C.R. No. 6140 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 6140 of 2010 Date of Decision: May 2, 2011 M/s Ghazal Restaurant and another …..Petitioners Vs. Mrs.Samarbir Kaur @ Samarbir and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.A.K Chopra, Sr. Advocate with Ms. Shilpa Malhotra, Advocate for the petitioners. Mr.S.N. Chopra, Advocate for respondent No.1. -.- M.M.S. BEDI, J. The petitioners in the present case are tenants seeking a leave to contest under Section 18 (a) (4) of the East Punjab Urban Rent Restriction Act as applicable to the urban area of Chandigarh, (hereinafter referred to as ‘the Act’) in a petition filed under Section 13-B of the Act by respondent No.1. Respondent No.1 claiming to be co-owner/ land-lady of the ground floor of SCO No. 189-91, Sector 17-C, Chandigarh, of tenanted C.R. No. 6140 of 2010 [2] premises. Vide impugned order, the learned Rent Controller has dismissed the application filed by the tenant- petitioners for amendment of the application for leave to contest the petition under Section 13-B of the Act. This revision petition has been filed under Section 15 (5) of the Act questioning the legality and propriety of the impugned order dated September 10, 2010. Brief facts gathered from the impugned order and the documents produced by counsel for both the parties, relevant for the adjudication of this revision petition are that respondent No.1 has filed a petition under Section 13-B of the Act as extended to Union Territory of Chandigarh vide notification dated October 9, 2009 against the petitioners and proforma respondents No.2 to 4 claiming that she as a Non-resident Indian married to Mr.Rabinder Singh settled in Malaysia. She being permanent resident of Chandigarh, alongwith her son Brajesh Inder Singh ordinarily residing with her and dependent on her, bonafide requires the tenanted premises for her use and for the use of her son as she wants to start her own business in the premises. The petitioners on receipt of notice had submitted an application for leave to contest within a period of 15 days of the service of summons under Section 18A (4) of the Act. A copy of the application for leave to contest has been placed on record as annexure P-1. The facts and circumstances to make out a case that the petition under Section 13-B of the Act is not maintainable as respondent No.1 does not require the same are mentioned in paras 4 (i) to Para 4 (xiii). Respondent No.1 has been described as co-owner in the grounds mentioned in the leave to contest with details of the previous litigation by them with the petitioners. C.R. No. 6140 of 2010 [3] It is important to mention that the leave to contest was filed on March 5, 2010. Thereafter application under Order 6 Rule 17 CPC read with Section 151 CPC was filed by the petitioners seeking to rectify typographical mistake mentioning wrong section in the heading of the application and to incorporated following plea in para 2 of the application for leave to contest:- “That the petitioner is not a Specified NRI Landlord/ Landlady as alleged in the petition for eviction. The petitioner, alongwith her other relatives, are only lease holders under the Union Territory Administration/ Estate Office, Chandigarh. The petitioner and her relatives have limited title as lease holders and cannot claim more rights than permissible to a Lessee (Lessee under Union Territory Administration/ Estate Office, Chandigarh).” Besides this the tenant- petitioners wanted to delete the word ‘co-owners’ in sub-paras (ii), (iv), (v), (vi), (vii) (viii) and (ix) of the application for leave to contest by way of substituting the same with the words ‘lease holders/ lessees under UT Administration/ Estate Office, Chandigarh’. It is further averred that the tenant- petitioners were to add sub paras (xiv), (xv), (xvi) and (xvii) to para 4 after sub-para (xiii) of para 4 of the application for leave to contest. The amended sub-paras which are sought to be incorporated after sub-paras 4 (xiii) reads as follows:- “sub-para (xiv): “(xiv) That the petitioner is one of the lesser in respect of the premises describable as SCO No. 189-191, Sector C.R. No. 6140 of 2010 [4] 17-C, Chandigarh and it is proved from the Lease Deed entered into between the Estate Officer, U.T., Chandigarh and Shri Karambir Singh, Shri Simran Singh Grewal, Smt.Amarjit Kaur, Smt.Samarbir Kaur, Smt.Manjit Kaur and Smt.Maheep Kaur, Smt.Anup Kaur Sidhu. The various clause No. I.11, (2) (3), 4 (a)(b) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (III) in the lease make it absolutely clear that the status of the petitioner is of a co-lessee and she is not the owner of the said SCO and thus, the petitioner is not entitled to invoke the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act. The petitioner is neither the owner or co-owner of the premises.” Sub Para (XV): That the facts stated in the above para of the application are based on sound triable issues of disputed facts which cannot be decided in a summary way and require the parties to lead evidence. The petition for eviction is not supported by filing a detailed affidavit as per the mandatory requirement of Order 67 Rule 15 CPC and Order 19 Rule 3 CPC. Similarly, the petitioner/ landlady is guilty of mis-statement of facts with malafide intention to seek eviction by way of gross abuse of summary procedure. The petitioner has not pleaded the C.R. No. 6140 of 2010 [5] necessary requirement and ingredients of law as laid down by its judgment reported in 2010 (1) RCR 16. As such, the