Allowed

Jaswant Singh v. Amrik Singh

Punjab & Haryana HC4 May 2012CR/6186/2011

Case brief

AI extract

What is this about?

High Court allowed revision petition, setting aside Rent Controller’s order dismissing amendment. Later amendment to plead business expansion needs allowed to explain facts despite long delay, causing no irreparable prejudice.

What did the court decide?

Revision allowed; order dated 19.08.2011 set aside. Amendment taken on record. Tenant given liberty to file fresh written statement. Landlord to pay cost Rs. 7,500.

Jaswant Singh Vs Amrik Singh — Civil Procedure and Limitation | Punjab & Haryana HC (2012)

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CR No.6186 of 2011

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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CR No.6186 of 2011 (O & M) Date of decision:04.05.2012

Jaswant Singh

.....Petitioner

Versus

Amrik Singh

.....Respondent

CORAM : HON'BLE MR.JUSTICE G.S.SANDHAWALIA

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Present: Mr.Pankaj Jain, Advocate, for the petitioner,

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Mr.Satinder Khanna, Advocate, for the respondent.

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G.S.Sandhawalia J.

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The present revision petition has been filed against the order dated 19.08.2011 whereby an application for amendment under Order 6 Rule 17 CPC by the landlord has been dismissed on the ground that the case is at its final stage and if the amendment is allowed, it will re-open the whole case.

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The petitioner-landlord, Chet Singh, now represented through his grandson, Jaswant Singh, had filed a petition for the eviction of the tenant from shop No.5 forming part of the property B.XVIIII. 3792/1 on the ground of non-payment of rent and for personal use and occupation for running the business of footwear. It was alleged that the son of Chet Singh namely Major Singh had died about 13 years back leaving behind one son and daughter and Chet Singh had brought up his grand-children and they had grown-up and the grandson, Jaswant Singh was capable of helping the landlord and the landlord was not doing any work and he had no other immoveable property to run the business and for setting-up the business of his grandson, he required the premises.

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CR No.6186 of 2011

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During the pendency of the ejectment proceedings, the Rent Controller, Ludhiana passed an order whereby the landlord was allowed to give evidence in rebuttal by explaining the subsequent event that 2 shops had fallen vacant. The said order was set aside by this Court on 30.04.2009 on the ground that there were no pleadings to that effect. Thereafter, the application under Order 6 Rule 17 CPC was filed for amendment of ejectment petition.

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After the death of Chet Singh, Jaswant Singh, the grandson was impleaded as his legal representative and after the closure of evidence of the petitioner, 2 shops in possession of the tenants had been vacated by compromise and the subsequent events were known to the respondent. The respondent had brought these subsequent events in his evidence to prove that the said shops had been vacated and all these 6 shops and some part of the residential building were required by the petitioner, Jaswant Singh as per the proposed plan given by the Engineer, Pardeep Kumar Jain and the showroom could not be opened in the 2 shops and therefore, he intended to run the business of footwear which required a place bigger than the 2 shops. It was averred that this Court in Civil Revision No.1987 of 2008 has held that until appropriate pleadings were there, rebuttal evidence could not be permitted. Accordingly, it was prayed that the pleadings were to be amended to incorporate the fact that the business of showroom could not be done in the 2 vacated shops and the Engineer, Prardeep Kumar Jain was required to be examined after the amendment of the pleadings and no fresh ground was taken and the purpose of the amendment was to explain the pleadings and to prove the fact of bona fide requirement of the landlord.

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The said amendment was opposed by filing reply and it was

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CR No.6186 of 2011

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contended that Chet Singh, the original landlord never sought eviction of the said tenants and had sought eviction from one Shop No.5 and the amendment was in contradiction to each other and could not be allowed and the plea of demolition of 6 shops to construct the showroom was in contradiction to the original plea. It was accordingly, pleaded that the 2 shops which were vacated were lying abandoned and were not used by Jaswant Singh and even the electricity connection had been disconnected and a totally fresh ground was being made out.

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Keeping in view the said pleadings, the Rent Controller, Ludhiana dismissed the ejectment application on the ground that Chet Singh had not specifically mentioned that he wanted to open a showroom of footwear in the demised premises and other shops which he had given on rent. The applicant, Jaswant Singh was only impleaded as his legal representative to take the petition to its logical end and the applicant cannot take the plea afresh which were not taken by the original petitioner at the time of the filing of the application since the application was filed at the time of final arguments and it would re-open the whole case. It was also observed that the applicant-landlord was entitled to file a fresh petition for eviction and the amendment could not be allowed at that stage. Counsel for the petitioner has, however, contended that in rent proceedings, subsequent events can be taken into consideration and contended that the legal representative of Chet Singh, i.e., Jaswsant Singh, by way of filing the amendment application, was only giving better particulars and pleadings to substantiate his case for personal use and occupation of the premises in question, and therefore, the amendment should be allowed. He also placed reliance upon Joginder Singh & others Vs. Narinder Kaur & others 2006

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CR No.6186 of 2011

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(3) Civil Court Cases 355 to contend that the legal heirs had the same right to seek amendment and therefore, the application to seek amendment cannot be denied to the legal representatives. On the contrary, counsel for the respondent has submitted that the amendment is not permissible and the order of the Rent Controller was justified that fresh ejectment application could be filed by the landlord and by allowing the said amendment, the proceedings would start afresh. Counsel for the respondent has also submitted that an appeal can also be filed before the Appellate Authority against the order in view of the judgment of Hon'ble Apex Court in Harjit Singh Uppal Vs. Anup Bansal 2011 (3) PLR 520 .

