2017(2) Law Herald (P&H) 1068 : 2017 LawHerald.Org 853

INTHEHIGH COURT OF PUNJAB AND HARYANA

Before

The Hon’ble Mr. Justice G.S. Sandhawalia

C.R. No.4577of2016 (0& M)

Gobind Gupta

v.

Ritu Chopra

Decided on 15/03/2017

For the Petitioner:             Ms. Parminder Kaur, Advocate.

For the Respondent:       Mr. Hitesh Pandit, Advocate, Mr. Vaibhav Sehgal, Advocate.

East Punjab Urban Rent Restriction Act, 1949, S.13–EvictionAmendment of Pleadings-Due diligence–By way of amendment tenant attempted to incorporate the additional pleading wriggling the admission of the relationship of the landlord tenant interse the parties-Such amendment by tenant cannot be considered to be bonafide as such and thus rightly rejected.

CASES CITED:

  1. Vidyabai & Ors. v. Padamalatha & Anr., 2009(1) Law Herald (SC) 540. (Para 2)
  2. Samuel & Ors. v. Gattu Mahesh & Ors., 2012(1) Law Herald (SC) 700. (Para 2)
  3. Surender Kumar Sharma v. Makhan Singh, 2009(5) Law Herald (SC) 3487. (Para 3)
  4. Manila Ramkali Devi & Ors. v. Nandram(D) through LRs.& Ors., 2015(3) Law Herald (SC) 2579 : 2015
    Org 1335 : 2015(4) Law Herald (P&H) 2839 (SC). (Para 3)
  5. Amar Singh v. Nirmal Singh & Ors., decided on 11.04.2016. (Para 3)
  6. Pande & Anr. v. Swami Keshav Prakesh das ji N. & Ors., 2006 (12) SCC 1. (Para 4)
  7. Gobind Gupta v. Ritu Chopra, datedl8/6/2015. (Para 8)
  8. Revajeetu Builders & Developers v. Narayanaswamy & Sons & , 2009(6) Law Herald (SC) 3662.
    (Para 12)

JUDGMENT

Mr. G.S.Sandhawalia, J. (Oral) – The present revision petition has been filed by the tenant petitioner under Article 227 of the Constitution of India against the order dated 12.05.2016 (Annexure P-3) passed by the Rent Controller, Ludhiana whereby, the application under Order 6 Rule 17 CPC for amendment of the written statement as been dismissed.

  1. The reasoning given by the Rent Controller in the impugned order primarily is that the issues were framed on06.02.2016 and thereafterS witnesses had been examined in chief. The cross examination was being deferred and ultimately on 29.04.2016, the application had been filed for amendment. Resultantly, keeping in view the proviso under Order 6 Rule 17 CPC, it was held that there was no due diligence that the said pleadings could not have been incorporated in the written statement at the initial stage. The facts were duly in the knowledge of the respondent and nothing had been stated as regarding the due diligence aspect. Resultantly, reliance was placed upon judgment of the Apex Court in Vidyabai and others vs. Padamalatha and another, [2009(1) Law Herald (SC) 540]: 2009 (1) RCR (Civil) 763 and J. Samuel and others vs. Gattu Mahesh and others, [2012(1) Law Herald (SC) 700]: 2012 (1) RCR (Civil) 903. It was, thus, held that the proviso was couched in a mandatory form and the Court was not to allow the application unless the conditions precedent were satisfied.
  2. Counsel for the petitioner has vehemently argued that in another set of litigation, the same
    Rent Controller, vide order dated 12.05.2016 (Annexure P-6), had allowed the amendment
    application which was filed. She resultantly relied upon the judgments of the Apex Court in
    Surender Kumar Sharma vs. Makhan Singh, [2009(5) Law Herald (SC) 3487]: 2009 (10)
    SCC 626; Mahila Ramkali Devi and others vs. Nandram(D) through L.Rs. and others,
    [2015(3) Law Herald (SC) 2579 : 2015 LawHerald.Org 1335 : 2015(4) Law Herald
    (P&H) 2839 (SC)]: 2015 (5) RCR (Civil) 562 and judgment of this Court in C.R. No. 4637
    of 2015, Amar Singh vs. Nirmal Singh and another decided on 11.04.2016 in support
    of her case to submit that the law of amendment is liberal and, therefore, the order of the
    Rent Controller is not justified.
  3. Onthe other hand, counsel for the respondent has submitted that reliance upon Vidya bai’s
    case (supra) and Samuel’s case (supra) was justified. He has also placed reliance upon
    the earlier judgment of the Apex Court in Ajendraprasad ji N. Pande & Another vs. Swami
    Keshav prakesh das ji N. and others, 2006 (12) SCC 1 to submit that once the trial has
    commenced and the issues had been settled, the amendment could not be allowed in the
    absence of any due diligence pointed out.
  4. A perusal of the pleadings inter se the parties would go on to show that petition was filed for
    eviction from the property which is a garage forming part of Property No. B-IV-686, Mali Ganj,
    It was the case of the landlady that the paternal grand father was the owner and he
    was a practising doctor. The present petitioner was a compo under with him and continued
    occupying the said clinic after his death on 25.09.1984. He had left behind a registered Will
    dated 17.08.1984 in favour of his daughter-in law Veena Chopra. The petitioner-
    tenantcontinued attending the said clinic as a licensee of Veena Chopra and she expired on
    08.10.2012 leaving behind the registered Will in favour of the landlady and she became the
    exclusive owner of the property. Thereafter, the rent was settled between the landlady and the
    tenant @ Rs.18,000/- per month of the clinic portion, for which separate ejectment petition has
    been filed in which the amendment has been allowed. Since there was an old association, she
    did not insist regarding the payment of arrears of rent. She had also let out the garage which
    was the disputed property @ Rs.5,0007- per month w.e.f. 01.07.2014 and a rent note was alsu
    executed. The garage was shown as a shop since it was the part of the residential house and
    there is an access between the said portion and the remaining portion of the house. The
    landlady was residing in Chandigarh at that point of time. She, thus, filed a petition on the
    grounds of bona fide necessity as being Manager (Administrator and Facilities) in the Induslnd
    Bank, Pakhowal Road, Ludhiana. Earlier, on account of shifting to Chandigarh, she did not
    feel the necessity of the garage. Now, on her transfer back to Ludhiana, she was being
    compelled to park her car in front of the property and required the premises as such being a
    woman and there was no other parking place. She was being harassed as such at the time
    when the car was being parked at the odd hours by the policeetc.
  5. In the written statement filed by the petitioner-tenant, the factum that he was working as a
    compounder with the grand father of the landlady was admitted. The shop had been let out at
    a monthly rent of Rs.200/- by Dr. Maghi Ram Chopra and he had been paying the rent and
    after his death, to Smt. Veena Chopra and after her death, to the present landlady
    The fact that he had continued occupying the premises as a licensee was denied.
    The rate of rent of the other shop also was denied. It was admitted that the rent from Rs.200/
    – was increased to Rs.3,000/- w.e.f. March 2015 and it was paid up to August 2015. The rent
    note was stated to be inadmissible in evidence and the shop was a part of the residential house
    was denied. It was, however, also mentioned that in the rent note there was a mention of the

