Kundan Lal vs Bimla Rani and Others

N.K. Kapoor, J.—This is tenant''s revision petition u/s 15(6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short ''the Act'') challenging the legality as well as propriety of the order passed by the Rent Controller and affirmed in appeal by the Appellate Authority.

Briefly put, respondent Bimla Rani filed an application u/s 13 of the Act seeking eviction of the petitioner on the following grounds, namely, (i) that the tenant is in arrears of rent and house tax; and (ii) that the tenant has sub-let a portion of the demised property without the written permission of the landlord.

On receipt of notice, tenant put in appearance and filed written statement. During the pendency of the rent application, tenant filed an application seeking amendment of the written reply specifically making a prayer that para No. 10 of the reply be permitted to be substituted. Vide the aforesaid amendment sought, the tenant intended to withdraw the admission made in this para of the written statement wherein it was admitted that the land in dispute is a rented land. However, vide the proposed amendment, tenant intended to set up a plea that the land leased out to him is not a rented land as defined in the Act and so the application filed by the landlord is not entertainable in terms of the provisions of the Rent Act. This application was declined by the Rent Controller and thereafter issues as per pleadings of the parties were framed relating to the ownership of the property in dispute; its boundaries; status of respondent No. 1 (tenant); effect of previous litigation; maintainability of the petition; and as to whether respondents are liable to be evicted on the grounds mentioned in para No. 9 of the application.

The Rent Controller on examining the evidence adduced by the parties finally came to the conclusion that the property which was let out to respondent No. 1-tenant has, however, been sub-let to the other respondents without any written consent of the landlord and so ordered eviction of the respondent-tenantes granting three months time to deliver the vacant possession of the demised plot to the applicant-landlord.

Before the appellate authority, once again the contesting respondent-tenant pressed the plea of amending the written reply which, however, did not find favour with the authorities. The appellate Authority, however, considered the other pleas raised by the appellant but found no ground to vary or reverse the findings recorded by the rent controller, Resultantly, the appeal too was dismissed.

It is the concurrent findings recorded by the Courts below which the petitioner-tenant has challenged on the ground that the same are contrary to the statutory provisions as well as judicial pronouncements of this Court. At the outset, the counsel for the petitioner-tenant again pressed his plea with regard to the amendment of written reply. Elaborating the counsel argued that it is incumbent upon the applicant-landlord to state facts which per se give jurisdiction to the Rent Controller to adjudicate the claim set up. In the instant case, as per applicant''s own case the land in dispute is stated to be a vacant plot which was given on lease to the present applicant-tenant. According to the counsel, since the property is described to be vacant plot, the same has been erroneously considered to be a rented land in terms of Section 2(f)of the Act and so the Rent Controller chose to assume jurisdiction in respect of such a property. Since a vacant land does not fall within the purview of the rented land in terms of Section 2(f)of the Act, the Rent Controller has no jurisdiction to adjudicate the same and so the orders impugned suffer from this legal infirmity and thus liable to be set aside. Precisely for this reason, the petitioner-tenant at the earliest had approached the Rent Controller seeking amendment of written reply to the effect that the land in dispute does not fall within the ambit of rented land. For no valid reason, the amendment sought was declined by the Rent Controller and subsequent prayer made before the appellate authority too did not find favour which has consequently resulted in depriving the petitioner-tenant of his valuable right to resist the unjust claim set up by the landlord. Since the amendment goes to the root of the case, the same ought to have been allowed in the facts and circumstances of the case. Reliance has been placed upon the decisions of the Courts and that of the Apex Court reported as Ambika Parshad v. Devi Mandir, Karnal (1986) 89 P.L.R. 149; Surain Singh v. Swami Dhian Santosh Anandpuri and Anr 7. In addition thereto, the counsel pressed with regard to his plea of res judicata, sub-letting and argued that, in fact, the authorities below have taken a perfunctory view of the whole matter. According to the counsel, authorities have erred in law in deciding against the petitioner solely on the report of the Local Commissioner who in turn relied upon the statement of family members of Surti, alleged sub-tenant of the petitioner. Since Surti had been won over by the landlord and, in fact, has filed an admission statement, the matter ought to have been examined by the authorities independently of evidence of such interested person. No such plea is legally permissible even as per evidence on record.

