S.U. Khan, J. - (1.) LANDLORD -petitioner filed release application on the ground of bonafide need under section 21 of U.P. Act No. 13 of 1972 against tenant -respondent No. 2 Jamal Ahmad in the form of Rent Case No. 44 of 1992 on the file of Prescribed Authority, Kanpur Nagar. Property in dispute is a residential accommodation consisting of three rooms, veranda, kitchen angan, latrine and bathroom. Rent is Rs. 20/ - per month. Petitioner also pleaded that he along with his brother Abdul Hai was residing in a tenanted house which consisted of only one room. Tenant -respondent No. 2 filed written statement and pleaded that petitioner was only one of the co -landlords hence release application on his behalf was not maintainable. Landlord -petitioner thereafter in his affidavit stated that the house in dispute was initially purchased by his two brothers Mohd. Saeed and Abdul Hai, however in the partition among all the brothers the said house fell in the share of petitioner -applicant alone. The other brothers of petitioner i.e. Abdul Wahid, Mohd. Saeed, Abdul Hai and Abdul Hameed filed joint affidavit supporting the plea of partition taken by the petitioner. Petitioner also pleaded that after the partition the properties falling in the share of each of the brother had been entered against their respective names in the Nagarmaha Palika record and property in dispute had been entered only against the name of the petitioner. Copy of Nagarmaha Palika records supporting the said version was also filed. Prescribed Authority held that firstly petitioner was the sole landlord and secondly even if it was held that he was only one of the landlords, release application was maintainable in view of Full Bench Authority of this Court in Gopal Das v. A.D.J. : 1987 (13) ALR 275 (FB) In respect of bonafide need prescribed authority held that as petitioner was residing in a tenanted accommodation hence his need was bonafide. Prescribed Authority decided the question of bonafide need and comparative hardship in favour of landlord. Ultimately by judgment and order dated 26.8.1995 Prescribed Authority/A.C.M.M. VII, Kanpur Nagar allowed the release application. Landlord before the prescribed authority had pleaded that tenant had acquired a house in Defence Colony (C -534). Tenant pleaded that the said property was in the form of a plot containing only one Kothari meant for chowkidar.
(2.) AGAINST judgment and order passed by the prescribed authority allowing the release application tenant -respondent No. 2 filed Rent Appeal No. 166 of 1995. In the appeal tenant -respondent No. 2 filed an application seeking amendment in his written statement. The subsequent amendment sought in the original written statement was that as no deed of partition was engrossed on general stamp and as alleged oral gift was not legal hence petitioner did not acquire any title over the property in dispute. The only ground mentioned for not taking the pleas sought to be added through amendment in the original written statement was that the previous Advocate of the tenant did not fully protect his interest. If such a ground is permissible for seeking amendment then every amendment will have to be allowed. Seeking amendment in the pleadings has become the most patent device of delaying the proceedings. IVth A.D.J., Kanpur Nagar through judgment and order dated 16.9.1996 allowed the amendment application and permitted the parties to file additional evidence by way of affidavits. The said order is under challenge by the landlord -petitioner in this petition. The Appellate Court did not say anything in respect of delay in filing amendment application. The Appellate Court only said that landlord could be compensated by awarding the cost. Appellate Court further held that the amendment sought neither changed the nature of the defence nor amounted to withdrawal of any admission.
(3.) IN my opinion Appellate Court committed an error of law in allowing the amendment and failed to appreciate mat order of eviction had been passed against the tenant hence his only purpose was to delay the disposal of appeal. Firstly, in the initial written statement tenant had admitted that petitioner was co -landlord hence he could not withdraw the said objection. Secondly, the manner and mode of partition among landlords could not be questioned by the tenant. All other brothers of the landlord had given joint affidavit disclaiming any right in the property in dispute. In case tenant's plea that petitioner is not the landlord is accepted then tenant will become virtual owner as he will be having no landlord. It appears that tenant wants to thrust the landlordship upon other brothers of the petitioner who are not at all interested in the property in dispute. In this regard the following passage from the authority of Supreme Court in P.K. Gupta v. R. Nagdeo, : 1999 (36) ALR 185 is quite relevant: The enviable position to which the tenant of a shop building as ensconced himself as corollary to the judgment of the High Court (under appeal now) is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High Court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the judgment of the High Court remains in force the tenant stands elevated virtually to the status of own of the suit building. (Para 2);