MADAN, J. - (1.) THIS revision petition arises out of order dated 7. 11. 1998 of the Additional Civil Judge (JD) Alwar whereby the petitioner (defendant)'s application under Order 6 Rule 17 CPC seeking amendment in written statement was declined.
(2.) THE respondent (plaintiff) filed a suit seeking eviction of the defendant from the rented premises on the grounds of :- (a) default in payment of rent & (b) sub-letting. THE description of the suit shop as given in para 1 of the plaint is exactly the same as described in the rent note dated 12. 7. 69 executed between the landlord and tenant. THE defendant in para 1 of written statement admitted that he had taken the suit shop with Verandah infront of it on rent and that he had executed the rent note dated 12. 7. 69. Admittedly there is no dispute as regards the rented shop. THE dispute appears to have been confined only to the question as regards the change allegedly made in nature of the rented premises by the plaintiff in the verandah in front of a stair case & `gali', which according to the defendant is a part of the rented premises but as per the plaintiff was not let out to the defendant. THE case of the plaintiff is that since it was not a part of the rented premises as described in the rent note dated 12. 7. 69 executed between the parties and hence he has every right to bring forth any change whatsoever at his discretion being the landlord. This fact has been vehemently disputed by the defendant on the ground that the verandah infront of the stair case is a part of the rented premises and during the pendency of the suit, the landlord (plaintiff) by taking law into his hands has constructed a brick' wall (Pardi) resulting in blocking the way to stairs and `gali' which was `shamlati' (commonly used) before the change allegedly made by the landlord. Shri Gopi Chand Garg learned counsel for the petitioner contended that the trial Court has misread and misconstrued the description of the rented premises by observing in the impugned order that by way of the amendment, the defendant had sought demolition of the aforesaid construction which had been allegedly raised by the plaintiff respondent during the pendency of eviction proceedings which cannot be permitted in the interest of justice since that would amount to the change in the nature of the suit which is for eviction of the tenant on the aforesaid grounds under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and on this ground alone, the defendant's application seeking amendment in written statement has been rejected by the trial Court. Shri Garg, however, while refuting the aforesaid finding recorded by the trial Court, has contended that the permission sought by way of aforesaid amendment would not in any manner result in change as regards the nature of the suit nor it would alter the cause of action of the plaintiff since the plaintiff had unauthorisedly carried out the aforesaid changes in the suit premises having a direct bearing on the tenancy. He relied upon the decisions in N. K. Jain vs. Kanhaiyalal (1), & Niyajuddin vs. Jugal Kishore The trial Court has further observed that the suit has been pending since 27. 5. 97 for defendant's evidence and several chances have been given to conclude the defendant's evidence and at this stage the application for amendment was moved before it resulting in delay of the proceedings. Shri D. D. Patodia learned counsel for the plaintiff respondent contended that in whatever manner the defendant seeks to amend the written statement as regards the dispute raised by him for the alleged construction made by the plaintiff during the pendency of the suit have already been pleaded by the defendant in his written statement by raising his objections and by way of the impugned amendment, the defendant in fact seeks to make counter claim and pray for mandatory injunction for demolition of the construction inasmuch as the construction which has been made over the premises by the plaintiff was already in existence though made prior to the filing of the written statement and hence the amendment is not necessary. He has further contended that the premises where the construction was allegedly made by the plaintiff was not at all let out to the defendant and, therefore, the alleged construction would neither alter nor affect the character of the proceedings which are under the Rent Control Law and cannot be allowed by way of the impugned amendment as it would result in miscarriage of justice. Shri Patodia also contended that for the prayer made in the amendment application the defendant had already moved an application under Section 12 of the Rent Control Act before the A. D. M. who had dismissed the same for non-prosecution, against which an appeal was preferred to the appellate authority which in turn allowed the appeal and remanded the matter for adjudication afresh in accordance with law, which is pending. I have heard the learned counsel for the parties and perused the copies of the plaint, written statement, rent note, application seeking amendment in written statement and its reply filed by the plaintiff etc. The defendant sought to add following paras to his written statement by way of amendment. *** ***
(3.) IN order to appreciate the matter in its true perspective, the ratio of decisions as referred to by Shri Garg are herein briefly stated. IN N. K. Jain's case (supra), the trial Court rejected application for amendment of written statement after considering merits of the case. This Court held that the trial court should not have gone into merits of case without allowing amendment application and accordingly the order of the trial Court was set aside in revision petition by observing that normally case should have been remanded but looking to the fact that eviction suit on ground of personal necessity is pending since more than five years amendment application was allowed in revision petition. IN Niyazuddin vs. Jugal Kishore (supra), the amendment in written statement was sought after closure of plaintiff's evidence. This Court observed that the amendment sought for was not such as to change nature of case nor otherwise barred under any statutory provision and therefore, the trial Court committed gross error in rejecting the same. Having examined the ratio of aforesaid decisions (supra) and keeping in view the principles of law laid down in the decisions cited by Shri Garg and the averments made in original written statement referred to above so also the nature and character of proceedings pending in civil suit for eviction under the Rent Control Law, but without expressing any final opinion on merits of case least it may prejudice rights of either of the parties to the case. I am of the considered view that interest of justice demands that out of the amendment sought for by the petitioner, the following paras 5 (ka) and 16 (ka) should be allowed to be added by way of amendment in written statement as that would neither prejudice the rights of parties in any way nor would it tantamount to any change as regards the nature and character of the eviction suit: The relief as regards the amendment other than allowed by this Court (quoted above) is declined for the reason that counter claim in a suit for eviction pending bet-ween the parties under the Rent Control Law should not be permitted since that would not only prolong litigation but would also alter nature of the suit for eviction. As regards relief sought for demolition of construction alleged to have been raised by the plaintiff (landlord), it cannot be permitted in eviction proceedings as the same can be sought by way filing a suit for mandatory injunction for which the petitioner has alternative remedy available to him by having recourse to the same in accordance with law. ;