Decided on March 23,1995


Cited Judgements :-



D.K.Jain, J. - (1.)THIS is defendant No.7's appeal under Section 10 of the Delhi High Court Act, 1966, against the order of the learned Single Judge dated 6 May 1994, dismissing her application under Order 6 Rule 17 Civil Procedure Code for amendment of written statement filed on her behalf on 15 November 1988 in Suit No.662/1988.
(2.)THE learned Single Judge, in the impugned order, in brief, narrated the progress in the suit proceedings from the beginning till the filing of the application for amendment and observed that it was manifest therefrom that the application was moved after five years of the institution of the suit and after the conclusion of arguments by counsel for the contesting parties and after filing of written arguments by the plaintiff and defendant No.7. THE Court thus, felt that the application for amendment was highly belated and had been moved with a view to delaying the disposal of the case. THE application for amendment was thus dismissed in limine. THE dismissal of the application has been assailed in the grounds of appeal on the ground that there was no limitation provided for filing application for amendment of the pleadings; the scope of Order 6 Rule 17 Civil Procedure Code was very wide, the application could be moved at any time, the order of the learned Single Judge is contrary to law and he has failed to apply his mind while dismissing the application. To appreciate the controversy involved, it would be necessary and appropriate to notice in brief the relevant facts and circumstances leading to the filing of the application dismissed by the impugned order. It appears that R.S. Ram Parshad was the owner of building "Kashi House" at Connaught Place, New Delhi, which had shop No.A-3 on the ground floor. THE said owner let out the said shop to one Mrs. F. Lawrence Enid vide lease deed dated 15 September 1936 for running a dress maker's shop and she did that business. THE rent continued to be increased from time to time. After the expiry of the period of lease, the lessee became a statutory tenant under THE Delhi and Ajmer Rent Control Act,1952. THEre was a partition in the family of the owner and the premises in question fell to the share of Rajeshwar Nath Gupta, the plaintiff in the suit, who, in 1971, served notice on the tenant Mrs. Lawrence Enid, asking her to vacate. Mrs. Enid died on 23 March 1988, according to the plaintiff, leaving no next of kin and her assets going to the State by escheat. THE plaintiff/landlord filed a suit for permanent injunction, impleading the Administrator General, appointed under the Administrator Generals Act, 1963, as defendant No.1 (averring that deceased's stock-in-trade lying in the shop had vested in him) and defendants No.2 to 6, on the plea that they were trying to trespass on the premises. An application for interim stay was filed on which an ex parte interim stay was issued restraining defendants No.2 to 6 from entering the premises in question. After service of stay order, defendants No.2 to 6 applied for vacation of the stay on the plea that defendants No. 4 and 5 were in lawful possession of the premises since 1982 as partners of the deceased tenant Mrs. Enid and so was defendant No.2, who had now entered into a partnership with defendants No. 4 and 5. THE Local Commissioner appointed to visit and report about possession and stocks reported in favour of the said defendants, on which the interim stay was vacated. Defendants No.3 and 6 were given up by the plaintiff. Defendants No.4 and 5 claimed to be the partners of the deceased tenant under partnership deed dated 29 July 1982, in occupation as such and defendant No.2 claimed tenancy rights in the premises on the basis of a registered will dated 8 June 1983 executed by Mrs. Lawrence Enid, the deceased tenant bequeathing tenancy rights in his favour. On 20 April 1988 counsel for the parties made statements; for the plaintiff it was stated that for the purpose of the suit, the plaintiff did not dispute the execution of the will by Mrs. Enid in favour of defendant No.2 nor did he dispute the execution of the partnership deed dated 29 July 1982 by which defendants No.4 and 5 had been taken as partners by the deceased tenant; and for the contesting defendants it was stated that they did not dispute the ownership of the plaintiff. Meanwhile, an application under Order 1 Rule 10 Civil Procedure Code (IA 4878/88) was filed by Mrs. Evelyn J. Disney, the appellant herein, wherein she claimed that she being the real sister of the deceased tenant, inherited the tenancy which vested in her, she was a necessary party and be impleaded. By order dated 7 September 1988, P.K.Bahri, J. allowed the application and the appellant was impleaded as defendant No.7. She filed a written statement claiming tenancy by inheritance and also supported the aforesaid claims of defendants No.2, 4 and 5 and the pleas raised by them, in their written statement. THE claims and pleas of the now contesting defendants 2,4, 5 and 7 were countered on diverse grounds by the plaintiff, in his replications, as reflected in the issues. On the pleadings of the parties, the following issues were framed on 20 September 1989:
