CM(M)/35/2014 of SURINDER KUMAR Vs VED PRAKASH GUPTA & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 17.1.2014

+CM(M) 35/2014

SURINDER KUMAR

..... PetitionerThrough:M.Z.Chaudhary&Mr.Q.H.Khan, Adv. for petitioner.

versus

VED PRAKASH GUPTA & ORS..... RespondentsThrough:None.

%MR. JUSTICE NAJMI WAZIRI (Open Court)

1.The petitioner has impugned an order dated 17.10.2013 wherebyhis application under Order 6 Rule 17 CPC for amendment of writtenstatement filed in the original suit before the Appellate Court wasdismissed.The suit was filed by one Smt. Uma Devi and Sh. VedPrakash Gupta claiming that Shop bearing Municipal No.498, WardNo.7, Chhota Bazar, Shadhara, Delhi was let out to late Sh. KhacheruMal, father of Surender Kumar, defendant No.2 (the appellant before theAppellate Court and the petitioner in this petition) on monthly rent ofRs.14.87. Initially only Smt. Uma Devi was the plaintiff but having soldthe suit property to Sh. Ved Prakash Gupta vide sale deed dated 20[th]

October, 1982, the latter was impleaded as plaintiff No.2. It was the caseof the plaintiffs that the suit property was let out for eleven months. Arent note dated 31.5.1944 was executed by her. Upon expiry of the saidperiod, Sh. Khacheru Mal became the statutory tenant. His subsequentdemise was not intimated to her by his sons who continued to occupy thepremises and pay rents to her. Upon subsequently coming to know of hisdemise on 7.9.1970, she refused to accept further rents from thedefendants-occupants of the suit premises and called upon them to vacateit. In default whereof, this suit was filed seeking decree of possessionas well as for mesne profits and damages.Defendant No. 2 whilecontesting the suit questioned its maintainability on the ground that it wasbarred by Section 50 of the Delhi Rent Control Act, 1958. He claims tohave become statutory tenant since the deceased tenant had died as acontractual tenant. On merits, defendant No.2 pleaded that Sh. KhacheruMal became an owner of the premises since it was in his possession andof his family for more than 50 years through the first tenant. He contendsthat thus he became the owner of the property since he was in possessionof the same for more than 30 years without any challenge of his title. Thepetitioner relied upon both the contentions i.e. (i) the suit was barredbecause of Section 50 of the Act since he had allegedly become

statutory tenant and (ii) that otherwise he became an owner of thepremises through adverse possession.

2.Counsel for the petitioner states that the defence of the tenant wasthree-fold, firstly that prior permission was not taken under the SlumsAreas (Improvement and Clearance) Act, 1958; secondly, that the suititself is barred under section 50 of Delhi Rent Control Act and thirdly, thefact that he is owner of the property in terms of adverse possession overthe so-called tenanted premises. He has suffered the adverse order in theeviction proceedings and now he wishes to drop the issue of adversepossession. He states that an eviction petition should sustain itself on itsown strength, and be considered on its own legs and the changing of legalstand by the respondent/tenant, would not make any difference to thesubstantive merit of eviction petition.Therefore, according to him theimpugned order is bad in law for the reasons aforesaid.

3.The Appellate Court dismissed the application on the ground thatalthough defendant can set up alternative pleas but the proposedamendments were such as would substitute in new cause of actionwhich were inconsistent or mutually destructive.A plea which amountsto defeating legal right accruing to the opposite party; or being malafideor causing injustice to the other parties cannot be allowed. The AppellateCourt relied upon the judgment in Dewan Kaur vs. Savitri Devi, 154

(2008) DLT 211 (DB) which held that where defendant denied the titleof the landlord, he would not be entitled to the protection of the DelhiRent Control Act and consequently, the bar of section 50 would notapply. During cross-examination, DW-1 had denied the suggestion thatSh. Khacheru Mal was the tenant in the suit premises.He claimedownership through his father.He further denied the suggestion in thecross-examination that he had deposed in his affidavit that “if the plea ofownership of the defendant is not proved then in the alternative, thedefendants are contractual tenants”.As per the case put up by theplaintiffs themselves, the plaintiffs were held to be the owners of the suitproperty on the basis of evidence on record. The defendants’ claim ofownership by way of adverse possession was rejected. The Trial Courtrelied upon the case of Dewan Kaur (supra).The Appellate Courtconsidered the law laid down in Jai Jai Ram Manohar Lal vs. NBMSupply, 1970 (1) SCR 22, Panchdeo Narayan vs. Jyoti, AIR 1983 SC462, Hundari Bewa vs. Keluni Dei, AIR 1984 Orrissa 37, Akkanagammavs. Nageshwariah, AIR 1968 Mysore 266, Gautam Sarup vs. Leela Jetly,(2008) 7 SCC 85 and finally on B.K. Narayana Pillai vs. ParameshwaranPillai, 2000(1) SCC 712 to conclude that the principles of amendmentapplicable to amendment of plaint would be equally applicable foramendment of written statement, but the said principles would be less

prejudicial in respect of amendment of written statement, thus callingfor more liberalism in the latter instance. It reasoned however, that whiledefendants would have right to set up alternative pleas, it could notextend to amendments which would substitute new cause of action onthe basis of which the original defence was raised or be inconsistent ormutually destructive allegations.

4.The Appellate Court reasoned that the main defence of thedefendant was that his father had become the owner of the suit premisesby way of adverse possession, although in the cross-examination he haddenied the suggestion that he was statutory tenant. The Court reliedupon this Court’s judgment dated 27.2.2012 in RFA No.74/2002 whichheld that the tenant would be entitled to protection under section 50 ofthe DRC Act only where the relationship of the landlord and tenant wasnot disputed.Therefore, once statutory tenant refuted title of hislandlord, he forfeits the protection under the Act. In the present case, themoment he refused the title of the plaintiff, he lost protection of the DRCAct. The Trial Court had already rejected the defendants’ case of adversepossession.The case before the Appellate Court was whether thedefendant No.2 could be permitted to amend his written statement so asto draw the plea of adverse possession at the stage of appeal.Theamendment was disallowed because i) the defendants had lost the

protective cover under DRC Act, which accrued valuable right in favourof the plaintiffs; ii) that serious injustice would be caused by permittingthe amendment and that too at the appellate stage if the defendants wereto drop their plea of adverse possession. It would also amount to settingup an entirely new case in appeal. That having suffered an adverse orderon the basis of the defence raised before the Trial Court, the defendantcould not be permitted to get around his defeat by amending pleadings atthe appellate stage.

5.In view of the preceding discussion, this Court is of the view thatconclusion arrived at and the reasons therefor as plausible and indeedsound; the impugned order does not suffer from any infirmity warrantingthe interference of this Court in its revisionary jurisdiction.Thealternative pleas raised by the petitioner are mutually exclusive anddestructive of each other. It was open to the defendant No.2 to base hisdefence either on the basis of adverse possession or as statutory tenantunder the DRC Act.Having chosen to press both the defences, thedefendant suffered the inevitable fate of his mutually conflictingcontentions ultimately destroying each other.Either of his defencescannot now be revived where both have suffered legal death.I amunpersuaded by the arguments of the learned counsel for the petitioner to

arrive at different view and to set aside the impugned order.Thepetition is without merit and is accordingly dismissed.

JANUARY 17, 2014/ak

NAJMI WAZIRI(JUDGE)