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Bansi Lal Ganpat Rai Vs. Bhoj Raj and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 126 of 1978
Judge
Reported inAIR1980HP39
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBansi Lal Ganpat Rai
RespondentBhoj Raj and anr.
Appellant Advocate K.D. Sood, Adv.
Respondent Advocate D.S. Nehra and; Shiva Sharma, Advs.
DispositionRevision dismissed
Cases ReferredIn Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram and Co.
Excerpt:
.....filed petition for eviction of appellant on ground of bona fide requirement and arrears of rent - petitioner contended that petition is bad for mis-joinder of causes of actions and parties - sought amendment of earlier pleadings - application dismissed by rent controller - appeal - amendment in pleadings cannot be allowed when whole subject matter of suit is sought to be changed - parties cannot be allowed to introduce by amendments inconsistent and contradictory allegations which are in nature of negation of admitted position - facts revealed that appellant sought permission to introduce altogether new and inconsistent facts - further appellant was seeking to displace respondents completely from admission which had been made by appellant in his original statement - appellant..........(the relevant portions of which have been re-produced below) the tenant had pleaded facts in different paras regarding which he now seeks to make amendment.'preliminary objections: 2. petition is bad for mis-joinder of causes of action and parties. the tenancies of property no. 20 (both storeys) and shop no. 21 (all the three storeys) are distinct and separate. landlords, properties and tenants are different. the tenancy in respect of property no. 20 is oral and is about 40 years old. whereas, tenancy in respect of premises no. 21 was created between petitioner no. 1 and respondent by ft writing dated 25th day of may, 1966, after the said property was purchased. as such present consolidated petition is not maintainable and is liable to be dismissed with cost. on merits: 4. para no. 4 is.....
Judgment:
ORDER

V.P. Gupta, J.

1. This revision petition has been filed against the order, dated 18th September, 1978, passed by the Rent Controller (III), Simla, by which the application under Order 6, Rule 17 of the Civil P. C. filed by the present petitioner was dismissed.

2. The brief facts of the case are that the landlord-respondents filed an application for eviction of the tenant-petitioner under Section 14 of the Himachal Pradesh Urban Rent Control Act (hereinafter called the Act) for eviction of the tenant from the upper and top floors of premises No. 20, and whole of premises No. 21. It was alleged in the eviction petition that both the premises Nos. 20 and 21 are residential as per definition of the residential building given in Section 2 (g) of the Act. Under para 9 of the eviction petition it is averred that the premises are occupied by a single tenant. Under para 14 it is alleged that premises, No. 20, were let out some 30 to 35 years back and in premises No. 21, the tenant was in occupation since 1966 when the landlords purchased the same. In para 18, the grounds for eviction of the tenant were that the premises are required by the landlords for their own occupation and for the occupation of the members of the family of Bhoj Raj and that the tenant has also defaulted in the payment of rent. In para 19, it was alleged that the premises though numbered separately are part and parcel of one single building and that the first and the second floors of both the premises are interconnected.

3. This application for eviction was contested by the tenant-petitioner and it was claimed that the two premises are distinct and separate and that a consolidated petition is not maintainable. It was also alleged that the petition is bad for non-joinder and mis-joinder of the necessary parties, the premises are not residential and that the petition has been filed on mala fide grounds. The plan filed with the eviction petition was not admitted to be correct and the locus standi of the landlords to file the petition was also challenged. It was also alleged that a proper and valid notice had not been served and that the firm of the landlords is not registered. The other contentions raised by the landlords were also denied.

4. A rejoinder was filed by the landlords and the allegations made in the eviction petition were re-asserted and the contentions of the tenant were denied.

5. The Rent Controller framed issues in the eviction petition on 21st April, 1978. Thereafter an application under Order 14, Rule 5, C.P.C. for re-casting the issues was filed but the same was dismissed on 28th July, 1978 as having been not pressed, and in the meantime an application under Order 6, Rule 17 C.P.C. was filed by the tenant-petitioner on 3rd July, 1978. This application was dismissed by the Rent Controller on 18th Sept., 1978, and it is against this order that the present revision petition has been filed.

