Kundanlal Verma vs Sushila Devi

This is an petition for revision of an order dated the 9th of July, 1971 passed by Shri Om Parkash Saini, Appellate Authority at Ludhiana under the East Punjab Urban Rent Restriction Act, 1949, dismissing the appeal of the petitioner against the order of the Controller which directed the petitioner''s ejectment from the premises in dispute on the ground that they constituted a residential building and were bona fide required by the landlady-respondent for her own use.

During the pendency of his appeal the petitioner made an application under Rule 17 of Order 6 and Section 151 of the CPC for permission to amend his written statement so as to plead that the building in dispute was a "scheduled building", ejectment of the petitioner from which could not be ordered on the ground that it was required by the landlady-respondent for her own use. That application was rejected by the learned Appellate Authority with the following observations:

"I have heard the learned counsel for the parties and am of the opinion that the proposed amendment cannot be permitted to be made in the written reply at this late stage. It was well within the knowledge of the tenant when he filed the written reply as to whether the building in suit was a scheduled building or not. The tenant is not an ordinary person but is a Law Graduate and he could not furnish any explanation as to why this ground was not taken in the written reply. He cannot be permitted to set up a totally new case at this stage.

"The rent note executed by the tenant shows that he had taken the building in dispute for the purpose of his residence only. It appears to me that he wants to amend the written reply at this late stage mala fide with a view to prolong the litigation".

2-A. The only point urged in support of the petition by Mr. Bhagirath Dass is that the petitioner should have been allowed to amend his written statement even at the stage of appeal and that the cases should have been remanded to the Controller thereafter for a fresh decision on merits. The point, in my opinion is without substance. No exception can be taken in the circumstances of the case to the observations made by the learned Appellate Authority in rejecting the application for amendment. As laid down in A.K. Gupta and Sons Vs. Damodar Valley Corporation, , the general rule in the matter of following amendment of pleadings is that an amendment by means of which a party seeks to set up a new case or a new cause of action (particularly when a suit on the new cause of action would be barred) is not permitted. The amendment sought to be made in the present case was certainly of a type which is barred under the rule. It is not an amendment which would merely open a different or additional approach to the facts already stated but is one which changes the nature of the defence or, in other words, sets up a new case. Under the circumstances I am of the opinion that in rejecting the amendment the learned Appellate Authority exercised its discretion very properly and that no interference therewith is called for.

Mr. Bhagirath Dass has no other point to urge in support of the petition which is accordingly dismissed with costs subject to the direction, however that the order of ejectment passed by the Controller shall not be executable up to the 30th of November 1971, provided the following conditions are satisfied:

(a) All arrears of rent due from the petitioner up to the 31st of August 1971, are deposited by him in the Court of the Controller on or before the 15th of September, 1971.

(b) Rent for each of the months of September, October and November, 1971, is deposited by the petitioner in the Court of the Controller within 15 days of the expiry thereof.

It is made clear that if either of the conditions is not fulfilled, the petitioner shall not be entitled to avail of the extension of time granted to him hereunder.

Revision dismissed.