Petitioner-tenant challenged the dismissal of his application to amend written statement. High Court held the application was mala fide, intended to delay eviction proceedings for landlord's sons, and dismissed petition in limine with notice to landlord waived.
Application for amendment dismissed; High Court order upheld; no further costs imposed.
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C.R. No.1507 of 2012
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No.1507 of 2012 (O & M) Date of decision: 07.03.2012
Sunil Kumar ….Petitioner
Vs.
Lal Chand and others
….Respondents
CORAM: HON’BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Rose Gupta, Advocate, for the applicant-petitioner.
G. S. SANDHAWALIA, J. (ORAL)
C.M. No. 6436-CII of 2012
Application filed under Section 151 CPC seeking exemption from filing certified copies of Annexures P-1 to P-5 is allowed, in view of the averments made in the application, which are duly supported by an affidavit.
C.R. No.1507 of 2012
The present petition is directed against the order dated 14.02.2012 whereby the second application of the tenant for amendment has been dismissed with costs of Rs. 1000/-. The case has a chequered history starting from the ejectment petition filed in the year 1998 on the ground of bona fide personal need of the respondents-landlords and the ejectment order was passed on 27.10.2005. When the matter was pending before the appellate authority, an application for amendment of the written statement was filed and the appellate authority directed that the application be heard with the main appeal. The petitioner-tenant challenged the said order before this Court and this Court vide order dated 16.09.2009 passed
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2
in Civil Revision No. 596 of 2009 directed that the appellate authority should firstly decide the application for amendment of the written statement and thereafter take up the main appeal. This Court also directed that the application for mesne profits moved by the landlord should be decided before the final decision of the appeal.
The Appellate Authority after taking into consideration the amendment, came to the conclusion that the same was not necessary for the purpose of determining the real controversy between the parties as the location of the shop in question and the boundaries of the site plan was being disputed and dismissed the application on 26.11.2010. The appellate authority had also fixed mesne profits on 10.01.2011 @ Rs. 4,000/- per month in pursuance of the directions of this Court. The said order was challenged before this Court which was upheld on 09.08.2011 in Civil Revision No. 1132 of 2011. Thereafter, the present application for amending the written statement was filed in which, it was stated that the tenant had come to know in the first week of December the three sons of the landlord were running their own business in a shop owned by Mandir Bagraian Trust, Hisar and the landlord had no connection with the business being run by his sons and the ground of personal necessity of his sons was not available to the landlord. Accordingly, the following amendment was sought:-
“P.0.6- That the respondents have not come to the court with clean hands and they have suppressed true and material facts from the learned Rent Controller. The appellant has further come to know that all the three sons of the respondent no. 1 Lal Chand i.e. Suresh Kumar, Subhash Chander and Vijay Kumar are running their business in a shop owned by Mandir Bagrian Trust, Parav Bazar, Hisar and
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that the respondent No. 1 has no connection with the business being run by his sons namely Suresh Kumar, Subhash Chander and Vijay Kumar in the said shop, therefore, the ground of personal necessity of these sons of the respondent is not available to the respondents.”
The said application was opposed on the ground that it was for harassment and the tenant was aware from the beginning that Lal Chand was the proprietor of Singla Cloth House and a tenant in the shop in Mandir Bagraian Trust, Hisar. The application has now been dismissed vide the impugned order on the ground that the application is only to delay the proceedings and to harass the landlord and even the earlier application for amendment had been rejected on 26.11.2010. It was also noticed that during cross examination, it was revealed that Suresh Kumar and Vijay Kumar were not doing any business in the shop in Mandir Bagraian Trust, Hisar and there was also a suggestion that Lal Chand, the landlord was not doing the business but his sons were doing the business. Therefore, considering the fact that the application was filed only to delay the proceedings and harass the landlord, the appellate authority dismissed the application.
Counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Supreme Court of India cited as Revajeetu Builders & Developers vs. Narayanaswamy & Sons and others, 2009 (10) SCC 84 to contend that the amendment sought is imperative for proper and effective adjudication of the application. The said submission cannot be accepted. It is apparent that the tenant has successfully delayed the proceedings for a period of 7 long years before the Rent Controller initially and the appeal has been pending since November, 2005 before the
C.R. No.1507 of 2012
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appellate authority wherein, one application or the other is filed, as has already been noticed. This is the second application for amendment of the written statement. The appellate authority has also noticed that the mesne profits as assessed by the appellate authority in pursuance of directions of this Court have not been paid though the said order was challenged before this Court and Hon'ble Supreme Court and, therefore, the proceedings before the appellate authority have also been prolonged for more than 6 long years. Needless to say that the eviction is on the ground of personal need of the sons and the delaying tactics adopted by the tenant are apparent on the face of it. The judgment relied upon by the counsel for the petitioner notices that the provisions of Order 6 Rule 17 CPC are one of the most important provisions of CPC but are also one of the most misused provisions of the Code. The principles laid down in para no. 63 are directly applicable and it can be safely said that the present application is not bona fide rather it is mala fide. The amendment would neither be necessary nor fundamentally change the nature and character of the case. The parties have already led their evidence. The sole purpose is to delay the proceedings and frustrate the landlord who wants the shop in question for the use of his sons.
Resultantly, it can be safely said that the order passed by the appellate authority is absolutely just. In fact the costs of Rs. 1,000/- are very paltry but this Court does not impose any further costs because the landlord is not being called upon before dismissing this petition.
Accordingly, the present petition is dismissed in limine.
(G.S.SANDHAWALIA) JUDGE
07.03.2012 shivani
3 issues framed by the court
Whether an application for amendment of a written statement should be allowed when it is solely for delaying proceedings.
Whether the principles of Order 6 Rule 17 CPC were misused by the tenant.
Whether the landlord’s right to personal use by his sons was being frustrated by the amendment.
Colour shows how this judgement treated each authority
Revajeetu Builders & Developers vs. Narayanaswamy & Sons and othersReferred¶25
Revajeetu Builders & Developers vs. Narayanaswamy & Sons and others, 2009 (10) SCC 84 · Who else cites this
2 provisions across 1 enactments
Sunil Kumar
Lal Chand
G.S. Sandhawalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