6. Shri K. D. Sood, Advocate, appearing on behalf of the petitioner has contended that the proposed amendment has been necessitated due to the change in the definition of the words 'residential building' in the Act He also contended that this amendment in the section was incorporated on 10th May, 1978, while the application for amendment was filed on 15th June, 1978. It was further contended by him that the application, so made, is not mala fide and is in fact, necessitated due to the change in law. It was further contended by the learned counsel that to adjudicate the controversies between the parties effectively, the proposed amendment is necessary.

7. Sarvshri D. S. Nehra and Kedar Ishwar, Advocates, appearing on behalf of the respondents have contended that the petitioner in his reply to the eviction petition has clearly admitted that the two premises are distinct and separate, they are non-residential and now the petitioner cannot be allowed to plead that the tenancy is one for both the premises numbers 20 and 21. It was further contended that the proposed amendments are likely to change the nature of the defence, and, in fact, altogether inconsistent pleas are sought to be introduced by the proposed amendment. It was further contended that there are valuable admissions in the original written statement and the tenant-petitioner cannot be allowed to resile from these admissions.

8. I have carefully considered the contentions of the learned counsel for the parties and have also gone through the record of the case.

9. It is correct that the Court has very wide powers in allowing amendments of the pleadings, if such amendments are necessary for the purposes of determining the real questions in controversy between the parties, and in the case of written statements, the courts are very liberal in allowing the amendments, but at the same time the amendment in pleading/written statement can-not be allowed when for want of one cause of action another cause of action is sought to be substituted or the whole subject-matter of the controversy in suit is sought to be changed. The party cannot be allowed to introduce by amendment, inconsistent or contradictory allegations which are in the nature of negation of the admitted position of facts or which arc mutually destructive allegations of facts which had already been pleaded. It is permissible for a party to take up alternative or inconsistent pleas in the pleadings but by amending the pleadings the party cannot be allowed to introduce a totally inconsistent and new case than the one which had already been pleaded by it. In the original written statement (the relevant portions of which have been re-produced below) the tenant had pleaded facts in different paras regarding which he now seeks to make amendment.

'PRELIMINARY OBJECTIONS:

2. Petition is bad for mis-joinder of causes of action and parties. The tenancies of property No. 20 (both storeys) and shop No. 21 (all the three storeys) are distinct and separate. Landlords, properties and tenants are different. The tenancy in respect of property No. 20 is oral and is about 40 years old. Whereas, tenancy in respect of premises No. 21 was created between petitioner No. 1 and respondent by ft writing dated 25th day of May, 1966, after the said property was purchased. As such present consolidated petition is not maintainable and is liable to be dismissed with cost. ON MERITS:

4. para No. 4 is wrong and hence denied. The premises are not residential. The definition of the Sub-clause (g) of Section 2 does not cover the premises in dispute. The petition for the premises No. 20 and premises No. 21 jointly in the present form is not maintainable as tenancies are separate and distinct. The petition be dismissed with costs. 11. Para No. 11 as alleged in petition is wrong and hence denied. It is submitted that the annual rent of premises No. 20 in first floor Rs. 400 plus second floor Rs. 200, total Rs. 600 and that of the premises No. 21, i.e. for shop Rs. 600 plus first floor Rs. 200 plus second floor Rs. 200 total Rs. 1,000. The tenancies regarding the abovementioned properties are separate and distinct. The annual rent was and is not Rs. 2,000 nor taxes Rs. 90 as alleged. The true facts are that the landlord wanted very unreasonable enhancement of rent which he could not legally claim. Anyhow, his claim in this para clearly shows his ulterior and mala fide motive for the same. The contents of para No. 18 are also wrong. The enhancement was agreed reasonably as per ratio under the Act. The taxes were not enhanced by Simla Municipal Corporation, so petitioners are not entitled to enhance rate of taxes.

14. In reply to para No. 14, It is submitted that there are two separate tenancies. Shri Hari pershad deceased was tenant in whole premises No. 20 and tenancy is more than 40 years old and was oral and the tenancy in respect of premises No. 21 came in existence on 25th May, 1966 by written document. The petitioners are intentionally withholding the said document with respect to premises No. 21.

18. Sub-para No. (i) of para No. 18 is wrong and hence denied. The premises are not residential, as alleged. Petitioners do not require the premises in dispute for their own use and occupation. Petitioners have no business in Simla, There is no bona fide necessity or requirement to the petitioners. The petitioners have alternative accommodation for any casual visits. Petition is mala fide.

