Allowed

Allahabad Bank v. Abhishek Gupta

Allahabad HC8 May 2018A227/3091/2018

Case brief

AI extract

What is this about?

This High Court permitted the petitioner bank to amend its written statement in an eviction suit. The amendment sought to bring on record a dispute regarding ownership among the former landlord's legal heirs. The court set aside the lower court's rejection of the amendment application, ordering it to be reconsidered as the trial had not commenced and allowing amendments are necessary to determine

What did the court decide?

The impugned order rejecting the amendment application is set aside. The Trial Court is directed to reconsider the Amendment Application and pass orders on merit within one month.

Allahabad Bank Vs Abhishek Gupta — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3091 of 2018

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Petitioner :- Allahabad Bank Respondent :- Abhishek Gupta Counsel for Petitioner :- Pashupati Nath Tripathi

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Hon'ble Mrs. Sangeeta Chandra,J.

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(Oral).

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This petition under Article 227 of Constitution of India has been filed by the petitioner praying for setting aside the order dated 06.03.2018 passed by learned Additional District Judge, Court No. 16, Kanpur Nagar in SCC Suit No. 65 of 2013 (Abhishek Gupta Vs. Allahabad Bank).

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Petitioner which is a bank has taken the premises No. 120/246, Lajpat Nagar, Kanpur on rent from its landlord, Mr. Kishan Narain at the rate of Rs. 9189/- per month by a lease deed dated 09.08.1993. The carpet area is 2065 square feet. The rent was enhanced from time to time and lastly in 2016 it was enhanced to Rs.27,815/- per month.

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After death of original landlord Mr. Kishan Narain his son Subhash Gupta became the landlord and the petitioner continued to pay the rent to Mr. Subhash Gupta. After Subhash Gupta the respondent No. 1, Abhishek Gupta, claimed to be sole landlord of the premises in question and on the basis of such claim a lease deed was signed between the bank and Mr. Abhishek Gupta on 04.08.2007 with respect to tenancy starting w.e.f. 26.12.2006 up to 25.12.2011. However, the bank continued in possession of the premises in question even after 25.12.2011 though no lease deed has been executed thereafter. Shri Abhishek Gupta asked the bank to enhance the rent and thereafter, also issued a legal notice through his Advocate in January, 2013 terminating the tenancy.

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He thereafter filed SCC Suit No. 65 of 2013 on 24.04.2013. The bank submitted its reply/written statement and during the pendency of the said Suit came to know that one of the legal heirs of Kishan Narain claiming ownership through his father Ram Gupta, the other son of Kishan Narain had filed a Suit No. 2639 of 2014 for partition of the property. The bank is defendant No. 6 in such Suit No. 2639 of 2014 and after coming to know of the dispute of ownership of the property in question, the bank filed an Application for amendment on 18.01.2018 for

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making necessary amendments in the written statement to bring on record the dispute amongst the legal heirs of late Kishan Narain, the erstwhile owner and landlord of the property in question. The Amendment Application has been rejected by the impugned order dated 06.03.2018.

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Learned counsel for the petitioner bank states that since the bank came to know about the dispute relating to ownership of the property in question, it was bound to bring the same on record in the written statement so that at the time of consideration of the case on merit the bank could raise a legal plea regarding the relationship of landlord and tenant. By rejection of the Amendment Application one of the grounds of defence has been taken away from the defendant.

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Shri J.P. Sinha, Advocate who appears for the landlordrespondent has pointed out from the order impugned that it is the admitted case between the parties that a lease deed was signed in 2007 between Abhishek Gupta and the bank. On the basis of this lease deed the bank was paying rent to Abhishek Gupta. It cannot now turn around and challenge the title of Abhishek Gupta. Moreover, in the order impugned the learned Court below has relied upon several judgments of this Court and of the Supreme Court which say that in case the landlord and tenant relationship fails to be established, then, the suit shall automatically be dismissed as not maintainable.

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I have heard learned counsel for the parties and I have also perused the order impugned passed by the learned Additional District Judge, Court No. 16, Kanpur Nagar rejecting the Amendment Application.

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This Court finds that the Amendment Application was moved under Order VI Rule XVII of the Code of Civil Procedure and under Order VI Rule XVII CPC the Court may at any stage of proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments may be made as are necessary for the purpose of determining the real question in the controversy between the parties. The Proviso to the said Rule however says that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. In this case the Proviso would not apply as the trial has not yet commenced.

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There is no such finding recorded by the learned Trial Court regarding the commencement of trial. With regard to the

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amendment of the pleadings the settled view taken by several binding precedents of the Supreme Court and of this Court is that the Court should be liberal in permitting such amendments. Moreso, when such amendments are necessary for the purpose of determining the real question in the controversy between the parties. If the bank came to know of the certain facts which needed to be brought on record to determine the real question relating to the controversy involved the Amendment Application ought to have been allowed and all valid grounds of defence available to the defendant ought to have been allowed to be taken by it. There cannot be any preemption of grounds of defence. The order impugned is thus set aside. The Amendment Application shall be reconsidered by the learned Trial Court and orders passed on merit afresh within a period of one month from the date of production of a certified copy of this order before him.

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The petition is disposed off.

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Order Date :- 8.5.2018 LBY

Allahabad Bank v. Abhishek Gupta

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Allahabad Bank v. Abhishek Gupta

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