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Judgment
M.S. Liberhan, J.—This order will dispose of the petition challenging the order of the Subordinate Judge granting the permission to amend the written statement.
The Plaintiff-Petitioner (hereinafter referred to as the Petitioner) brought a suit for possession on 21st September 1981, inter alia contending that one Dr. Ved Parkash Agarwal was tenant on the premises in dispute and after his death on 10th July, 1981, Defendant Respondents (hereinafter referred to as the Respondents) entered into possession of the premises. The tenancy was not heritable. No rights vested in the Respondents as legal heirs of the tenant.
The suit was contested. A preliminary objection was raised to the effect that the premises in dispute was let out by the adoptive mother of the Petitioner on 10th May, 1976, to M/s. Aggarwal and Company a firm doing opticals business, at the rate of Rs. 300/- per month. The firm had spent about Rs. 7382/- on the construction of the shop at the instance of Shrimati Kamla Devi, the adoptive mother of the Petitioner, and the Petitioner had agreed to get the amount adjusted against the rent Dr. Ved Parkash Aggarwal took the premises on rent as a representative of the firm Respondent No. 1 claimed that she being the sole surviving partner of the firm. M/s. Aggarwal and Company as well as the legal heir of Dr. Ved Parkash Aggarwal, was the tenant of the premises in dispute; and the tenancy was from month to month. She further claimed that the Respondents inherited the tenancy. Various other pleas were taken which are irrelevant for the purposes of the decision of this revision petition.
In the year 1984, the Petitioner sought an amendment of the plaint by adding para 1(a) to the effect, that the shop in dispute had been constructed in the year 1976 and, as such, it was exempted from the provisions of the Haryana Urban (Control of Rent and Eviction) Act. The amendment was allowed and the amended plaint was filed.
The Respondents filed supplementary written statement in reply to para 1(a) of the plaint added by way of amendment; and the written statement filed to the original plaint was adopted in toto. The facts averred in para 1(a) of the plaint were denied. It was specifically pleaded that the shop in dispute was not constructed in the year 1976 and the same was not exempt from the provisions of the Haryana Urban (Control of Rent and Eviction) Act. In fact, the shop was an old one which was built much earlier to the partition of the country and in the year 1975-76 streets in the neighbourhood were widened by the Improvement Trust, Karnal, as a result whereof the area of the old shop was decreased and only the demolished portion had been repaired and plastered to bring it in consonance with the existing situation after demolition of the part of the shop. A further objection was raised that since in the amended plaint the tenancy of the Respondents was admitted, the jurisdiction of the Civil Court was ousted
The Respondents sought the amendment of the written statement to the effect that:
(i) the words "the answering Defendants adopt the same (written statement to the original plaint) in toto as against the amended written statement" be deleted;
(ii) in the preliminary objection where the word ''construction'' had been used, the same be permitted to be substituted by the word ''repairs''; and
(iii) an additional plea to the effect that no notice u/s 106 of the Transfer of Property Act was served on the Respondents Terminating the tenancy be permitted to be taken
It was averred that the errors were clerical and incidental and had crept in inadvertently.
The application for amendment of the written statement was (Sic) on the round that the Respondents could not be permitted to wriggle out of the admission made earlier to the effect, that the shop in dispute was constructed in the year 1976. The plea with respect to the service of notice could not be allowed to be taken at this belated stage as the same was not taken earlier and it amounted to waiver.
The trial Court allowed the amendments and observed that the laches, in the facts and circumstances of the case, could be compensated in money.
The counsel for the Petitioner contended that so far as the amendment with respect to granting the permission to take the plea with respect to notice is concerned, the same cannot be allowed as not taking the plea of the notice amounts to abandoning the same. The counsel relies on Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and Others, and Madan Lal v. Hukam Chand 1977(2) R.L.R. 502.
