to have been allowed. The claim of the defendant is that he is a tenant in the suit premises and thereforee it is necessary for decision of the controversy in suit to decide whether his father was a tenant as alleged by him in the proposed amendment.

(7) In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, : [1957]1SCR595 it has been observed that all amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The ultimate test is that the amendment can be allowed without injustice to the other side.

(8) In A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation, : [1966]1SCR796 it has been observed that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed.

(9) In the present case no injustice would be caused by amendment to the plaintiff. No evidence has been led so far. Further the approach of the defendant is not a new one but a different or additional approach to the question now be claims himself to be a tenant. He claims himself to be an heir of his mother. In the proposed amendment he also claims that his father was a tenant and after his death he became a tenant.

(10) In Gulwant Kaur v. Mohinder Singh and others, , a suit for possession of a house sold by defendant's husband, the original pica of the defendant was that the property was gifted to her and that she was in possession of the house as owner from a particular date. The defense sought to introduce by amendment that even if the gift was not proved she being in continuous possession of the property from a particular date she became absolute owner by adverse possession. The defense in that suit was that the defendant was the owner of the property. The reason was that the property was gifted to her and by amendment she wanted to add the plea that she became owner by adverse possession Amendment was refused by the trial court but it was allowed by the High Court.

(11) Learned counsel for the petitioner further submits that the proposed amendment goes to the root of the matter to determine whether the defendant is a tenant in the premises in suit. His argument is that if the tenancy of bids father proved he would inherit the tenancy. In New Delhi Municipal Committee and another v. Shri Ram Saran Doss, 2nd 1972 (1) Del 708 it has been observed that the amendment prayed for by the petitioner went to the root of the matter and thereforee the trial court erred in disallowing the application for amendment. The amendment was allowed by the High Court. In that case plea of want of notice under section 49 of the Punjab Municipal Act was raised after a lapse of Is months and the amendment was allowed as the plea of want of notice went to the root of the matter.

(12) Learned counsel for the respondent submits that the defense in the original written statement is that on account of non-termination of tenancy of the mother of the defendant, he became a tenant and by pleading that his father was a tenant the defendant is trying to set up a new defense. I do not agree. As already stated, the defense is that he is a tenant in suit premises. By additional approach he desires to plead that his father was tenant initially in the suit premises and be died leaving behind the widow and son. I am, thereforee, of the opinion that there is no change in the nature of the defense.

(13) Learned counsel for the respondent has referred to the judgment dated 16th November, 1984 (C.R. No. 532 of 1984) Sheo Pershad Jain and another v. V mod Kumar and another where a suit for possession was filed by the owner-landlord against the heir of the tenant. The defendant admitted that his mother Smt. Kailash Wati was tenant. By the proposed amendment the defendant prayed that in certain paragraphs of the written statement on merits wherever the word 'Kailashwati' occurs the word 'Ratan Lal' be substituted. In other words he meant that Ratan Lal was tenant and not Kailashwati. In view of those facts the learned Judge held that the substitution of a new name i.e. Ratan Lal in place of Kailashwati amounted to withdrawal of admission and setting up a new case. The facts of that case have no bearing to the facts of the present case. The learned Judge, as already submitted, disallowed the amendment on the ground that there was withdrawal of admission.

(14) It is true that an admission made by a party cannot be withdrawn but it has been held by the Supreme Court in Pancheo Narain Srivastava v. Jyoti Sahay and another, : AIR1983SC462 that an admission made by a party may be withdrawn or may be explained away and thereforee it cannot be said that by amendment an admission of fact cannot be withdrawn. It will depend upon the facts and circumstances of each case whether the party can be allowed to withdraw or explain the admission. In the instant case there is no question of withdrawal or Explanationn of any admission existing in the written statement.

(15) The trial court in my view thereforee acted illegally in exercise of its jurisdiction in rejecting the petitioner's application for leave to amend the written statement as proposed by him. The revision is accepted, setting aside the impugned order. The petitioner is granted leave to amend the written statement as proposed by him on payment of Rs. 100.00 as costs. He shall be entitled to substitute the words 'Ram Lal' in place of the words 'Sham Lal' in the proposed amendment. Parties are left to bear their own costs of this revision. They are directed to appear before the trial court on 30th May, 1985.


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