Manjit Singh vs Smt. Sant Kaur

M.S. Liberhan, J.—The learned counsel for the revision-petitioner preferred an application seeking an amendment in the written-statement to lake a plea that the demised premises is a godown and is being used as such from the very inception of the tenancy and it being a commercial premises cannot be got vacated on the ground of personal necessity. The amendment was allowed subject to all just exceptions, that is, keeping the right of the respondent open to take an appropriate objection it the time of hearing of the case. The learned counsel for the respondent has file a reply to the application for amendment and objects to the grant of permission to amend the written-statement.

Learned counsel for the applicant has urged that in view of the evidence which has come on the record, the amendment has to be allowed. He referred to the statements of A. W. 1 and A. W. 2 and the site-plain to show that they have stated that the building is commercial one in which there are, two shops and the godown on the ground floor and on the first floor, the landlord is residing herself. It is further urged that since the room in possession of the petitioner is being used as a godown, it is non-residential building and hence, no ejectment order can be passed as it is covered by the definition of non-residential building given in Section 2(d) of the Rent Act, defining the non-residential building. He has further referred to the decision in M. P. Bansal v. The District Employment Officer 1985(1) R C. R. 490 to Show what is residential building and further to corroborate that where a demised premises, has been rented out for commercial purposes, the some cannot be got vacated for personal necessity. It has been very vehemently and very sanguinely urged that the case has to be remanded to determine whether the building is a commercial or non-residential building when prime facie in the statements of the witnesses already examined, the building is proved to be non-residential one and it is by inadvertence only that this plea has not been taken either before the Rent Controller or before the Appellate Authority. This inadvertence has come to the notice of the petitioner only during the pendency of the revision petition after its admission. Consequently, application for amendment has been preferred.

Learned counsel for the respondent while controverting the submissions made contends that the amendment of written-statement cannot be permitted merely on the ground that the party or the application intends to bring the pleadings in conformity with the evidence. It is farther contended that the evidence is to be permitted to come on the record in conformity with the pleadings and not the other way round, and that parties cannot be permitted to amend their pleadings according to the development of the case at this belated stage of remission in order to bring the pleadings in conformity with the evidence.

Learned counsel for the respondent has further urged that since the tenant has already accepted the demised premises to be a house, he cannot be permitted to withdraw the admission already made. He has read out para No. 1 where the demised premises has been described as house It has been further pointed out that even number given by the Municipal Committee to the demised premises is House No. FJ-273. Further, the boundaries of the houses surrounding the demised premises have been again stated to be houses which fact is not controverted.

The learned counsel has further urged that even if the house has been put to commercial use, the landlady is at liberty to get the same vacated on the ground of personal necessity He relies on the decision in Shri Hari Mittal v. Shri B. M. Sikka (1986 ) 89 P. L. R. 1 The learned counsel while opposing the prayer to amend the written-statement has relied upon the decision in Rajinder Kishore and Ors. v. Kesar Dass and Ors. 1985 (2) R C. R. 104 in order to support that the belated amendment should not be allowed.

In my considered view there is no force in the contention raised by counsel for the applicant inasmuch as the application for seeking the amendment does not appear to be bonafide. There is no gain saying that the demised premises has been described from the very beginning of the ejectment application to be a house which face has been admitted by the tenant-respondent though an unguarded statement of some of the witnesses produced by the applicant described the rooms as a godown. Merely room having been described as a godown does not deprive it of its nature or character of a house. Even if it is described as a godown, it does not fall within four cancers of the definition of non residential building which prescribes that the building has to be solely used for business or trade. Even by the proposed amendment the applicant does not state that this godown was being used solely for business or trade. It is not disputed in the course of arguments that the petitioner is running a business across the road in a different shop and utilising the demised premises only for dumping his goods for ''he purposes of storage. Be that as it is, the petitioner cannot be permitted at this belated stage to set a new case and reopen the entire proceedings when the poor landlady has been able to satisfy he Courts below for her personal need after prolonged litigation of three years. The case cannot be set at naught now. On the face of it, the proposed amendment appears to be malafide and another crude attempt to reopen the case and further retain possession of the demised premise and deny the old couple to live comfortably at the fag end of their life. It is a crude attempt on part of the tenant to keep the demised premises in his possession as long as possible by any means. This is further inferable from the fact that first the proceedings were permitted to be taken ex parte, then application for setting aside the ex parte was made and then the only point pressed at the initial stages was that the order with respect to the proposed amendment has not been brought to the notice of the Court while disposing of the revision petition on merits. All this conduct of the petitioner leads to an inference that the application lacks bonafides. No reasonable explanation has been given why this amendment is being sought at this belated stage before the revisional authority Even otherwise also while exercising powers in revisional jurisdiction only improprietory or illegality of the order has to be seen. No fresh trial can be held at this stage for the fresh plea being raised. Further the plea has not become available only at the revisional stage. The petitioner cannot be permitted to withdraw at this stage a clear cut admissions already made by him with respect to the nature of the property.

For the reasons recorded above, this application for amendment is dismissed with special costs. Costs Rs. 2,000/-.