Counsel for the respondent, on the other hand, argued that, admittedly, the property in dispute was leased out the Kundan Lal - the petitioner - who had run a dhaba for sometime and thereafter left the place and sublet the same to Mr. Surti and Jai Kanwar; one has been running a dhaba whereas the other has been running a shop of cycle works therein. To prove it, a Local Commissioner was appointed by the Rent Controller who recorded the statements of the persons and finally submitted the report which clearly prove that Kundan Lal had sub-let the premises to Sarv Sh. Surti and Jai Kanwar and so parted with possession and all this without the written consent of the landlord.

As regards the plea of the petitioner that the vacant land does not come within the purview of rented land, it has been argued that, in fact, the petitioner accepted in his written reply that the same is rented land. Otherwise too, no prejudice had accrued to the petitioner in any manner and so the revision petition is devoid of any merit and deserves to be dismissed.

I have heard learned counsel for the parties for a considerable time and have also perused the impugned orders of the authorities below as well as statements of some of the witnesses and the documentary evidence adduced by the parties in support of their respective contentions.

Paras No. 1 and 10 of the application dated 1.9.1979 and reply to these paras in the written reply dated 19/20.2.1980 by Kundan Lal tenant, in fact, go to the root of the controversy raised and so are reproduced hereunder :-

Para No. 1 and of the application dated 1.9.1979.

"1. That the applicant is the owner of a vacant plot near tehsil building, Kaithal, measuring 168 sq. yards and 89 sq. inches, shown red in the site plan attached and bounded as under:- by purchase from its previous owner Malik Suraj Bhan, Pleader, Kaithal, vide a registered sale deed dated 31.1.1973 :-

North :- Vacant land of Municipal Committee, Kaithal.

South :- Passage.

East:- Passage of Mandir.

West:- Main Road.

That as the rented land is situated within the limits of Kaithal Municipality, this Courts has got jurisdiction to try the application."

Written reply dated 19/20.2.1980 filed by Kundal Lal tenant.

"1. That para No. 1 is admitted to the extent that respondent No. l took on rent the plot from Shri Suraj Bhan, Pleader. However, the boundaries as given in this para are wrong and denied. The answering defendant, soon after taking the plot on rent, raised the construction and is running a dhaba thereon since then.

Para No. 10 is admitted."

A perusal of para No. 1 of the application dated 1.9.1979 reveals that the applicant on her own has described herself to be owner of the vacant plot. However, while stating with regard to the jurisdiction of the authority, it has been described as a rented land. To the similar effect is the written reply i.e. admitting the averments made by the applicant with regard to the nature of the property as stated in para No. 1 and 10. Per se the applicant has taken a contradictory stand and so has the respondent-tenant. Perhaps of this reason, the respondent-tenant filed application with a view to substitute para No. 10 of the written reply as under :-

"That in reply to the para 10 it is submitted that territorial jurisdiction is admitted. It is also correct that it was land which was leased. However, it is not "rented land" as defined in the Act and respondent is not liable to ejectment and provisions of Rent Act do not apply as it is not even pleaded nor was leased principally for business purpose which is clear from the rent note also which is latest rent note."

This application is dated 30.3.1982 accompanied by the proposed amended written statement which was declined by the Rent Controller as well as the appellate authority.

u/s 13 of the Act, a tenant in possession of a building or rented land is not to be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section. Thus, to seek possession of a building or rented land, eviction of tenant has to be as per provisions of Section 13 of the Act. Section 2(f)of the Act defines "rented land". "Rented land" means an land let separately for the purpose of being used principally for business or trade.

