SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 1/11 S.B. CIVIL WRIT PETITION NO.6956/2003 L.Rs. of Imamudin and ors. versus Additional Civil Judge (J.D.) No.1, Bhilwara and Prem Kishan Date of judgment : 26th February, 2010 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr.Vikas Balia, for the petitioners. Mr.R.R. Nagori for the respondents. ------- REPORTABLE 1. This writ petition is directed against the order dtd.13.7.2001 passed by the learned trial Court of Additional Civil Judge (J.D.) No.1, Bhilwara in Civil Suit No.2/1992 – Immamuddin (tenant) V/s Prem Kishan S/O Shri Kishan (plaintiff). By this order, the learned trial Court rejected the application under Order 6 Rule 17 C.P.C. filed by the defendants – petitioners Immuddin seeking amendment in the written statement seeking to add para No.25 in the written statement. 2. The case appears to have long chequered history of litigation between the parties. However, the short controversy involved before this Court is validity of said order passed by the learned trial Court on 13.7.2001 on an application filed for SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 2/11 amendment under Order 6 Rule 17 C.P.C. 3. The facts relating to the present controversy in brief can be summarized as under: 4. A Civil Suit No.301/1966 was filed by Mangilal, Chunni Lal and Santosh Kumar S/O of Sh. Laxmi Narayan Agarwal (original tenants) and M/s Vijay Singh Mithalal, a registered partnership firm and Sh. Immamuddin (sub-tenants) in respect of a suit property situated in Bhilwara. On 3.10.1969, one of the plaintiffs Mangi Lal in civil suit No.301/1966 is said to have purchased the shops in question from other two plaintiffs through a registered sale- ded. In the year 1973, one of the aforesaid tenant Shri Kishan is said to have died and thereafter his son Prem Kishan, respondent before this Court in aforesaid writ petition appears to have filed another suit, namely, civil suit No.202/1976 against Imamuddin and M/s Vijay Singh Mithalal, a registered partnership firm seeking eviction. On 22.7.1988, this Court stayed the proceedings in said subsequent civil suit No.202/1976 filed by Prem Kishan till the disposal of the original suit No.301/1966. On 9.2.1990, the said Mangi Lal sold one shop in question by registered sale-deed to Sh. Imamuddin and on 12.2.1990 after three days sold another shop to Smt. Jubeda W/O Sh. Imamudin by another registered sale-deed. SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 3/11 5. On 24.1.2001, the original civil suit No.301/1966 was dismissed as having abated after the death of Mangi Lal and thus, the stay of subsequent suit No.202/1976 stood vacated and said subsequent suit which was stayed on 22.7.1988 again revived on 24.1.2001 after a gap of 13 years. After two years on 5.9.2003, the said Imamudin filed an application before the learned trial Court to be substituted in place of deceased Mangi Lal, but the said application was rejected and this Court on 5.9.2003 dismissed SB Civil Second Appeal No.191/2000 and 193/2002 and maintained the abatement of civil suit No.301/1966. On 20.4.2001, the said Imamudin also filed the present application under Order 6 Rule 17 C.P.C. and prayed for amendment in his written statement in the aforesaid subsequent suit No.202/1976 filed by Prem Kishan seeking to incorporate the subsequent developments in the form of purchase of one of the shops from Mangi Lal on 9.2.1990 and another shop by his wife on 12.2.1990. It is this application, which came to be dismissed by the learned trial Court by the impugned order dtd.13.7.2001 mainly on the ground of said application being belated. 6. Being aggrieved by the said order, the L.Rs. of said Imamudin have approached this Court by way of present writ petition. That earlier a revision petition was filed in this Court challenging the very same order dated 13.7.2001. However, the said revision petition No.832/2001 was held to be not maintainable by this SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 4/11 Court in view of amendment in the CPC and the judgment of the Hon'ble Supreme Court and accordingly was dismissed on 9.10.2003. The present writ petition was filed under Article 227 of the Constitution of India in this Court on 16.11.2001. 7. Mr. Vikas Balia, learned counsel appearing for the petitioner – legal representatives of said Imamuddin urged that the learned Court below has erred in rejecting the said application under Order 6 Rule 17 C.P.C. as belated in suit No.202/1976 because the said suit itself was stayed under Section 10 C.P.C. on 22.7.1988 and therefore, upon purchase of the said property on 9.2.1990 and 12.2.1990 by his wife, there was no occasion to file any amendment application under Order 6 Rule 17 C.P.C. to bring on record said subsequent developments, which took place during the pendency of the said suit until atleast upto 24.1.2001 when the original and previous civil suit No.301/1966 was dismissed as having abated upon the death of Mangi Lal and that abatement became final on 5.9.2003. He submited that the