"1. Whether Mrs. Evelyn J. Disney (defendant No.7) was the sister of Mrs. Lawrence Enid? OPD -7. 2. If issue No.1 is proved whether defendant No.7 was not entitled to inherit the tenancy rights of the shop in dispute from her sister on the ground that defendant No.7 was a foreign national staying in USA for more than 30 years and had, therefore, lost her right to inherit the tenancy rights under the provisions of Section 2 (1)(iii) of the Delhi Rent Control Act? OPP 3. Whether the tenancy rights could not be subject matter of bequeath by Mrs. Lawrence Enid in favour of defendant No.2 a stranger? OPP. 4. Whether the defendant No.2, a legatee (stranger) under the will dated 8.7.86 executed by Mrs. Enid could not seek protection under the Delhi Rent Control Act and, therefore, jurisdiction of the Civil Court to try this suit was not barred? OPP 5. Whether the jurisdiction of civil court to try this suit for recovery of possession was not barred under Section 50 of the Delhi Rent Control Act on the ground that defendant No.7 being a foreign national and staying outside India could not claim protection under the Delhi Rent Control Act? OPP. 6. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 7. Whether defendant No.1 was a necessary /proper party? If not, its effect? OPP. 8. Whether the tenancy of Mrs.Enid had been terminated during her life time with respect to the said premises? If so, its effect? OPP. 9. Relief."
During trial, the plaintiff's son appeared as PW1 and the plaintiff closed his case on 12 November 1990. Execution of the will by the deceased tenant in his favour having been admitted by the plaintiff, without examining any witness, defendant No.2 also closed his case on that date. On 12 December 1990 the plaintiff, for the purposes of the suit, to cut short the evidence, admitted defendant No.7 as the full blood sister of deceased Mrs. Enid. Two affidavits were filed from the side of defendant No.7, a citizen of U.S.A., being exhibited as D/A of the said defendant and D/B of her son, both affirming two visits to India by defendant No.7, one in 1978 and the other in the company of her son in 1979. THEse affidavits were taken on record. From the side of the plaintiff it was submitted that defendant No.2, his wife, defendant No.4 and his brother defendant No.5 and their close relation Prashant Aggarwal, attorney of defendant No.7 and the present appellant be directed to tender themselves for cross-examination. THE Court in its order dated 21 March 1991 observed that there must be somebody in the witness box on oath, to whom the case of the plaintiff could be put and failing that, an adverse inference be ordered to be drawn. None of them appeared in the witness box and on 2 May 1991, defendants No.4, 5 and 7 closed their evidence. THE three sets of contesting defendants, viz., defendant No.2, who claims tenancy rights on the basis of a will; defendants No.4 and 5, who claim such rights on the basis of a partnership with the deceased tenant and defendant No.7, who claims tenancy rights on the basis of inheritance, being the real sister of the deceased tenant Mrs. Lawrence Enid, after arguments in the main case and after filing of the written submissions, filed three applications under Order 6 Rule 17 Civil Procedure Code for amendment of their respective written statements, being IA Nos.9620/93 by defendant No.2, IA No. 9360/93 by defendants 4 and 5 and IA 10108/93 by defendant No.7. THE first two applications were filed on 26 October 1993 and the last one on 12 November 1993. THEy all sought amendment of their written statements, seeking to raise, it seems in unison, virtually similar pleas by way of additional preliminary objections, viz., that the order dated 7 September 1988 of P.K.Bahri, J, directing defendant No.7 to be made a party for the reasons stated, having not been appealed against, had become final and was res judicata; the suit was barred by time; the civil Court's jurisdiction was barred under Section 50 of the Delhi Rent Control Act,1958; the plaintiff's remedy lay in moving an application under Section 14 of the said Act; the eviction notice allegedly served on the deceased tenant was illegal, lacked details and was invalid; defendant No.2 had become tenant on the basis of will made by the deceased in his favour, and as if by way of corollary, and to serve as motive for the will, defendant No.2 also claimed of his being treated by the deceased as her son, adopted as such in a function and thus an heir also of the deceased. THEy all claimed that the suit was liable to be dismissed. All these applications were dismissed by the learned Single Judge by a common order dated 6 May 1994. No appeal has been filed by defendant No.2 against the said order. As aforenoted, only the appeal filed by defendant No.7 is before us. We have heard learned counsel for the parties and have gone through the record. We agree with learned counsel for the appellant that mere delay in filing an application for amendment of the pleadings is per se no ground to dismiss it. It is a trite proposition of law, culled