For the purpose of this revision petition enquiry relates to determination as to whether the property let out to the petitioner-tenant was rented land in terms of the Act. Vide Section 2(f)of the Act, the property besides being a rented land, the same has to be let out separately for the purpose of being used principally for business or trade. Thus, unless the principal purpose of letting is business or trade, the same will not fall with the ambit of "rented land" as defined in the Act. As per paragraph 1 of the application reproduced above, the property is stated to be a vacant plot. Earlier one Malik Suraj Bhan, Pleader, was the owner of the property who, in fact, let out the same to Kundan Lal-petitioner-tenant. It is in evidence that the same was let out at a yearly rent of Rs. 300/-. In document Exhibit P-7 decision by Sub Judge, Ist Class, Kaithal, in a civil suit between Smt. Bimla Rani versus Sh. Kundal Lal, there is a reference to a registered rent note dated 21.2.1968 whereby Suraj Bhan leased out the property for a period of five years i.e from 25.10.1967 to 29.10.1972 at a yearly rent of Rs. 300/-. This rent not came into existence much earlier to the filing of the present application for eviction. But the rent note has not been adduced in evidence. Rent note, if adduced in evidence, could throw some ''light as to the exact nature of the property when the same was let out i.e. whether the same will come within the definition of ''rented land'' as per Section 2(f)of the Act or not. Decision on such a vital issue indeed has a material bearing on the whole controversy. Somewhat similar point came up for consideration in Civil Revision No. 177 of 1966 (Prem Narain v. Smt. Rajo and Ors.) decided on October 31, 1967. Therein also a controversy was raised as to whether the lease of the property was in respect of rented land or otherwise. It is in this context that the Court observed, "the original owner of the land who let the land to the tenant is said to be alive and he might, if produced in the witness-box, have thrown light on the question of the purpose for which the land was let to the tenant.." The Court further observed, "it has never been the case of the landlord that initially the land was let principally for business or trade and unless he makes that averment and proves it, he cannot succeed on the ground that the land is rented land within the meaning and scope of Section 2(f)of the Act...." Pleadings in this regard are also deficient.

Law with regard to amendment of pleadings is fairly liberal. In the instance case, tenant without any loss of time approached the Rent Controller with a view to seek amendment of the written reply, especially the averment made in para No. 10 of the written statement which has, however, been declined primarily on the ground that he cannot be permitted to withdraw the admission so made. The authorities below have erred in law in not properly construing the averments made by the applicant in the light of provisions of the Rent Act. Since the applicant-landlady on her own described the property to be a vacant plot, it was incumbent upon the Rent Controller to examine whether it has jurisdiction to adjudicate in respect of such a property and thereafter issue notice to the respondent-tenants. The Rent Controller as well as appellate authority appears to have proceeded on the assumption that since from the very inception the property in dispute was put to commercial use, the same comes within the definition of ''rented land''. However, in the light of decision of this Court reported above, so such conclusion was legally permissible. The matter has to be examined in the light of Section 2(f)and Section 13 of the Act. Even the parties could not confer jurisdiction on the Rent Controller.

The Apex Court in Panchdeo Narain Srivastava''s case (supra) has held, "an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn."

The other decisions cited by the petitioner regarding amendment of written statement support the plea set up by the petitioner.

Thus, I am of the view that the Rent Controller as well as the appellate Authority erred in law in not allowing the amendment sought by the petitioner-tenant which has resulted in failure of justice. Accordingly, I accept the revision petition, set aside the impugned order, allow the amendment of written statement and remit the case to the Rent Controller to examine the matter afresh in the light of pleadings of the parties and, if need be, permit them to adduce evidence and thereafter decide the same. Since I have come to the conclusion that the impugned orders are unsustainable on the ground of declining the amendment sought, I do not think necessary to dilate upon the other findings with regard to res judicata and subletting.

The matter has remained pending before various forums during the last 14 years and keeping this in view, I direct the Rent Controller to decide the application without any further delay and preferably within six months of the receipt of order of the Court. The parties are directed to appear before the Rent Controller, Kaithal on 30.9.1996.