present application under Order 6 Rule 17 C.P.C. was filed soon after abatement of previous suit No.301/1966 on 20.4.2001 itself and therefore, cannot be said to be belated at all. He submitted that such subsequent facts in the form of tenant having purchased the suit properties itself was necessary to be brought on record and therefore, the amendment in the written statement by way of para 25 was utmost necessary for just and proper SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 5/11 decision of the suit itself and therefore, the learned Court below has committed grave error in law in rejecting the said application. He relied upon the following judgments in support of his submissions: i) (2006) 6 SCC 498 – Baldev Singh and ors. V/s Manohar Singh and anr. ii) (2006) 4 SCC 385 – Rajesh Kumar Agarwal and ors. V/s K.K. Modi and ors. iii) (2002) 6 SCC 1 – Nalakath Sainuddin V/s Koorikadan Sulaiman. iv) AIR 2006 SC 2832 – Baldev Singh and ors. V/s Manohar Singh and anr. These judgments were relied upon for the propositions like the Court has wide and unfettered powers to allow the amendment in the pleadings, that the amendment necessary for determining the real controversy should be allowed and even inconsistent pleas can be allowed to be raised in the written statement and lastly that where the sub-tenant occupying the portion of tenanted property, later purchases entire property from owner, he becomes paramount owner of the property and no eviction can be sought from such paramount owner. SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 6/11 8. On the other hand, Mr. R.R. Nagori, learned counsel appearing for the respondent Prem Kishan vehemently urged relying upon the series of judgments of this Court and Apex Court, a list of which is given below that the amendment in question has rightly been refused by the Court below as it was not only sought highly belatedly after 11 years of alleged purchase of the property, but the said amendment was also contrary to the admissions made by the present petitioner wherein he accepted the father of the present petitioners Sh. Prem Kishan as his landlord. Mr.R.R. Nagori also urged that the question of title is not relevant in eviction matters and therefore, the amendment sought by the present petitioner Imamuddin and other defendants warranted the trial Court to decide the question of title of the suit property which was not necessary and therefore, no amendment beyond the scope of the original suit could be allowed by the learned trial Court nor the amendment which would change the character of the suit itself could be allowed, much less at such a belated stage. He, therefore, supported the impugned order of the learned trial Court dtd. 13.7.2001 and prayed for dismissal of the present writ petition. 9. Mr. R.R. Nagori also contended that the crucial question be decided is whether amendment was rightly refused. The first question is in a suit for ejectment whether question of title can be decided. He submitted that Sri Kishan father of Premkishan is the SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 7/11 landlord and Immamuddin was the tenant. Immamudin very specifically admitted that he is the tenant of Shri Kishan, thus, party's right are to be decided on the basis of relationship of landlord and tenant. Now by this amendment, defendant Immamuddin wants to assert that he has acquired the rights of landlord. This is factually incorrect because Immamuddin himself has said that Mangilal was not the owner of the property. Shrikishan did not admit Mangilal to be his landlord. More so, Mangilal himself applied for being impleaded as a party in the suit but same was declined upto High Court. Thus, the right of Mangi Lal cannot be decided in this suit. More so, suit filed by Mangi Lal stood dismissed as abated and application by Immamuddin to be impleaded as a party in that suit is the legal representative under Order 22 Rule 10 C.P.C. was also dismissed. Thus all these questions relating to the rights of Mangii Lal cannot be decided in this suit. He further contended that this Court in the case of Dharam Chand V/s Parasmal reported in 2008 (3) DNJ (Raj.) 1609 while relying upon the Supreme Court judgment and also the Judgments of this Court held that tenant is estopped from denying the title of his landlord. In this case plaintiff is Prem Kishan and his rights have not been purchased by Immamuddin. More so, the purchase has been denied and the present petitioners are his legal representatives and one independent purchaser Jubeda who was never the tenant. The LRs of Immamuddin cannot acquire the rights as owner/ landlord. Trial Court has based its decision on the ground of SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 8/11 admission and held that Imamuddin cannot be permitted to resile from the admissions made. Trial Court has further held that the application for amendment was filed with delay. Mr. Nagori has relied upon the following judgments in support of his contention: i) 2009 AIR SCW 6644 – M/s Revajeetu Builders & Developers V/s