M/S Pankaj Hotel vs Bal Mukund

Manoj Misra, J.—Supplementary affidavit filed today is taken on record.

Heard learned counsel for the petitioners.

A perusal of the record would go to show that SCC Suit No. 9 of 1979 was instituted by the plaintiff respondents 1 to 3, who are represented by their heirs, against Sumer Chandra (respondent no. 4), Pradeep Kumar Jain (petitioner no. 2) and Paduman Kumar Jain (respondent no. 5) for arrears of rent and ejectment on the ground of default in payment of rent, subletting and structural alteration. The trial court dismissed the suit by judgement and decree dated 22.2.1991 and 6.3.1991 respectively against which Civil Revision No. 930 of 1991 was filed, which was allowed by order dated 3.7.2015 thereby setting aside the judgement and decree passed by the trial court and remitting the matter back to the trial court to examine issues 3 and 4 afresh in the light of the observations made in the order of remand. Issue no. 3 was "whether the defendants 1 and 2 had made material alterations in the demised kothi as alleged in para 5 in the plaint"? If so, to what effect? Issue no. 4 was "whether the so called unauthorized changes made by defendants 1 and 2 in the demised premises had reduced the value of premises in question"? Consequent to the order of remand, the proceedings were re-instituted before the trial court and during the pendency of the proceeding, an application was moved on behalf of the petitioners to file an additional written statement consequent to the substitution of the heirs of Paduman Kumar Jain. It is this application for leave to file additional written statement which has been rejected by the impugned order dated 16.11.2016. The record further reflects that the heirs of Paduman Kumar Jain were substituted during the pendency of the revision proceedings before this Court, after condoning the delay in filing the substitution application, and necessary substitution was carried out under the orders of this Court without granting any leave to file an additional written statement.

Learned counsel for the petitioners has submitted that the additional written statement would be required because consequent to the induction of the heirs of the deceased Paduman Kumar Jain, the constitution of the alleged partnership firm M/s Pankaj Hotel had taken a change and therefore additional written statement was necessitated by subsequent development.

The aforesaid submission cannot be countenanced because the question of subletting has not been reopened for adjudication and the matter has been remitted to the court below only for considering issues 3 and 4 which related to material alteration carried out in the demised premises as alleged in the plaint. In the order of remand, this Court had specifically observed that even if the principal tenant Sumer Chandra had withdrawn himself from tenancy but if the material alterations were made at the time when he was a partner with the other tenant, then his act would bind the other tenant and therefore what was crucial to be decided was whether the material alterations as alleged were made or not and if so made were they made at the time when the other partners who were defendants in the suit had been inducted in partnership or not. As the aforesaid questions required no further pleadings and the question had to be decided on the basis of material already on record, this Court finds no jurisdictional error in the order passed by the court below refusing the petitioners'' request to file additional written statement because the heirs of deceased Paduman Kumar Jain had been substituted, particularly, when this Court while passing the order of remand had not granted any such liberty and the substitution was carried out under the orders of this Court in Civil Revision No. 930 of 1991.

The petition is dismissed.