petition for eviction deserves dismissal. Sub Para (XVI): That a perusal of the petition spells out that the petitioner has alleged that the premises is required for her use as well as additionally for the use of her son, Brajesh Inder Singh. It is pertinent to mention that the husband of the petitioner S.Rabinder Singh has also filed petitions under Section 13-B of the East Punjab Urban Rent Restriction Act for the ejectment of the tenants in SCO NO.45-46, Sector 17-C, Chandigarh for the requirement of his son Brajesh Inder Singh. S. Rabinder Singh, husband of the petitioner, has filed eight rent petitions under Section 13-B of the East Punjab Urban Rent Restriction Act against the various tenants and has stated in the petition as under:- “Now the son of the petitioner namely Brajesh Inder Singh has completed his engineering from Kings College, London in the year 1996. The son of the petitioner has gained valuable experience of the above said business being carried on by the petitioner and is now capable of handling the said business independently. The said business has C.R. No. 6140 of 2010 [6] potential in Punjab, Haryana and other parts of this country and thus the petitioner has decided to start the said business in India and to set up his office, showroom, godown, design, planning and administrative office in the entire SCO NO.45-46, Sector 17-C, Chandigarh. The petitioner has decided to use the basement as storage for equipment required in execution of the job and for storage of minor tools. The ground floor would be used as a showroom for the display of technology by photographs etc. The first floor would be used by the administrative staff and second floor would be used for design and administrative office and 3rd and 4th floor would be used for the display of solar systems and equipments and technology and display of heating and cooling equipments etc. The petitioner has already acquired substantial space in the periphery of Chandigarh Town for using it as a workshop and for parking of heavy machinery and trucks etc. by making investment. Earlier the petitioner thought that the basement, second floor and first floor would meet the requirement of the new venture to be set up by the petitioner and his son but now the petitioner C.R. No. 6140 of 2010 [7] realizes that the business cannot be set up or started aggressively without having the entire building and the possession of the entire building would definitely give a boost to the business to be set up. It is relevant to submit and state that the petitioner already deals in Kaulalampur, Malaysia worth million of US dollars and the same amount of machinery would be required for effective expansion of business in India which affords at very bright future for the business. The petitioner and his son have sufficient funds for investment in the said business. In the above said circumstances, the petitioner filed few petitions against the occupants of basement, ground floor and first floor on the ground of personal requirement as detailed above. These petitions are pending before various Courts. These petitions were filed when the petitioner did not have the benefit of availing the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act for gaining the immediate possession of the tendered premises and since that provisions have now been extended to the Union Territory of Chandigarh vide notification dated 9.10.2009, therefore, the C.R. No. 6140 of 2010 [8] present petition for gaining immediate possession of the tenanted premises. The petitioner’s son would be permanently stationed at Chandigarh where he already owns a house in Sector 2-A, Chandigarh. The petitioner would keep commuting very frequently almost each month for the above said purpose and, therefore, a right has accrued to the petitioner for immediate possession of the tenanted premises. Hence this petition.” That a perusal of the present case as well as the cases filed by the husband of the petitioner reveals that the petitioner has misused the provisions of Section 13-B of the Rent Act. Therefore, the present petition filed by the petitioner is tainted and malafide. The petitioner has no requirement whatsoever and by sheer falsehood and malafide considerations, the petitioner has tried to put the requirement of her son in respect of this building also. The pleadings in the present case are totally de- horse to the pleadings in the petitions filed by the husband of the petitioner against various tenant under Section 13-B of the East Punjab Urban Rent Restriction Act. SUB PARA (XVII): C.R. No. 6140 of 2010 [9] That the petitioner is not an NRI but is a resident of Chandigarh and is registered as a Voter in Chandigarh and even otherwise the provisions of Section 13-B of the East Punjab Urban Rent Restriction Act are not applicable to her.” Alongwith the amended application for leave to contest permission was sought to place on record amended affidavit in support of proposed amendment for leave to contest claiming that the proposed amendments were necessary to bring on record the real facts regarding ‘lease-hold title of the land-lady and her ineligibility to invoke the provisions of Section 13-B of the Act. The application was seriously contested by the landlady- respondent No.1 taking up the plea that the application filed by the petitioners was time barred as leave to contest apply only within a period of 15 days from the date of summons and that the provisions of Order 6 Rule 17 CPC or Section 151 CPC or Section 5 of the Limitation Act have no