presence of the shop and the rent note was got prepared by the landlady. The relationship also of the landlord-tenant was admitted. On the basis of these pleadings, only two issues were framed on 06.02.2016 i.e. whether the property in dispute was required by the petitioner for personal use and occupation and secondly whether the petition was not maintainable.

  1. As noticed, the evidence was tendered on the next date i.e. on 04.03.2016 and on 3
    occasions, the landlady was present along with two other witnesses on 21.03.2016 and
    03.2016. She also appeared on 19.04.2016 when the counsel was changed. It is at that
    stage the application for amendment was filed.
  2. A perusal of the application for amendment would go on to show that various other pleadings
    have now been sought to be incorporated, regarding the legal notice dated 23.07.2015 sent
    earlier regarding the requirement of the shops for establishing apart time coaching center and
    the combining of both the shops. Various other objections regarding concealment of
    construction of properties in the possession of the landlady and not the correct site plan were
    pleaded apart from pendency of some civil suit and a dispute was sought to be raised that
    there was litigation inter se the landlady and the brother and she did not have title apart from
    that two separate ejectment petitions against the same tenant were not maintainable. The
    proposed amendment reads thus:-

“1. That the petitioner has filed this petition out of greed. There is no need of the petitioner on the following ground:-

  • She has not come to the court with clean hands and she is guilty of concealment of facts having
    effect on the merits of the case. It is pertinent to mention here that before filing this false petition, the
    petitioner had sent a legal notice dated 23/7/2015 signed by her whereby she took the plea that she
    requires both the shops for establishing a pert time coaching centre in both the shops. Copy
    She had also taken plea in that notice that she wants to combine both the shops in one unit
    and wants to renovate the same for establishing a part time coaching centre, whereas, all together
    different and false ground has been taken in the petitions.
  • The petitioner has also concealed about the construction of the properties in her possession and
    she has also not filed correct site plan of the property in question as well as of the properties alleged
    in the petition. The petitioner already is in possession of accommodation more than her needs.
  • The present petition has been filed out of vendetta and as a counter blast to the civil suit for permanent
    injunction filed by the respondent titled “Gobind Gupta Versus Ritu Chopra” datedl 8/6/2015.
  • She has not intentionally made her brother Aditya Chopra as a party to the present petition and thus
    the petition is bad for non-joinder of the necessary parties. The petitioner has concealed about the
    litigation i.e. civil suits pending in between the petitioner and her brother Aditya Chopra on the day of filing
    the present false petition, which are pending in the court of Ms Mehak Sabharwal, CJ.JD, Ludhiana.
  • The petitioner has no locus stand! to claim the ground of bonafide necessity. She has no right to file this
    petition until and unless she proves her title by way of probate of alleged Wills claimed in the present petition.
  • The petition is bade for partial ejectment. Separate two ejectment petitions against same tenant
    regarding the tenancy in same building are not legally maintainable. Thus, the petitioner is estopped
    by her own act and conduct from filing the present petition.”
  1. The same were objected to on the ground that merely on account of change of counsel,
    amendments were not to be allowed. The landlady was being harassed by taking these pleas.
    Since issues had been framed and evidence had been led, amendment could be allowed.
    Mere filing of civil suit did not debar the petitioner from filing the petition. The facts were
    available to the respondent at the time when the written statement was being prepared and,
    therefore, there was no due diligence.