In Gauri Shankar''s case (supra) it was observed that the proceedings before the Rent Controller dragged on for a number of years, but no plea was taken that the notice to quit had not been served. At the fag end of the proceedings before the trial Court, amendment was sought in the written statement to raise the plea of want of notice to quit and its illegality. The trial Court allowed the amendment observing "it amounts only to a question of law". The Supreme Court while setting aside the said finding observed:
It is true that a question not agitated before the lower appellate Court or expressly given up there can be allowed to be raised if it is a pure question of law but in permitting the same to be done, the Court has to consider whether in exercise of proper and judicial discretion such a point should be permitted to be agitated when it has been conceded or abandoned before the Court below. While giving permission to argue that point the Court has to look at all the facts and circumstances, the conduct of the parties seeking to raise that point is of great importance
The Supreme Court, after observing that the landlord''s title was being disputed at numerous stages and ultimately in a suit for eviction which dragged on for several years no plea was originally taken in the written statement with respect to the valid notice to terminate the contractual tenancy having been served and the Respondent waited for about eight years before seeking the amendment, opined that no such amendment should have been allowed on account of the gross delay and laches on the part of the Respondent in raising such a plea. It was observed as under:
The trial Court did allow the amendment but in our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the Respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had been raised at an earlier stage the Appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly eight years a great deal of prejudice was caused to the Appellant.
It was further observed:
In our judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the Court that any argument based on the absence of a valid notice should not have been allowed.
To the similar effect are the observations made in Madan Lal''s case (supra) wherein it was abserved that plea of want of notice to terminate the tenancy cannot be permitted to be raised after a lapse of nine years.
The counsel for the Respondents contended that there were no laches on the part of the Respondents. In fact the case lingered on account of the conduct of the Petitioner inasmuch as from 1981 till 1988, the Petitioner was able to examine only one witness and the case is still at the stage of the Petitioner''s evidence Since no plea with respect to the termination of the tenancy was taken, so the question of waiver of the plea of notice could not be raised in the facts and circumstances of this case. The only contention raised in the unamended suit was that, after the death of the tenant, the tenancy rights being not heritable, the heirs of the tenant, were trespassers. In the year 1984 a vague plea was raised that the building was constructed in the year 1976 and, as such. it was exempt from the provisions of the Haryana Urban (Control of Rent and Eviction) Act Still, in spite of the amendment in the plaint, the sum and total claim of the Petitioner for possession was that the tenancy was not heritable and the provisions of the Rent Act were not applicable Therefore, the Petitioner was entitled for possession. No plea was raised by the Petitioner with respect to the termination of the tenancy. Rather, the relationship of landlord and tenant was denied by the Petitioner so far as the Respondents were concerned. It was only after the Petitioner had taken the plea with regard to tenancy that the plea of validity of service of notice could have been raised. It was only in those circumstances that the Respondents could have raised the plea that the notice was bad. It is further contended that the amendment of the written statement stands on a better footing and the plea with respect to notice is being taken as an abundant caution though the suit as such is not maintainable. Even if the suit is permitted to stand as today, no ejectment can be ordered. The counsel in order to support his submission relied on Batoo Mal Vs. Rameshwar Nath and Others, , and Daya Ram v. Puran Chand etc. (1974) 76 P.L.R. 100
I find no force in the contentions raised by the counsel for the Respondents It was observed in Batoo Mal''s case (supra):
Ordinarily a landlord suing or applying for the eviction of a tenant must plead that the contractual tenancy has been terminated. If the tenant does not take the plea that the suit or the application is untenable due to the non termination of the contractual tenancy then he would be either deemed to have admitted the allegation of the landlord by non-traverse or to have waived the benefit of the protection of Section 106 of T.P. Act. If, however, the landlord fails to plead the termination of the contractual tenancy, his petition for eviction of the tenant would not be liable to be rejected for want of a cause of action, for some other facts such as wrongful acts of the tenant also constitute a cause of for eviction and a part of the cause of action would still be disclosed.
