Ambica Parshad vs Devi Mandir, Karnal

This revision petition u/s. 15(5) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ''the Act'') is directed against the order dt. 4th Mar., 1985, of the learned Senior Sub-Judge, Karnal, disallowing the application of the present petitioners Ambica Parshad for amendment of the Written Statement filed by him. It has been moved in the following circumstances.

Devi Mandir, Karnal, filed an application u/s. 13 of the Act for the ejectment of the present petitioners Ambica Parshad from the demised premises on various grounds. Ambica Parshad contested the petition and filed a Written Statement controverting the pleas taken by the landlord. Thereafter, the issues were framed. I am, however, informed that evidence has not been recorded in the eviction application as yet. The petitioners filed an application seeking various amendments in the Written Statement. The landlord had serious objection to the following three paras in the Written Statement that were sought to be substituted. Along with these paras, the paras sought to be substituted are juxtaposed below:--

Existing averments As proposed

PRELIMINARY OBJECTIONS:

That the considerations apart and merits aside, it is sumitted that the open plot was taken on rent from Mansa Devi Mandir, Karnal through Shri Ram Chander, father of Sat Pal, applicant, on 7-11-1945 and a writing to this effect was executed by Shri Sham Lal, petition-writer, Karnal entered in his register at Serial No. 1021 and payment of rent from 1-11-1945 to 31-10-1946 is also entered in his register at Serial No. 1922 dt. 7-11-1945. Rent Act was not applicable in Punjab at that time. It was also agreed and stipulated in the agreement/Rent Note that the Respondent would construct Kothas on the suit land for purposes of Ara Machine and for selling fire timber woods i.e., for running a Tal. It was also agreed that the Respondent had to lift the Malba of the Kothas as and when the possession was to be restored to the owner/landlord. The Kothas now present at the spot were constructed somewhere in the year 1946. The Are Machine was installed with the consent of the father of Sat Pal through whom the present application has been filed in the year 1955 and since then the Ara and the Kothas are there on the plot in dispute. Ram Chander, previous Muntim of the property of Devi Mandir has since died and his sons namely Pawan Kumar, Jai Parkash and Sat Pal are receiving rent from different tenants claiming themselves to be landlords. Sometimes, Pawan Kumar receives the rent and some time Jai Parkash. Lastly, Sat Pal, applicant came to the Respondent and demanded rent without receipt and the Respondent showed his inability to do so and hence this false petition has been filed. The Kothas do require repairs as they are old ones and the Respondent has every right to get them repaired as they were constructed by him and as per the agreement, he can get them repaired any time he likes. The original rent note is with the applicant and he should produce the same in the Court. That the respondent took the premises in question in the form of vacant land on rent from Mansa Devi Mandir, Karnal vide Rent Note dt. 7-11-1945 at the rate of Rs. 10/- per moth, the rent note to that effect was duly executed and registered. The rate of rent was later on enhanced to Rs. 15/- p.m. the demised premises was let out to the respondent for the purpose of Karobar. Since then the respondent has been running business of Wooden Tal and Saw Mills in the demised premises. However, the respondent is at liberty to run any business in the demised premises as per terms and conditions of Rent Note. The respondent has also been authorised to raise construction over the demised premises to his satisfaction as per terms of rent note and therefore he constructed the rooms and one shed for the running of wooden tal and saw mills after the execution of the Rent Note.

ON MERITS:

4(ii). That this para is incorrect, false and frivolous. The site in dispute was taken on rent by the Respondent for Tal as well as for Ara Machine. In fact, Tal includes the Ara Machine. Taking the consent of the present petitioners, Sat Pal does not arise as he was not able to give his consent in the year 1955 when his father was alive. Moreover, it is denied emphatically that Sat Pal is a competent person to file the present petitioners on behalf of Devi Mandir. 4(iv) That para No. (iv) of the petition is wrong. In fact, the property in dispute is not a building. It is a Tal and three Kothas are now present on the spot which were built by the Respondent himself and they do require repairs. The Respondent is entitled to get them repaired as he likes. That Para No. 4(ii) of the petition is wrong and hence denied. The disputed property was let out to respondent on rent at the rate of Rs. 10/- per month for the purpose of Karobar vide registered Rent Note. Later on, rate of rent was enhanced to Rs. 15/- per month. However, respondent has been running business of Wooden Tal and Saw Mills in the demised premises. Respondent has not changed the user of the demised premises in any manner. He has been running the business of wooden tal and Saw Mills, from the very inception. It is to mention here that the demised premises was let out for Karobar i.e., business purposes and not for some specific business; so it cannot be stated that respondent has changed the user of property in dispute by any stretch of imagination.