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In the present case, the facts have already been discussed in detail above. The initial application was filed on 20.01.1997 by the grandfather of the present petitioner, Chet Singh, for the purpose of running a business of footwear and to settle his grandson, Jaswant Singh since his son Major Singh had died and various events have taken place and as noticed, two more shops had fallen vacant during the pendency of the ejectment application. Chet Singh had died and therefore, it is the grandson, Jaswant Singh who had been impleaded as legal representative who is now wanting to bring on record that the business of opening a showroom of footwear is to be done in the premises in question along with the premises which had fallen vacant. The said amendment is to explain and clarify the position and also incorporate the subsequent events that have taken place. The general principle provides that amendment can be allowed until the facts which are sought to be brought on record could not be brought on record earlier despite exercise of due diligence and in the present case, it is not instituting a new cause of action which would raise any objection. The

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CR No.6186 of 2011

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Hon'ble Apex Court in Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & others 2010 (1) Civil Court Cases 1 has laid

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down the following principles which have been taken into consideration at the time of allowing the amendment:

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(1)Whether the amendment sought is imperative for proper and effective adjudication of the case?

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(2)Whether the application for amendment is bona fide or mala fide?

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(3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4)Refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And

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(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?

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In the present case, it cannot be held that the amendment application is mala fide that can cause any prejudice which cannot be compensated in terms of money and would lead to injustice and fundamentally change the nature of the case. The delay, if any, which may occur, is only going to cause prejudice to the landlord. Same view has been followed in the case of Sushil Kumar Jain Vs. Manoj Kumar & others 2010 (1) Civil Court Cases 446 which pertain to proceedings under the Rent Act and where the Rent Controller had rejected the amendment of written statement filed by the tenant. In Jai Parkash Gupta (dead) through LRs Vs. Riyaz Ahmad & another 2009 (10) SCC 197 the Hon'ble Apex Court in rent proceedings has categorically held that subsequent events have to be taken into consideration especially in cases where there is long delay.

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CR No.6186 of 2011

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Paragraphs No.20 & 31 of the judgment reads as under:

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“20. It is true that a suit or an original proceeding is to be tried in all its stages on the cause of action as it existed on the date of its commencement. The only exception to this rule is that a Court may take notice of events, which have happened since the institution of the suit or the original proceeding and grant relief to the parties on the basis of the altered conditions, (sic which) is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. (See Rai Chand Mandal Vs. Biswanath Mandal, AIR p.104). This was the view expressed by Sir Ashutosh Mookerjee, J. (as His Lordship then was) on this question when subsequent developments should be taken into consideration by the Court during the pendency of a proceeding or of a suit or even at the appellate stage.

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31. Therefore, we are of the view that the High Court was fully justified in setting aside the order of the Appellate Court in view of the fact that all the facts stated herein need to be gone into after taking evidence on such facts. The effect of the subsequent developments on the bona fide need of the present landlord as well as the comparative hardship of the parties on material facts could not be taken into consideration by the writ court without proper evidence on record. However, considering the age of the litigation i.e. fifteen years and if the matter is sent back to the appellate court, the proceeding may continue for another fifteen years, we are of the view that the High Court was not justified in sending the case back to the appellate court for fresh decision in the light of the subsequent developments as noted hereinabove.”

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Accordingly, keeping in view that the ejectment application was initially filed for the purpose of opening the business of footwear by Chet Singh and by way of amendment, the said purpose is only sought to be

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CR No.6186 of 2011

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elaborated and the tenant will not be prejudiced in any manner if the said amendment is allowed and can be duly compensated by way of costs, the present revision petition is liable to be allowed and the order dated 19.08.2011 is liable to be set aside.

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The submission of the counsel for the respondent for the respondent that an appeal could be filed before the Appellate Authority in view of the judgment of Hon'ble Apex Court in Harjit Singh Uppal's case (supra) is not liable to be accepted. The issue in Harjit Singh Uppal's case (supra) was where the Rent Controller had determined the provisional rent and the tenant had filed subsequent applications alleging that certain amounts had not been taken into consideration whereby rent had been paid by way of cheque. The said applications were rejected by the Rent Controller and the order of eviction was passed on the ground that the provisional rent had not been paid. In appeal, the Appellate Authority had set aside both the orders of provisional rent and the final ejectment order which was approved by the Hon'ble Apex Court by taking into consideration the fact that there was no specific provision under Section 15 (1) (b) that if a party was aggrieved by an interlocutory order and did not challenge the order in appeal immediately and waited for its final outcome, in appeal, he could not challenge the correctness of the interlocutory order. It was, accordingly, held that there was no specific bar under Section 15 (1) (b) that the provisional rent could not be challenged. The Full Bench of this Court wayback in M/s Daya Chand Hardayal Singh Commission Agents 1983 PLR 775 while analyzing the provisions of both the Rent Acts pertaining to the State of Haryana & Punjab has held that in view of the notification dated 08.05.1978, only orders passed by the Rent Controller

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CR No.6186 of 2011

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under Section 4, 10, 12 & 13 of the Act alone are appealable. The said view has been consistently followed by this Court and thus, there is no occasion to differ with the binding precedent settled by the Full Bench of this Court. 11. Accordingly, the revision petition is allowed subject to cost of ` 7500/- which shall be paid by the landlord to the tenant on the next date of hearing before the Rent Controller, Ludhiana. The order dated 19.08.2011 is set aside. The amendment proposed by the petitioner-landlord is directed to be taken on record and the respondent-tenant is given liberty to file a fresh written statement. The Rent Controller, Ludhiana shall proceed further in accordance with law.

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Accordingly, the revision petition stands disposed of.

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(G.S.Sandhawalia) JUDGE

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04.05.2012 sailesh

Jaswant Singh v. Amrik Singh

Case brief

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Jaswant Singh v. Amrik Singh

Case brief

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