CR No.4349 of 2010 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.4349 of 2010 (O&M) Date of Decision: 04.04.2011 All India Handloom Fabrics Marketing Cooperative Society Ltd. and another . . .Petitioners Versus Naresh Batra . . . Respondent ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Sumeet Goel, Advocate, for the petitioners. Mr.Amit Rawal, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. (ORAL) The tenant is in revision against the order dated 27.5.2010 passed by learned Rent Controller, Chandigarh by which his application filed for amendment of the written statement under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short ‘CPC’) has been declined. The tenant entered into possession of SCO Nos.101, 102 and 103, Sector 17-D, Chandigarh by way of lease deed executed by B.L. Batra on 24.12.1977. After his death, one of his sons Naresh Batra filed petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 (for short ‘the Act’) on 1.12.1997 in order to seek eviction of the tenant on the ground of personal necessity to which reply was filed by the tenant in which it was alleged that other three co-owners to whom the tenant has been sending rent though cheques have not joined the petition and as such the petition is not maintainable in their absence. The averments made in the written statement were denied by way of replication and when the pleadings were over on 27.5.1998, issues were framed and the evidence of the landlord was over on 13.9.2006. In between, the landlord filed an application for amendment of the eviction petition and another application was filed by Mahesh Batra/co-owner, CR No.4349 of 2010 - 2 - under Order 1 Rule 10 of the CPC for impleading him as a party which was dismissed by the Court on 4.8.2009. The tenant had also filed an application under Section 151 of the CPC for dismissal of the eviction petition on the ground that since the co-owner Mahesh Batra has executed a fresh lease deed in their favour with enhanced rent and the lease deed has been registered at Sr. No.2272, Book No.1, Vol. 156 on 14.9.2006 in the office of Sub Registrar, Chandigarh, therefore, the eviction petition be dismissed as the cause of action for their eviction ceased to exist. The said application was dismissed by the Court observing that “besides so far as the allegations raised by the applicant are concerned i.e. the applicant has paid some rent to Dr.Mahesh Batra, HUF, or that some fresh lease deed has been executed between Dr. Mahesh Batra and the applicant and also that the applicant has surrendered the portion of the tenanted premises to Dr.Mahesh Batra, these allegations could be substantiated by leading evidence at the time of trial and the implications of these facts is also a matter of evidence”. Pursuant to the aforesaid order, the tenant filed application for amendment of the written statement for the purpose of inserting the following averments: - “That the present petitioner has filed the present petition for the ejectment of the respondents from the entire ground floor and a room measuring 20 x 20 in the basement of SCO No.101, 102, 103, Sector 17D, Chandigarh whereas the respondent is now the tenant in respect of the part of the ground floor and 400 sq. ft. Area of the basement and, therefore, the present petition is not properly framed and filed That the present petition is liable to be dismissed in view of the execution of the fresh lease deed executed between Mahesh Batra (HUF) and the respondents on 14.9.2006. The demised premises being un-partitioned each co-owner is deemed to be in possession of each nook and corner of the property. The respondents had surrendered the part of the tenanted premises and had executed a CR No.4349 of 2010 - 3 - fresh lease deed in respect of the remaining part meaning thereby that Mahesh Batra had come in possession of the surrendered portion not only for himself and for other co-owners as well i.e. the present petitioner Naresh Batra and since he has left it out again, therefore, the petitioner who is a co-owner is deemed to have vacated the premised after the enforcement of the Rent Restriction Act.” This application was contested by the landlord which was ultimately dismissed by the Rent Controller on the ground that the earlier application filed by Mahesh Batra for impleading him as a party and the application filed by the tenant for dismissing the eviction petition were already dismissed. Learned counsel for the petitioners has argued that they wanted to add only the subsequent events which took place in the year 2006 as a result of which one of the co-owners of the demised premises has not shown any interest in seeking the eviction as he had executed a fresh lease with enhanced rent which could be brought to the notice of the Court only by way of amendment of the written statement. In this regard reliance has been placed upon a decision of the Delhi High Court in the case of “Rajinder Gopal Vs. Gowarsons Publishers” 2001 (1) RCR 75. It is also submitted that the Court below had committed an error in dismissing the application, inter alia, on the ground that earlier Mahesh Batra (co-owner) had unsuccessfully made an attempt to become a party. On the contrary, learned counsel for the respondent has submitted that it is not the dispute inter se the landlord rather one of the landlords is pursuing the case of the other, who had no objection to his application for seeking eviction of the tenant, therefore, in terms of ‘doctrine of agency’ the present petition is maintainable even without the presence of other co-owners as has been held earlier by the Court. It is also submitted that for the purpose of seeking amendment the tenant is to prove that the amendment was not within their knowledge despite exercise of due diligence. I have heard both the learned counsel for the parties and perused the record. Admittedly, the eviction petition was filed on 1.12.1997 by one of the co-owners of the landlord. It is also a fact that the other co-owners had filed a suit CR No.4349 of 2010 - 4 - for seeking partition of the demised premises which is still pending in which the lease deed executed by the co-owner on 17.9.2006 is under challenge. The fact remains that by way of execution of lease deed dated 14.9.2006, the other co-owner Mahesh Batra has shown is inclination in retaining the tenancy of the petitioners insofar as his share is concerned and in these circumstances the question arise whether the subsequent event can be brought on record or not especially when the proceedings are still continuing and is at the stage of evidence of the tenant. The question of ‘doctrine of agency’ would also not be applicable because the co-owner had tried to participate in the eviction petition though he remained unsuccessful. The learned Court below while dismissing the application filed by the petitioners under Section 151 of the CPC observed that the tenants can substantiate by leading evidence to issues with regard to execution of fresh lease deed by Mahesh Batra, therefore, it is very much necessary that permission should be granted to the tenants to bring this fact in the written statement by way of amendment. In view of the above discussion, I am of the considered view that the impugned is patently illegal and suffers from material irregularities. Hence, the present revision petition is allowed and impugned order is hereby set aside. No cost. (RAKESH KUMAR JAIN) APRIL 04, 2011 JUDGE Vivek