 

  1. A perusal of the other order allowing amendment on 12.05.2016 would go on to show that
    the other petition was filed regarding the eviction of the clinic portion which also forms part of
    Property No. BIV-686, Mali Ganj, Ludhiana. The Rent Controller, in that case, had allowed the
    amendment on the ground that the matter was pending for assessment of provisional rent and
    the trial was yet to commence and the permission was, thus, granted to file the amended
    written statement. In the present case, the facts as noticed, are totally different and, therefore,
    reliance by the counsel on the other order is not justified. Rather, it would go on to show that
    the Rent Controller has duly applied his mind to the facts and circumstances and to the legal
    position as such to allow amendment in one case and deny in the other in view of the settled
    position of law. The Apex Court in Ajendra Prasad ji N. Pande’s case (supra) held as under:-

“40. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised be fore the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order VI Rule 17 was due to the recommendation of the Law Commission since Order 17 as it existed prior to the amendment was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the Amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of Courts and, therefore, by Civil Procedure Code (Amendment} Act, 2002, provision has been restored by recognizing the power of the Court to grant amendment, however, with certain limitation which is contained in the new proviso added to the Rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their Court case, and manifests the absence of due diligence on the part of the appellants disentitling them torelief.

XXX                                                  XXX                                         XXX

  1. In our opinion, the facts above-mentioned would also go to show that the appellants are lacking
    in bona fide in filing this special leave petition before this Court. It is also to be noticed that the High
    Court has recorded relevant points in its elaborate judgment dated 05.10.2005 and have been dealt
    with despite the opposition of the contesting respondents that these pleas were not taken in u ie
    written statement. Under these circumstances, non-seeking of appropriate amendment at
    appropriate stage in the manner envisaged by law has dis- entitled the appellants to any relief. The
    amendment, in our view, also seeks to introduce a totally new and inconsistent case.
  2. We have carefully perused the pleadings and grounds which are raised in the amendment
    application preferred by the appellants at Ex. 95. No facts are pleaded nor any grounds are raised in
    the amendment application to even remotely contend that despite exercise of due diligence these
    matters could not be raised by the appellants. Under these circumstances, the case is covered by
    proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of
    amendment at this belated stage when deposition and evidence of three witnesses is already over
    as well as the documentary evidence is already tendered, coupled with the fact that the appellants’
    application at Exh. 64 praying for recasting of the issues having been denied and the said order never
    having been challenged by the appellants, the grant of the present amendment as sought for at this
    stage of the proceedings would cause serious prejudice to the contesting respondents – original
    plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the
    petition be dismissed.”
  3. As noticed, a civil suit also was pending inter se the parties. The factum of the dispute inter
    se the family members was also apparently well known and now is sought to be incorporated
    in the pleadings and, thus, an effort is being made to wriggle out of the admissions of the

relationship of the landlord-tenant inter se the parties. The Rent Controller is only to decide the issue of the personal necessity which has to be thrashed out and pleadings have been discussed in detail above and, therefore, by trying to incorporate the additional pleadings, the attempt of the tenant cannot be considered to be bona fide as such.

  1. The principles which have been laid down by the Apex Court in Revajeetu Builders and
    Developers vs. Narayanaswamy & Sons and others, [2009(6) Law Herald (SC) 3662]:

2009 (10) SCC 84 would, thus, come into play that whether the amendment is bona fide, legitimate and if a somersault is being taken to get out of the earlier admissions, then the courts could not permit the amendment. The said principles read thus:-

“67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

  • Whether the amendment sought is imperative for proper and effective adjudication of the case?
  • Whether the application for amendment is bona fide or mala fide?
  • The amendment should not cause such prejudice to the other side which cannot be

compensated adequately in terms of money;

  • Refusing amendment would in fact lead to injustice or lead to multiple litigation;
  • Whether the proposed amendment constitutionally or fundamentally changes the nature and

character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims

would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner . We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and ordis honest amendments.”

13 In such circumstances, keeping in view the above discussion, the judgments which have
been relied upon by the petitioner would not be applicable keeping in view the amendment as
such sought cannot be considered bona fide and legitimate and suffering from lack of due
diligence. Resultantly, this Court is of the opinion that the order dated 12.05.2016 (Annexure
P-3) which is passed by the Rent Controller is well justified and is accordingly upheld and the
present revision petition is dismissed.