(ii) Sub-para (ii) of the para No. 18 is also wrong. The rent was paid. Only a sum of Rs. 6-78 P. remained to be paid up to 28-2-75. The respondent was always ready and willing to pay Rs. 6-78 P. along with rent for year 1975-76. The rent was offered but he refused to issue receipt and also to allow amount of annual repairs as per oral agreement and oral practice which was allowed in the past since the respondent is in occupation. However, the respondents are tendering Rs. 6-78 P. balance up to 28-2-75 and Rs. 2676-98 rent up to 30-6-76 and Rs. 199-24 P. as interest up to 4-1-1977 after deducting Rs. 72-38 P. paid as water tax; total Rs. 2,884 without prejudice to their defences. Respondent is also entitled to repair expenses as per oral practice amounting to Rs. 578-69 P. and be considered payment also.

(b) Para No. 18 (b) is wrong as alleged. No proper and valid notices have been served.

19. Para No. 19 is wrong and hence denied. Premises No. 20 and No. 21 are distinct and separate. Earlier there were two separate owners. The tenants are different and so also the landlords are different. The property No. 21 has been purchased by petitioner No. 1 in 1966, The consolidated petition in present form is not maintainable.'

10. By the application under Order 6, Rule 17. C.P.C. the petitioner now wants to make the following amendments .

'(a) To delete para No. 2 of the preliminary objection of written reply.

(b) To delete following words from para No. 4 on merits of the written statement :

'The petition for the premises No. 20and premises No. 21 jointly in the present form is not maintainable as tenancies are separate and distinct'. And to add in its place following words

'The premises in dispute are covered under the definition of Sub-clause (d) of Section 2 as amended by Act No. 23 of 1978.' (c) To substitute the following para No. 11 in place of existing para No. 11:

'Para No. 11 as alleged in the petition is wrong and hence denied. The annual rent of the premises in dispute is Rupees 1,600 plus Rs. 72 as taxes @ Rs. 4 1/2%, i.e. , total Rs. 1,672 and not Rs. 2,090 as alleged. The taxes were not enhanced by Simla Municipal Corporation as claimed, so the petitioner is not entitled to the enhanced rate.' (d) To substitute the following para No. 14 in place of existing para No. 14:

'Para No. 14: In reply to para No. 14 it is submitted that the tenancy is one for the whole premises in dispute as admitted by the petitioner in para No. 9 and No. 19 of the petition. Anyhow the facts stated in preliminary objection No. 1 are reiterated.' (e) To add following words in existing sub-para No. (1) of para No. 18 of the written statement:

'That the petition is not maintainable in view of the amendment made in the Act by Act No. 23 of 1978 as the premises in dispute is non-residential.' (f) To substitute the following para No. 19 in place of existing para No. 19: 'Para No. 19 of the petition is correct.' The grounds upon which the petitioner seeks permission to amend the written statement as given in the application are that the provisions of Section 2 (d) of the Act have been amended by Act No. 23 of 1978, and as such the proposed amendments are necessary. A perusal of the original written statement filed by the tenant-petitioner and the proposed amendment will clearly show that the petitioner is seeking permission to introduce altogether new and inconsistent facts and by this amendment the tenant petitioner is, in fact, seeking to displace the landlord-respondents completely from the admission which had been made by the petitioner in his original written statement. The petitioner cannot be allowed to make these amendments which completely change the case of the tenant-petitioner which had been plead-ed by him in the original written statement. In Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram and Co. (AIR 1977 SC 680) a similar question arose and the Hon'ble Judges of the Supreme Court held that in such circumstances the amendment of the written statement is not permissible.

11. In view of the above discussion, I need not express any opinion on the facts as to whether the disputed premises will fall within the definition of the words 'residential building' or 'non-residential building' or as to whether the two premises are distinct and separate or not. The Rent Controller shall be at liberty to decide all such questions or any other questions arising between the parties at the appropriate time, and any remark or observation made heretofore shall have no bearing or effect on these questions or on the merits of the case.

12. For the above reasons this revision petition fails and the same is hereby dismissed, with no orders as to costs.

13. The parties are directed to appear before the Rent Controller (III), Simla, on 30th July, 1980.


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