Bhupinder Singh vs Janak Rani

J.K. Mehra, J.

(1) This is a petition under Article 227 praying for setting aside and quashing of the order passed by the Rent Control Tribunal, Delhi in appeal u/s 38 of the Rent Control Act on 18.5.1996. Vide that order, the Rent Control Tribunal had dismissed the appeal of the present petitioner disallowing his prayer for amendment of the written statement by withdrawing the admission already made on record. In this case, one Raj Nath Jasrai had let out the premises in his capacity as the owner thereof to the petitioner. According to the petitioner, the said property was sold by the said Raj Nath Jasrai in favor of the petitioner on 19.12.1991. This fact is admitted by the petitioner in para 3(b) of reply on merits in his written statement filed before the Additional Rent Controller. Later on when the matter was ripe for evidence, the petitioner moved the Additional Rent Controller for leave to amend the written statement whereby the said admission was sought to be withdrawn and in its place, the petitioner wanted to state in reply to para No.3(b) and add a Preliminary Objection No. 9 as under:

"PARANo. "PARA No. 3(b) is wrong and is denied. The respondent is not tenant under the petitioner. The petitioner is not the landlord, and the petitioner is not the owner of the property in suit vide alleged Sale Deed dated 14.12.91. The respondent never paid rent to the petitioner. The respondent never tendered the rent to the petitioner despite service of legal notice of demand dated 14.11.95 demanding arrears of rent through her Counsel Mrs. Inderjit Saroop, Advocate. The petitioner had illegally and fraudulently and in conspiracy with her son Shri Vijay Kapoor got the alleged sale deed executed and registered on 14.12.91 when the original owner Shri Rajnath Jas Rai died on 1st July, 1990 and power of attorney in favor of Shri Vijay Kapoor became inoperative and null and void having no right to execute Sale Deed on behalf of dead person but the petitioner has suppressed all these facts and committed perjury by using forged documents in the judicial proceeding. There is no allotment letter in respect of the suit property."

PRELIMINARY Objection No. 9

"THERE is no cause of action in the petition and the petition is liable to be dismissed under Order Vii Rule Ii, CPC as there is no relationship of landlord and tenant between the parties. The petitioner had fraudulently and by suppression of real facts from this Hon''ble Court alleged in para No. 14 of the petition that she purchased the property from Shri Raj Nath Jasrai and the respondent became tenant under the petitioner by operation of law whereas the petitioner had conspired with her son Shri Vijay Kapoor (General Power of Attorney of Shri Rajnath Jasrai) and got the alleged Sale Deed executed in his name in December, 1991 when the owner Shri Rajnath Jasrai died on 1st July, 1990 even before the execution of alleged Sale Deed."

(2) Mr. Saluja stated that this admission was through an oversight and on account of lack of petitioner''s knowledge about the details of the title of the respondent. It is also pointed out that there is another litigation pending between the parties and in that ease, the Additional Rent Controller had allowed such amendment allowing the applicant to withdraw the admission in the written statement. The main ground of attack on the impugned order by Mr. Saluja is that the person who executed the sale deed in favor of the respondent on behalf of the previous owner, had done so in his capacity as the Constituted Attorney of the owner and the said owner and the donor of the Power of Attorney had died on 1.7.1990 whereas the sale deed was executed on 19.12.1991 and, Therefore, the sale deed is without any authority and is null and void. In another petition between the parties, one Additional Rent Controller had allowed the amendment, but in the present case when similar application was moved before the Additional Rent Controller it was dismissed. S.Mr. Saluja has raised certain points under Sections 32 and 87 of the Registration Act to buttress his arguments that the deed registered is invalid and does not convey any title. The provisions are quoted below :

S. 32. Persons to present documents for registration.-Except in the cases mentioned in Sections 31, 88 and 89, every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office, -

(A)by some person executing or claiming under the same, or, in the case of a copy of a decree or order, claiming under the decree or order, or

(B)by the representative or asking of such person, or

(E)by the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in manner hereinafter mentioned.