M/s Narayanswami and sons. ii) AIR 2009 (Guj) 171 – Mukta Ben Mohanji Bhai Solanki V/s Jagdish Bhai Devraj Bhai Patel. iii) RLW 1996 (1) (Raj.) 116 – State of Rajasthan V/s Ishwardass. iv) (2003) 5 SCC 150 – T. Laxmipati and ors. V/s P. Nithyananda Reddy and ors. v) 1995(2) RLW (Raj.) 331 – Nagendra V/s Jahoor Khan. vi) AIR 2002 (SC) 3341 – Rita Lal V/s Rajkumar Singh. vii) AIR 1977 (SC) 680 – M/s Modi Spinning and Weaving Mills Co. Ltd. V/s Ladha Ram & Co. viii) 2002 (1) JT 97 – Vasu Deo V/s Bal Kishan ix) 2008 (3) DNJ (Raj.) 1609 – Dharmichand V/s Parasmal and anr. x) AIR 1973 SC 76 – The Managing Director (MIG), Hindustan Aeronautics Ltd. V/s Ajit Prasad Tarway. SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 9/11 xi) 2001 (5) WLC (Raj.) 398 – Babu Lal V/s Rajendra Kumar. Xii) 2006(1) RLW 579 - Anurag and Co. V/s Addl. Dist. Judge and ors. 10. Having heard the learned counsels at length and after going through the judgments cited at the Bar, this Court is of the considered opinion that the learned court below has erred in rejecting the application under Order 6 Rule 17 C.P.C. vide order dtd.13.7.2001. What was sought to be contended vehemently by the learned counsel for the respondents – plaintiffs Mr. R.R. Nagori for and on behalf of Mr.Prem Kishan is like putting cart before the horse. By amendment in question, it is merely to put on record certain subsequent developments which have taken place during the pendency of the suit which neither results in changing the character of the suit nor the question of title as is sought to be urged by the learned counsel for the respondents is required to be decided. The purpose of amendment under Order 6 Rule 17 C.P.C. is to facilitate the decision of real controversy in a suit and if such subsequent developments is found to be relevant to the controversy in hand, the same should normally be allowed by way of amendment in the pleadings. The fact that the tenant in question purchased the suit property itself is the fact which cannot be said to be irrelevant in eviction matter. It is true that question of title need not be decided in SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 10/11 eviction matter, but at the same time, if the tenant himself purchases the suit property, the land-lord who originally filed the suit cannot seek eviction from such tenant who has purchased the property itself. If the factum of purchase of said property is sought to be brought on record by way of amendment, it cannot be thrown off the board. It does not necessarily mean on the other hand that the suit would be turned into the suit of determination of title and therefore, the contention of the learned counsel for the respondents plaintiffs is found to be not sustainable. 11. As far as question of delay in filing the application is concerned, in the opinion of this Court, the same has been sufficiently explained as the suit itself in question in which the present amendment is sought was admittedly stayed on 22.7.1988 and that stay got vacated with the dismissal of the previous suit only on 24.1.2001 when the present petitioner Immamuddin moved the Court for substitution in place of Mangi Lal by moving the application which application was finally dismissed by this Court with dismissal of second appeal No.191/2000 and 193/2002 on 5.9.2003. The application for amendment under Order 6 Rule 17 C.P.C. was filed by the present petitioner Imamuddin and others on 20.4.2001. During the course of stay of proceedings of suit in question filed by the present respondent Prem Kishan, there was no question of present petitioner Imamuddin and others filing such application as nothing SBCWP No.6956/2003 – LRs. OF IMAMUDDIN V/s ADDL. CIVIL JUDGE AND ANR..: JUDGMENT DTD.,26.2.2010 11/11 could happen before the learned trial Court during the stay of said suit. With the dismissal of previous suit No.301/1966 as having abated, upon the death of Mangi Lal on 24.1.2001 and the present application filed within three months thereof on 20.4.2001, it cannot be said to be a delayed application at all. The learned Court below has fallen into error in relating back the date of application to the date of purchase of properties itself and held it to be belated and dismissing it. The said application was not at all belated and as observed above, since the amendment in question was relating to the controversy in hand in eviction suit filed by the respondent Prem Prakash, the said amendment could not have been disallowed by the learned Court below. Therefore, this Court finds force in the writ petition filed by the petitioners as aforesaid and the same deserves to be allowed. 12. Consequently, this writ petition is allowed and the impugned order dtd.13.7.2001 is set aside and the amendment application filed by the present petitioners under Order 6 Rule 17 C.P.C. stands allowed. The amendment may be incorporated in the written statement as prayed for in the amendment application and the learned trial Court may proceed further accordingly. No order as to costs. [ DR. VINEET KOTHARI ], J. iten No. ss/-