Dilip Baid H.U.F. vs M/s. City Limozines (India) Ltd.

Alok Sharma, J.—This petition under Article 227 of the Constitution of India has been filed against the order dated 16.01.2013, passed by the Rent Tribunal, Jaipur Metropolitan City, Jaipur dismissing an application under Order 6 Rule 17 CPC filed by the petitioner-landlord. The facts of the case are that the petitioner-landlord (hereinafter ''the landlord'') filed an application for recovery of possession of leased property against the respondent-tenant - M/s. City Limozines (India) Ltd. (hereinafter ''the tenant''). A prayer was also made in the application for mesne profit. The case of the landlord before the Rent Tribunal was that a commercial tenancy commenced on the basis of a lease-deed executed by the landlord in favour of the tenant effective 17.08.2007 @ Rs. 87,000/ per month. The currency of the lease-deed was for a period of three years ending on 17.08.2010. It was stated that however commencing August, 2009, the tenant locked the leased property and moved away without any forwarding address but held possession of the leased property. Stating that the period of the leased-deed had since expired, the landlord claimed a sum of Rs. 8,56,654/- as rent due after having adjusted the advances made over to the landlord at the time of execution of the lease-deed. It was submitted that because the period of the lease-deed had expired and the landlord required the leased property for his own use as an office, he was entitled to an order of possession of the leased property. It was submitted that notice for handing back of possession of the leased property was issued to the tenant by way of registered post on 20.01.2011 and the same was received by the tenant. But in spite of receipt of notice by the tenant and the expiry of period of the lease-deed, possession of the leased property was not being returned to the landlord. In the grounds in support of the petition for possession of leased property before the Rent Tribunal, it was submitted that the period of lease-deed having expired and the lease-deed having come to an end with the efflux of time, the landlord was entitled to possession of the leased property. It was further submitted that the whereabouts of the tenant was not known and huge rent of the leased property were due against the tenant which may be directed to be paid to the landlord.

In spite of notice of the petition being served, the tenant appears to have remained unrepresented before the Rent Tribunal. Consequently proceedings were taken ex-parte against him. The matter was thereafter ripe for final arguments.

At this stage, the landlord moved an application under Order 6 Rule 17 CPC stating therein that the amendments to the petition for recovery of possession of leased-property be allowed. It was submitted in para 8 of the petition reference to Section 106 of the Transfer of Property Act, 1882 (hereinafter ''the Act of 1882'') had been erroneously made owing to a typing mistake and therefore such reference be allowed to be deleted and instead thereof the landlord be allowed to substitute Sections 9(a) and 9(k) of the Rent Control Act, 2001 (hereinafter ''the Act of 2001'') as the ground for eviction. It was further submitted that in para 10 under ground 1 in line 2 after the words (locking of the premises) the words be added. It was further prayed that in para 10 of the petition for possession of the leased property following the expiry of the period of lease-deed after the words (left) the words be added. The reasons for amendment sought were given out as words having been left out owing to inadvertence or being erroneously used otherwise.

On consideration of the application for amendment and on the one hand the averments and the grounds in support of the petition for possession of leased property filed by the landlord, on the other, the Tribunal found that the petition for possession was filed with reference to Section 106 of the Act of 1882 and the case of the landlord in the petition was that the lease-deed with a currency of three years having lapsed on 17.08.2010, he was entitled to a direction for possession thereof along with mesne profit in an amount of Rs. 8,56,654/-. It was also noted by the Tribunal that the cause of action in the petition had been stated to be the registered notice dated 20.01.2011 seeking repossession of the leased property subsequent to the expiry of the period of the lease-deed and the failure of the tenant to handover possession. The Rent Tribunal was of the view that in the context of the petition laid before it, the amendments sought to bring in fresh/new grounds for eviction of the tenant u/s 9(a) of the Act of 2001 relating to default and u/s 9(k) of the Act of 2001 relating to non-user which would entail a complete change in the nature of the petition as originally filed. It was further held that the amendments under Order 6 Rule 17 CPC can be made where the amendments sought could not have been included in the pleadings in the first instance for reasons beyond the control of the applicant. It was found that no such case had been made out by the landlord. Noting that the change of nature of the petition could not be allowed more so at the stage of final argument, the Rent Tribunal dismissed the application for amendment under Order 6 Rule 17 CPC.

Heard the counsel for the landlord and perused the impugned order.

It is trite that the amendments to pleadings on analogy of proviso to Order 6 Rule 17 CPC in proceedings under the Act of 2001 to which CPC does not per se apply, can only be made if such amendments relate to facts which in spite of due diligence of the party seeking amendment could not have been raised before the commencement of trial. From the facts on record, it appears that the amendments sought by the landlord in the instant case did not relate to the facts which could not be included in the petition for possession of leased property filed by landlord before the Rent Tribunal for good reasons and in spite of due diligence. The landlord''s case was that the amendments sought were for correction of typographical errors. In my considered view, the nature of amendments sought as detailed hereinabove cannot be attributed to typographical error but if allowed would have entailed a complete change of nature of the petition from one based on Section 106 of the Act of 1882 to one based u/s 9(a) and 9(k) of the Act of 2001. It is well settled that by way of an amendment, the substance of the petition cannot be altered. Aside of the above, allowing or disallowing an amendment sought is in the discretion of the trial court. Dealing with a case of amendment of pleadings, the Hon''ble Supreme Court in Subodh Kumar Gupta & Ors. Vs. Alpana Gupta & Ors. [(2005) 11 SCC 578] has held that where the discretion of the Courts and Tribunals below has been exercised for good reason, there would be no occasion for the superior court to exercise its supervisory jurisdiction under Article 227 of the Constitution of India and interfere therewith. In my considered view, the application for amendment filed by the petitioner-applicant has been dismissed on good grounds. The impugned order dated 16.01.2013 is neither perverse nor vitiated by a misdirection in law. It calls for no interference. The petition is without force and the same is dismissed. Stay application needs no address in view of the petition being dismissed.