(3) Nothing as done invalidated by defect in appointment or procedure- Nothing done in good faith pursuant to this Act or any Act hereby repealed, by any Registering Officer, shall be deemed invalid merely by reason of any defect in his appointment or procedure.

THE above provisions can be looked into while considering the merits of the case. This is, however, not the stage for that purpose.

(4) Mr. Saluja has further argued that the law permits a party to withdraw the admissions or explain the admissions. The parties have addressed lengthy arguments and have relied upon various rulings.

(5) The respondent has also referred to various judgments while opposing the present petition. I find that all these judgments are on merits of the weightage which should be attached to the documents on the basis whereof the respondent is claiming title to the property. Mrs. Saroop has referred to Seth Loon Karan Sethiya Vs. Ivan E. John and Others, , Harbans Singh v. Shanti Devi reported as 1977 Rlr 487, Board of Revenue, Madras, Referring Authority Vs. Annamalai and Co. (Pvt.) Ltd. and Another, , Shanti Sharma and Others Vs. Ved Prabha and Others, , Rakeshwar Narain v. Sarla Sarin reported as 1992 Rlr 18, Jagdish Chander Gulati Vs. Kanta Devi, and Laxmikant Revchand Bhojwani and Another Vs. Pratapsing Mohansingh Pardeshi Deceased through his Heirs and Legal Representatives, . All these judgments can be considered by the Trial Court on the question of merits while deciding the entitlement of the respondent to get an order of eviction. The main question that would arise in the present case is whether the Courts below have fallen into an error in disallowing the amendment on the sole ground that the petitioner, who is the respondent before the Trial Court, could withdraw or explain the admissions made by him in the written statement. Mr. Saluja has also relied upon Sekar Mudaliar and etc Vs. Shajathi Bi and Another, , which is an authority only on the question of registration of settlement deed. This also need not engage my attention at this stage, because I am not going to pronounce on the merits of the transfer of the property and it will be for the Trial Court to do that. In the case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, , the Hon''ble Supreme Court had approved the withdrawal of admission of fact. Hon''ble Supreme Court in that decision had relied upon another decision of the Supreme Court in the case of Ganesh Trading Co. Vs. Moji Ram, wherein the Supreme Court had laid down that procedural law is intended to facilitate and not to obstruct the Court of substantive justice. It may be clearly understood that the distinction has to be made between the amendment of the plaint and the amendment of the written statement. While in the case of written statement adding of a new ground of defense or substituting or altering the defense may not raise the same problem as altering, substituting a new cause of action. The Courts are, Therefore, little more liberal in allowing the amendment of the defense than of a plaint.

(6) As already noticed above, in the other proceedings between the same parties before another Additional Rent Controller such amendments have already been allowed. It will be, but fair, that in the present case also the written statement should be allowed to be amended. Neither side has raised any objection to the jurisdiction of this Court to entertain and decide the present petition. A reference be made to a decision of this Court in the case of Kewal Ram Mool Chand Anand and Others Vs. S.N. Kapoor and Others, , wherein the written statement likewise was allowed to be amended. In this connection a reference be also made to the law laid down by the Hon''ble Supreme Court in Chhotelal Pyarelal, The Partnership Firm and Others Vs. Shikarchand, , and Vineet Kumar Vs. Mangal Sain Wadhera, .

(7) In the light of the above discussion, this petition is allowed, orders of the Rent Control Tribunal as also of the Additional Rent Controller are set aside and the written statement is allowed to be amended as prayed. Let the amended written statement be filed within two weeks, if already not placed on record. Records of the Trial Court as well as of the first Appellate Court be sent back forthwith. In the circumstances of the case, the parties are left to bear their own costs.

(8) Parties are directed to appear before the Additional Rent Controller concerned on 19th December, 1996.