That para No. (iv) of the petition is wrong. In fact, the property in dispute is not a building. It is a Tal and three Kothas are now present on the spot which were built by the Respondent himself and they do require repairs. The Respondent is entitled to get them repaired as he likes. It is wrong to allege that property in dispute has fallen in the rainy season; so the building is unfit for human habitation and is in dilapidated condition. No part of the demised premises is in dilapidated condition nor it can be termed as such by mere stretch of imagination as only vacant land was let out to the respondent on rent vide registered rent note and later on, he raised construction over the disputed land, so even in case it is proved that any portion of the building over the demised property is not in good conditions, a fact disputed and denied then too respondent cannot be ejected from the demised premises as demised premises is vacant land which has been let out for Karobar and respondent has been running wooden tal in the demised premises. Thus, the demised premises can not be termed as building by any stretch of imagination nor it can be stated to be unfit for human habitation by any stretch of imagination. Thus, the petitioners cannot seek ejectment of the respondent on this ground.

This application was resisted by the landlord. It was averred in its reply that the amendment was intended to fill up the lacunae. The respondent wants to make up a new case and wants to introduce different cause of action. The amendment sought will completely change the nature of the case and it will work injustice to the landlord. The application was filed at a very belated stage and in inconsistent case not be allowed to be set up. After perusing the record and hearing the learned counsel for the parties, the learned Rent Controller came to the conclusion that by the proposed amendment the respondent wanted to plead that the premises were let out to him for the purpose of ''Karobar'' and that the respondent was at liberty to carry on any business. No part of the premises was in a dilapidated condition. Only vacant land was rented out to the respondent. Even if any part of the demised premises was not in good condition, the respondent could not be ejected therefrom. He held that the tenant wanted to completely change the Written Statement by introducing new facts. The tenant wanted to completely change its stand on the issue of purpose for which the demised premises were taken on rent and the condition of the demised premise. He could not be permitted to change his defence by introducing a new case. The Court further observed that it was not the case of the applicant-tenant that due to inadvertance of the counsel, certain pleas could not be taken. It was also not a case where the applicant may have alleged certain facts in the Written Statement by inadvertence or under some mistake.

Shri R. S. Cheema, Advocate, learned counsel for the petitioners, has contended that the petitioners has taken vacant land on rent from Mansa Devi Mandir, Karnal, through Shri Ram Chander, father of Shri Sat Pal, applicant @Rs. 10/- p. m. and a rent note was duly executed and registered on 7th Nov., 1945. The rent was later enhanced to Rs. 15/- p. m. It was agreed and stipulated in the rent note that the tenant could construct Kothas on the suit land for his ''Karobar''. Shri Ram Chander had since died. The original rent note was with the landlord. The Written Statement was drafted without perusing the rent note and mainly on the basis of the excerpts pertaining to the rent note obtained from the register of the petition-writer. These facts had been averred in the Written Statement. However, since the original note was not available at the time of preparing the Written Statement, the true factual position was not projected in the written Statement, filed by the present petitioners. It was not mentioned therein that the vacant land had been taken on lease for ''Karobar''. This omission had occured because of the non-availability of the rent note. He has shown me a certified copy of the rent note, registered on 7th Nov., 1945, as referred to in the Written Statement. It has been specifically mentioned therein that the vacant land belonging to the landlord was being leased out to the petitioners tenant for the purposes of his ''Karobar''. He was allowed to construct building thereon for his ''Karobar''. So, the petitioners should have been allowed to make the amendment and state the true facts. The proposed amendment did not comprehend any after thought. The petitioners wanted only to bring true facts to the notice of the Court so that justice could be done between the parties. The proposed amendment was based on uncontraverted and irrefutable facts contained a document which was about 40 year old and had been duly registered. There was no suspicion about its genuineness. He further contended that the rules of procedure have been devised to advance the cause of justice and not to defeat the same. Even if it be argued by the other side that the petitioners had made some sort of admissions, the same had been done in ignorance of true facts and under a mistake.