I am afraid, the judgment relied upon by the counsel for the Respondents does not support his contention. It is otherwise. The law of the land as observed in the said judgment is in pari materia with the law laid down in Gauri Shankar''s case (supra).
The trial Court while distinguishing Gauri Shankar''s case (supra) observed that the amendment therein was sought at the appellate stage. The counsel for the Respondents conceded that the observation made by the Subordinate Judge to this effect could not be sustained. It was against the facts of the judgment cited. The facts and circumstances as well as the law laid down in Gauri Shankar''s case (supra) squarely cover the facts and circumstances of the present case.
There is no dispute that there was no plea by the landlord terminating the tenancy. Rather, the landlord did not accept the Respondents as his tenants. The amendment of the written statements is being sought after a lapse of almost seven years. It would be reasonable to infer that the plea was not raised earlier intentionally so as to pass away the period of exemption and then to non-suit the Petitioner by raising the plea of notice. It amounts to nothing but playing a game of chess in civil lis, which is not permissible in law. The conduct of the Respondents in remaining silent for such a long period shows that they abandoned the plea of notice and the amendment sought to the effect of non-service on notice is not bona fide and suffers from lack of good faith. The proposed amendment being belated cannot be permitted. Since the trial Court failed to bear in mind the law laid down by the Supreme Court and well known principles in deciding the point involved, its finding that the delay arid laches can be compensated with money cannot be sustained Had the plea been taken with respect to the notice, the landlord might have withdrawn the suit with permission to file a fresh one on the same cause of action. My view further finds support from the judgment cited by the counsel for the Respondents.
In view of the observations made above I find force in the contention raised by the counsel for the Petitioner. Resultantly, permission to amend the written statement so as to take the plea of want of notice with respect to the termination of the tenancy cannot be granted. Therefore, the permission granted by the trial Court to amend the written statement to take the plea of non-service of notice is set aside and the proposed amendment is rejected.
There is no dispute with the proposition of law laid down in Daya Ram''s case (supra) that amendment of written statement can be allowed at any stage. New plea can be permitted to be raised which goes to the root of the case and in the administration of justice is justified. The amendment can be allowed to determine the real question of controversy at any stage though the permission to grant the amendment of the written statement depends on facts and circumstances of each case.
The counsel for the Petitioner submitted that the Respondents cannot be permitted to withdraw the admission made by them to the effect that the building was constructed in the year 1976 If the word ''construction'' is permitted to be deleted and word ''repairs'' is substituted in its place, it would amount to retraction of the admission made in favour of the Petitioner. Apart from this, it will change the nature of the suit itself. He relied on Jagdish Singh and Ors. v. Chander and Ors. 1978 P.L.J. 389 and Surjeet Singh v. Kartar Singh 1987 P.L.J. 184.
It has been observed in Jagdish Singh''s case (supra) that amendment seeking to introduce entirely a new cause and to displace Plaintiff completely from admission made by Defendant in written statement cannot be allowed.
In Surjeet Singh''s case (supra) it was observed that in view of the admission made in the written statement and statement made by the Defendant in Court, he cannot be permitted to withdraw the admission.
There is no dispute with the proposition of law laid down in the judgments cited by the counsel for the Petitioner However, the facts in hand are quite distinct. There is no gainsaying that the pleadings are to be read as a whole. A word or a sentence cannot be called out and read in isolation. I was taken through the written statement as well as the replication filed. In the written statement, particularly reply to para 1(a) of the amended plaint it was specifically pleaded by the Respondents that "in about 1975/76. during the emergency, the streets in the neighbourhood of the shop were widened by the Improvement Trust, Karnal and in the process the old shop was decreased in size, like other neighbouring shops inside Karan Gate. There was no new construction Only the demolished portion had been repaired and plastered to bring it in consosance with the existing situation after demolition of the part of the shop" The reading of this para makes it clear that there was no construction and the word ''construction'' used in preliminary objection No of the written statement has been used loosely particularly when the Petitioner himself in his replication controverted the alleged allegation made in para 1 of the preliminary objection with respect to the reconstruction in the year 1956 when the premises in dispute are alleged to have been taken on rent by the predecessor-in interest of the Respondents In such a situation, it cannot be said that there was any admission much less clear and unambiguous admission which the Respondents proposed to withdraw by the amendment sought, viz by deleting the word ''construction'' and substituting it with the word ''repairs''. It the pleas are taken in totality, the intention of the Respondents is clear that they only wanted to say that they had repaired the shop in dispute Whether the alleged repairs would amount to reconstruction is a question which shall be determined on merits at the time of disposal of the suit. In the facts and circumstances of the case it cannot be said that it amounts to withdrawal of the admission.