applicability to the proceedings under Section 13-B of the Act. The Rent Act is a Code in itself there being no provisions for the amendment, the leave to contest could not be amended. In the reply it was clarified that the petitioners had admitted the respondent as landlady and owner of the building in dispute in earlier litigation and that she requires the building for her need and for the need of her son. On merits, the amendments sought have been claimed to be uncalled for as against the admissions of the tenant- petitioners having been made in the lease deed as well as in the pleadings of the decided cases between the parties. It was C.R. No. 6140 of 2010 [10] pleaded that the petitioners are estopped by their act and conduct to seek the alleged amendment. The application for amendment has been filed to prolong the final proceedings and to frustrate the provisions of Section 13-B of the Act, besides being malafide. The Rent Controller dismissed the application for amendment of the leave to contest on the following grounds:- i) The tenant wants to amend the sub-paras 4 (ii), (iv), (v), (vi), (vii), (viii) and (ix) of the application for leave to contest by deleting the word ‘co- owners’ to substitute the same with the words “lease holders/ lessees under UT Administration/ Estate Office, Chandigarh” but as a matter of record the lease deed is executed between the Estate Office, U.T. Administration and Karambir Singh, Simran Singh Grewal, Amarjit Kaur etc. and it was admitted that the landlady who has filed the petition is one of the co-owner of the building in question as such the petitioners cannot be permitted to deny the relationship of landlord and tenant having admitted the status of respondent as landlord in earlier round of litigation; ii) It cannot be believed that certain documents came to the knowledge of the tenant just before filing of the petition for amendment of the leave to contest C.R. No. 6140 of 2010 [11] when the parties are already litigating prior to 1984. It cannot be presumed that the documents were inspected in the record of Estate Office, Chandigarh, reflecting the landlord as co-lessee of U.T. Administration; iii) It cannot be said that the tenants are not aware of the fact that the property in question is a lease- hold property when both the parties are litigating since 30 years. By amendment application the petitioners wants to add new version which is not required to be adjudicated in the present case; iv) The petitioners have failed to describe as to how and in what manner the proposed amendment is necessary for proper adjudication of the matter in controversy. Learned counsel for the petitioners Mr.A.K. Chopra has contended that the application for leave to contest was filed on March 5, 2010 and reply to the application for leave to contest had been filed by the respondent- landlady on April 6, 2010. The application for amendment was filed on April 8, 2010 on account of the reason that on March 9, 2010 after the date of application for filing of leave to contest, the husband of landlady filed eight petitions under Section 13-B of the Act against other tenants in SCO No.45-46, Sector 17-C, Chandigarh being NRI. A copy of the petition filed by the husband of respondent under Section 13-B of the Rent Act has C.R. No. 6140 of 2010 [12] been placed on record as annexure P-2 titled Ravinder Singh Vs. Ravi Parkash. The said petition seems to have been numbered as RC No.435 of March 17, 2010. The factum of husband of respondent having filed similar petitions for ejectment on the similar grounds of personal requirement and the requirement of the same son taking up the same ground would go a long way to show that requirement of the landlord is not genuine or bonafide. He has also argued that it is only an “owner” or a “co-owner” of a building who can file a petition under Section 13-B of the Rent Act as the legislation has in its wisdom specifically mentioned in para 13 (b) (1) that an owner who is non-resident of India on his return to India can file a petition to recover immediate possession of residential schedule or non- residential building in case it has been let out by him or the same is required for his/ her use and the said right has been made available only after a period of five years from the date of becoming owner of such building. Petitioners have come to know from the record of Estate Office that respondent No.1 is not an owner but only a lease holder. The amendment is necessary for the fair adjudication of the controversy for determining the real question of controversy between the parties. On the other hand, Mr.S.N. Chopra, Advocate for respondent No.1 has vehemently opposed the contentions of counsel for the petitioners to contend that permitting the petitioners- tenant to amend the application for leave to contest would tentamount to extend the period of limitation of 15 days prescribed under the statute causing prejudice to the respondent- landlord. He referred to Om Parkash Vs. Ashwani Kumar Bassi, 2010 (2) C.R. No. 6140 of 2010 [13] RCR 244, Sham Sunder Arora Vs. Kartar Singh, 2011 (1) RCR (Civil) 904 and Prithipal Singh Vs. Satpal Singh (dead) through its LRs, 2010 (1) RCR (Rent) 53, to contend that Sections 13A, 13B, 18, 18A and 18B constitute complete Code and there is no provisions for allowing amendment. In the said judgments it has been laid down that Rent Act confer no power on the Rent Controller to condone the delay in filing the application for leave to defend. The delay cannot be condoned under Section 