On the other hand, Shri Hemant Kumar Advocate, learned counsel for the respondent, has vigorously argued that the petitioners had taken definite stand in the Written Statement that the vacant land had been let out to him for the purposes of selling timber and for setting up a saw machine (Ara). The petitioners could not now be permitted to writhdraw from this admission. He should not be permitted to now plead that the vacant land had been rented out to him for the purpose of ''Karobar''. This will work injustice to the landlord. It will also be a plea wholly inconsistent with his previous stand. Similarly, the petitioners had previously pleaded that the Kothas built by him on the land in dispute required repairs. He now wants to wriggle out of this admission and wants to state that the premises are not in a dilapidated condition.

It is manifest from a perusal of the lease deed, which is registered document, that the rented land had been leased out to the petitioners for ''Karobar''. The petitioners constructed Kothas thereon. In the fitness of things, the lease deed was in possession of the landlord, and not with the petitioners, when the Written Statement was drafted. In the Written Statement, it is mentioned in para 2 under the Preliminary Objections,"It was also agreed and stipulated in the agreement/rent note that the respondent (the present petitioners) would construct Kothas on the suit land for purposes of Ara machine and for selling fire-wood, etc." It shows that the author of the Written Statement had an impression that the lease deed had a stipulation that the vacant land was being let out for setting up a saw machine and selling fire-wood. On that assumption the purpose of the lease deed was incorporated in the Written Statement. The lease deed, however, does not contain this assertion regarding the setting up of saw machine and for selling of fire wood. The plea was taken in ignorance of true facts as evidenced by the contents of the lease deed. In such a case, if the parties are not allowed to amend the pleadings and state true and correct facts it will result in grave injustice. For this reason, in suitable cases, a party can be permitted to withdraw an admission. The Final Court in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, has held that:--

"An admission made by a party may be withdrawn or may be explained away. Therefore it cannot be said that by amendment as admission of fact cannot be withdrawn."

In the case in hand, there is no clear or unequivocal admission. But if something has been incorrectly stated in ignorance of true facts, the petitioners can be allowed to place true and correct facts before the Court.

The decisions of the apex Court in Thiru John Vs. The Returning Officer and Others, and Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., relied upon by Shri Hemant Kumar, Advocate, are of no avail to the respondent. The observations therein were made in the peculiar facts of those cases. In Thiru John''s case, the appellant had made admissions and declarations of his age in twelve different documents like applications for admission to the Pre-University, B.A., B.G.L; II B.G.L. Examinations, as well as various other documents, inter alia applications for admission to the B.G.L. Courses in the Law College, for enrolment as an Advocate, and Voters'' Card. The admissions were precisely and deliberately made in solemn documents over a period of about 10 years. It was observed that the appellant had miserably failed to show that the admissions were correct. In this context he was not allowed permission to withdraw these admissions. But here, the copy of the lease-deed clearly establishes that the averments in para 4(ii) of the Written Statement are incorrect. In the second case, Modi Spinning & Weaving Mills Co. Ltd. (supra), no cogent reason was given by the defendant for seeking amendment of the written statement for withdrawing the admissions. Moreover, alternative plea had already been taken in the Written Statement and it was stated by the counsel for the plaintiffs that it was open to the defendants to apply for framing of the issues on these pleas. It was in these circumstances that the order directing amendment of the Written Statement withdrawing clear admissions was affirmed by the Final Court.

So far as amendment of sub-para (iv) of para 4 is concerned, there is no justification for the same. The petitioners wants to withdraw an admission in the sub-para that the Kothas do require repairs. It is not shown that this admission was made under some mistake.

The learned trial Judge has failed to exercise jurisdiction vested in him by disallowing the application for amendment of pleadings. The impugned order is not sustainable in law. In the result, the revision petition is allowed and the application by the petitioners for amendment of the Written Statement is partly allowed. The petitioners is allowed to substitute preliminary objection No. 2 and sub-para (ii) of para 4 with new paras as proposed in the application. There shall, however, be no order as to costs.

The parties, through counsel, are directed to appear before the learned trial Judge on 18-12-1985.

Order accordingly.