The counsel for the Respondents further contended that even the admission can be permitted to be withdrawn if it has been shown to be wrong or made under some misapprehension. The admission can be explained or can be withdrawn even The counsel for the Respondents relies on Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, .
In view of the observations made by me above, the amendment with respect to the deletion of the word ''construction'' and substituting it with the word ''repairs'' does not deprive the Plaintiff of any of his rights nor displaces his suit in particular when he himself has denied the alleged construction in 1976 in the replication. The trial Court was within its jurisdiction to allow the amendment. I find no force in the contention raised by the counsel for the Petitioner challenging the permission to amend the written statement by substituting the word ''construction'' with the word ''repairs''. I affirm the finding of the trial Court in this respect.
Lastly, the counsel for the Petitioner submitted that the procedure envisaged by the Order 6 Rule 18 of the CPC has not been followed. The amendment was allowed on February, 12, 19 9. No time was fixed in the impugned order by which the amended written statement was to be filed.
Order 6 Rule 18 of the CPC reads as under:
Failure to amend after order.--If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time if extended by the Court.
A bare rading of the provision makes it obvious that if there is no specified time provided in the order for leave to amend, the statute has provided fourteen days'' time from the date of order; and after the expiry of the said period, unless the time is extended by the Court''s order, no amendment can be allowed. Prima facie the submission was very attractive, but on a little scrutiny the contention cannot be sustained. It is not disputed that on 2nd March, 1989, a clarification or a review was sought from the trial Court, who vide its order dated 15th March, 1989 allowed the Respondents to file the written statement on 4th April, 1989, after taking notice of the provisions of Order 6 Rule 18; and the written statement was filed. There is no doubt that on 10th March, 1989, proceedings before the trial Court were stayed though there is nothing on the record if the order dated 10th March, 1989, was ever served on the Respondents or on the trial Court. Though the order comes into operation the moment it is passed but in the facts and circumstances and in view of the absence of the knowledge of the trial Court of the order dated 10th March, 1989. it cannot be assumed that the order expressly permitting the Respondents to file the written statement by 4th April, 1989, would be without jurisdiction. It implied that the time to file the reply had been extended. At the most it may be an irregularity which in substance, is not sufficient enough to take note of and allow the revision petition in toto The rules of procedure are meant to do the substantial justice and not to gag the fair trial of the lis between the parties. Since the written statement has already been filed on the record, the Petitioner would not suffer any injury much less substantial injury. In terms of the added provision of Section 115 of the Code of Civil Procedure, if the order extending the time to file the reply is allowed to stand, it would not occasion any failure of justice or cause irreparable injury to the Petitioner. In view of these facts and circumstances I do not find any force in the contention raised by the counsel for the Petitioner.
In view of the above observations of mine, the revision petition is partially allowed in terms stated above and the impugned order is modifide to the extent the observations made above. The Respondents are permitted to amend he written statement by substituting the word ''construction'' by word ''repairs'' as prayed by the Respondents and the prayer to raise a preliminary objection by amendment of the written statement to the effect of non-service of notice is declined. Accordingly the revision petition is disposed of with no order as to costs. The Defendants shall file the amended written statement on or before July 30, 1989.