out from various pronouncements, that bonafide amendments vital for adjudication of the real question in controversy between the parties should be allowed, howsoever negligent the first omission and howsoever delayed the proposed amendment, if the opposite party can be compensated with costs or other terms to be imposed in the order. Conversely, amendment should be refused where it is not necessary for the purpose of determining the real question in controversy between the parties; is merely technical or useless or of no substance or where the plaintiff's suit will be wholly displaced or it would take away the legal right which has accrued to the defendant by lapse of time or it would introduce a totally new and inconsistent case; and the application is made at a late stage of the proceedings or the application for amendment is not made in good faith. We are sure that the learned Single Judge was alive to this elementary proposition of law. THE real ground for dismissal of the application is epitomized in his following sentence that the application has been filed "to delay the disposal of the case", indicating that the learned Judge considered the application to be mala fide and the proposed amendments unnecessary, though not saying in so many words. After examining the record of the case, we feel that there was basis for the learned Single Judge to feel so while dismissing the application. THE facts and circumstances narrated above sufficiently indicate that defendants No.2; 4 and 5 were not confident of the merits of their case and applied for amendment of their written statements, earlier in point of time but relied more heavily on the application for amendment to be filed by defendant No.7. Appellant/defendant No.7, claiming tenancy by way of inheritance as sister of the deceased tenant is a foreign national and the plea against her in the replication, subject matter of issue No.2, is that being a foreign national staying in U.S.A. for more than 30 years she had lost her right to inherit the tenancy rights under the provisions of Section 2(l)(iii) of the Delhi rent Control Act. Probably to get over this difficulty reliance is sought to be placed on some observations made by Bahri, J in his order dated 7 September 1988 (disposing of her application u/O 1 Rule 10 CPC), directing the plaintiff to implead her as a party. We feel that any observations made in the order dated 7 September 1988 cannot be said to be final and these were obviously made for the purpose of disposal of the said application only. THE proposed amendment in this behalf is useless and of no substance. On the proposed plea of the jurisdiction of civil Court to hear the matter (taken in para 6(12) of the application) being barred under Section 50 of the Delhi Rent Control Act, despite defendant No.7 being a foreigner, issue No.5 is already there. THE complimentary plea in para 6(9) of the application that despite this situation she could not be deprived inheritance on this score is a legal one which could be urged in defence. Plaintiff's right to file the suit was not disputed by defendants No.2,4 & 5 in the pleadings but mildly by defendant No.7 in her written statement. THE plea being already there on her behalf, the amendment, now proposed, assailing the locus standi of the plaintiff, we feel, is unnecessary. THE other objection proposed to be entertained as preliminary objection is that the plaintiff's claim is barred by time. This is a legal issue on which arguments, if deemed necessary, could and might have been addressed. Another proposed plea is that this Court being a Civil Court has no pecuniary jurisdiction as value is less than Rs. 6,000.00 on a yearly rent for possession and the separate jurisdiction value for relief of injunction has to be much lesser than the yearly rent; the plaint has to be returned or rejected under Order 7 Rule 11 CPC. THE value of the suit for the purpose of Court Fee and jurisdiction having been already challenged, on which issue No.6 having been framed, the proposed amendment is again unnecessary. Further objection now proposed to be added as additional preliminary objection is regarding the illegality of the notice terminating the tenancy of the deceased tenant. Issue No.8 already exists on this aspect. Defendant No.2 in his application for amendment dated 26 October 1993 referred to all these objections and sought permission to add these pleas as preliminary objections. Subsequently by application dated 12 November 1993 filed on behalf of defendant No.7, the present appellant, amendments on these very lines have been sought for. As already observed, all these amendments and the application seeking amendment not being bona fide, we feel that the learned Single Judge was right in holding that the application has been filed only to delay the disposal of the case and thus dismissed it. Having regard to the facts and circumstances of the case, we do not find any ground to interfere with the impugned order. THEre is no merit in the appeal and the same is accordingly dismissed with costs, which we quantify at Rs. 5,000.00 .

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