Shri Suresh Bansal vs Smt. Krishna Nadkarni

Dev Darshan Sood, J.—This petition has been preferred by the tenant against the order passed by the learned Rent Controller, Shimla rejecting his application under Order 6 Rule 17 read with Section 151 of the CPC (hereinafter ''the CPC) seeking to amend his reply filed before the learned trial Court. The respondent is the landlady who had instituted the proceedings u/s 14(3) of the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter ''the Act'') for ejectment of the petitioner. One of the grounds pleaded is that suit premises are bonafide required by the petitioner-respondent for her own use and occupation as she is suffering from cancer. The applicant seeks to incorporate a preliminary objection to the effect that the landlady had rented out the tenanted premises in the year 2005 after vacating the same. Before the year 2005 the premises were occupied by the petitioner- respondent and her family and as she did not require the premises for herself, the same were rented out. In this view of the matter, the amendment was sought to incorporate that the bonafides requirement of the landlady was suspected and no order of ejectment u/s 14(3) of the Act could be passed in her favour. This amendment was sought to be incorporated in para 14 of the reply to the effect that after vacating the premises they were let out in the year 2005 and in this situation, the petition requires to be dismissed.

The learned trial Court rejected the application on the ground that in the eviction petition, the date of renting out the premises is June, 2003 by virtue of an oral agreement. In reply to this averment, the respondent before the trial Court submits that the premises were rented out by rent note which was executed between the landlady and the replying respondent (tenant) along with his mother and brother and this rent note has been deliberately withheld from the Court in order to obtain a favourable judgment. This is the crux of the case set out in the pleadings.

To say that there has been unequivocal admission on the part of the tenant with respect to the date of tenancy would not be correct as the pleading is vague. However, I do not pronounce on this aspect. The defence set up is that the tenancy was creature of written agreement inter se between the parties.

The Supreme Court in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , holds:

Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. (pp. 392-393)

4A. Adverting to the principle laid down hereinabove, the Court holds:-

...The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting malafide. There is a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice....

What I find from the present case is that the pleading, as sought to be introduced, goes to the crux of the entire matter that order of ejectment cannot be passed in view of the fact that the premises were vacated and then rented out. This would be a question of evidence which cannot be decided on the mere pleadings of the parties. It is a different matter that as to whether the pleadings of the respondent are substantiated by evidence or not. I also note that the landlady seeks bonafide possession of the premises on the ground that she is inter alia a widow, a senior citizen and suffering from cancer and intends to shift to Shimla. This is in addition to the other grounds urged for eviction from the premises. The petition is accordingly allowed. Order of learned Rent Controller is quashed and set aside and the tenant is allowed to place on record the amended pleadings. This will be subject to the petitioner paying costs of Rs. 7000/- to the landlady on the first date of hearing when the parties first appear before the learned Rent Controller which is 19th December, 2012. Needless to say that the opposite side shall be granted an opportunity to file suitable pleadings to rebut what the tenant urges which would also include the ground of estoppel by pleading. The case shall thereafter be proceeded with expeditiously keeping in view the needs of the landlord.