Ujagar Singh, J. - (1.) PETITIONER filed an application for ejectment under Section 13 of the East Punjab Urban Rent Restriction Act against the Respondent on the ground that the Respondent after commencement of the Act had made certain addition in the premises in question without the written consent of the Petitioner. This ground was sought to be amended by an application under Order 6 Rule 17 of the Code of Civil Procedure. Now proposed ground is as under: 4(A) That the Respondent has after the commencement of the Rent Restriction Act without the written consent of the land -lord/owner has committed such acts viz. a construction of rooms by using mortars, cement, bricks, wood as well as the iron sheets and converted the Varandah and part of the rear court yard into rooms thereby causing obstruction to the air and light to the rooms and thus these acts of the Respondent have impaired materially the value and utility of the building as such construction are not permissible under the building Bye Laws which govern the building in question and can be enforced against this building in case of violation. Thus, the Respondent is liable to be evicted on the ground of making additions and alterations in the building in question consisting of tenanted premises, by materially impairing the value and utility of the building in question. The additions having been made a few months back, in the year 1986, this came to the notice of the Petitioner in 1986.
(2.) THIS application was contested by the Respondent. The Pent Controller has refused the amendment on the ground that there is no denial of the fact that the Petitioner in the original petition took the stand of the Respondent having made certain additions in the premises in question, without the written consent of the Petitioner. Thus, according to the Rent Controller there is nothing in the proposed application to suggest that the Petitioner wants to seek amendment due to certain circumstances which have arisen after the filing of the original petition. Keeping that in view the Rent Controller has taken the original petition as not maintainable on account of the Petitioner having not mentioned the essential ingredients of Section 13(2) (iii) of the said Act. The learned Counsel for the Petitioner argues that the material fact on which the ejectment was sought, was mentioned in the petition and the proposed amendment was only sought to clarify the facts already given He has further argued that this petition was filed on 24th of December 1986. The Respondent filed his written statement on 24th of March 1987 and issues were framed on that date itself. The case was adjourned for evidence on 30th of April 1987 when the amendment application was made. The counsel for the Respondent has argued that the original petition itself was not maintainable as there was no ground given in the petition itself to show that ejectment on any of the ground mentioned in the Act could be allowed.
(3.) I have looked into the arguments and I find that the case is at the initial stage and amendment if it had been allowed the case could have been disposed of by now. Reading of the application shows that facts have been mentioned and only requirement of the section that the facts go to cause impairment and utility of the building is not there, in any case, the amendment now sought is only clarification mentioning only the consequence of the facts arising out of additional construction said to have been made by the tenant in the shape of some rooms by using mortars, cement, bricks, wood as well as the iron sheets in the court yard of the premises and converting the Varandah into rooms thereby causing obstruction to the air and light to the rooms leading to materially impairing the value and utility of the building in question. The learned Counsel for the Respondent has cited the following judgments in support of his argument that the petition as originally framed was not maintainable and, therefore, no amendment can be allowed: In Banta Singh Ganga Singh and Ors. v. Smt. Harbhajan Kaur, (1974)76 PLR. 387 (F.B.), a Full Bench of this Court laid down that a suit for partial preemption is not competent and such a suit has to be dismissed and if it is dismissed on that ground a very valuable right accrues to the vendee -Defendant inasmuch as their right to retain that property becomes indefeasible and if that right is put in jeopardy by allowing amendment of the plaint a gross injustice is done to them which cannot be compensated by the award of costs. It was further held that infact after the dismissal of the suit, the amendment should not have been allowed in view of the conduct of the Plaintiff in that case. In that case, the application for amendment was made in the first appellate Court. In pre emption law the provisions have to be strictly construed against the pre -emptor. In Mrs. K. Atma Ram and Anr. v. Kanwar Mohinder Singh, (1976) 78 P.L.R. 410, cited by the learned Counsel for the Respondent in support of his argument, it was laid down that unauthorised construction of a thatched hutment set up in contravention of the Capital of Punjab (Development and Regulation) Act 1952 and the Rules framed thereunder cannot alone be deemed to give rise to an inference that the value and utility of the main building had been impaired There is no dispute with this proposition. As a matter of fact in the present case, the present amendment is sought only to avoid any argument on the basis of absence of specific pleading. In the case cited no such amendment was sought. Another case, relied upon by the learned Counsel for the Respondent is Palthur Honour Saheb v. Bopanna Annopurname, A.I.R. 1986 Kara. 109, which was a suit under Section 16 of the Specific Act 19(sic)3 and therein the provision requires the Plaintiff to aver and prove his readiness and willingness to perform his contract in the plaint and mere mentioning of various circumstances showing readiness and willingness was not sufficient. The rule of pleadings in suits for specific performance is very strict. In that authority, the case Ouseph Varghese v. Joseph Aley : (1969) 2 S.C.C. 539, was referred. In that case, after the filing of the written -statement the Plaintiff did not amend his plaint and pray for any relief on the basis of the agreement pleaded by the Defendant. He did not also inform the Court that he was ready and willing to accept the agreement pleaded by the Defendant or that he was willing to perform his part of the agreement. Trial Court decreed the suit. In appeal the High Court did not accept the agreement pleaded by the Defendant but granted a decree directing the Defendant to execute a sale deed in favour of the plain till. The apex Court held that the Plaintiff must further plead that be has been and is still ready and willing to specifically perform his part of the agreement and neither in the plaint nor at any subsequent stage of the suit the Plaintiff has taken those pleas. This case also relates to specific performance and therefore, not material for the purpose of this revision. In case S. Kumar v. The Institute of Constitutional and Parliamentary Studies : A.I.R. 1984 S.C. 59, it was held that in an appeal by special leave the Appellant could not be permitted to amend the plaint seeking to include the relief against the order of dismissal. Yet another case Smt. Saroj Rani v. Sudarshan Kumar Chadha : A.I.R. 1984 S.C. 1562, has been cited and therein on a petition filed by the wife the husband pleaded that he was willing to take the wife back and a decree on that basis was passed. The matter went to that Court and an amendment of pleadings was sought before that Court. The facts were that the decree for restitution of conjugal rights by consent was passed and there was no cohabitation for one year and ultimately a petition was filed by the husband for divorce. Wife pleaded that there was cohabitation but this was rejected. Amendment of the pleadings was sought to show that the husband got the consent decree with unterior motive and the apex court held that it cannot allowed. The facts in this case again are different.;