5 of the Limitation Act or under CPC. Besides this, it was argued that the amendments sought are irrelevant for the decision of a petition under Section 13-B of the Rent Act. I have heard counsel for the petitioners as well as counsel for respondent No.1 at length and considered the arguments carefully in context to the plea taken by respondent No.1 in her petition under Section 13-B of the Act claiming eviction of the petitioners under Section 13-B of the Act, a special provision to recover immediate possession of the building being owner as NRI having let out the building claiming that the same is required for her use and for her son who ordinarily resides with her. It is not disputed that the petitioners had filed application for leave to contest under Section 18A (4) of the Act within a period of 15 days, i.e. on March 5, 2010. By way of amendment the petitioner- tenants seek to incorporate the factum of filing of eight petitions by the husband of respondent No.1 under Section 13(4)B of the Act claiming that he required the other building for the same ground i.e. for running his business alongwith the same son who is ordinarily residing with her wife. The subsequent events are sought to be C.R. No. 6140 of 2010 [14] incorporated. Admittedly, the ejectment petitions were filed by the husband of respondent No.1 on similar grounds after March 5, 2010. There was no occasion for the petitioners to incorporate the facts which came into existence subsequent to filing of the application for leave to contest. Whether the subsequent facts, which came into existence after filing of the application for leave to contest, would entitle the petitioners to get leave to contest, is not relevant at the time of permitting the petitioners to place on record the facts. It is only at the time of the adjudication of the application and affidavit attached with the application for leave to contest under Section 18 B (4) of the Act, the Court has to form an opinion whether the application to leave to contest discloses any such facts, as would disentitle an NRI for obtaining the orders of recovery of possession of the building in dispute. There is no dispute regarding the law laid down in the judgments of Om Parkash’s case (supra), Sham Sunder Arora’s case (supra) and Prithipal Singh’s case (supra) that application under Section 5 of the Limitation Act for condonation of delay cannot be allowed by Rent Controller while considering application for leave to contest and that Rent Controller has no jurisdiction to condone the delay, but the ratio of the said judgments is not applicable to the facts of the present case. In view of the fact that the application for leave to contest had been filed by the petitioners within the stipulated period but the facts which are sought to be incorporated in the petition for amendment of the application for leave to contest either came into existence after the filing of the petition for leave to contest or the same came to the knowledge of the petitioners subsequently. C.R. No. 6140 of 2010 [15] Though the provisions of Order 6 Rule 17 CPC are not strictly applicable in proceedings before the Rent Controller, but the broad principles of CPC apply to the proceedings. I am of the considered opinion that the law of amendments of pleadings is to achieve the ends of justice and to enable the Courts to determine the real question of controversy between the parties in all times to come. The amendments should generally be allowed if two conditions are fulfilled, i.e. amendments sought are (a) not working to the injustice to the other side; and (b) necessary for the purpose of determining the real question in controversy between the parties. In the present case, the reply to the application for leave to contest was filed by the respondent on April 6, 2010 whereas the application for amendment was filed immediately within a period of two days i.e. on April 8, 2010 by the tenant- petitioners. The amendment has been sought only on the grounds that there have been subsequent developments which are necessary for the just decision of the application for leave to contest. I do not find any force in the contention of Mr.S.N. Chopra that on account of absence of any specific provision for amendment of an application for leave to contest under Section 18 B of the Act, no opportunity should be granted to a tenant to seek the amendment of leave to defend under any circumstances. If there are subsequent events which have taken place and which may have bearing on the outcome of the eviction petition, the amendment can be permitted. I am of the considered opinion that if the subsequent events are not permitted to be pleaded in the C.R. No. 6140 of 2010 [16] application seeking leave to contest which was originally filed, it would not only deprive a Court from considering whether the material incorporated on the basis of the subsequent events is relevant for the adjudication of the application for leave to contest but would prevent a party to bring true facts to the notice of the Court. A similar question had arisen before Delhi High Court in case Ved Parkash Jain Vs. Om Parkash Jain, in C.M. No. 759 of 2009, decided on August 7, 2009 where a Rent Controller exercising powers under Delhi Rent Controller Act dismissed the application seeking amendment of leave to defend which had actually preferred within 15 days of service of notice on the ground that summary procedure evolved to try petition under Section 14 (1) (e) of the Delhi Rent Controller Act does not provide for amendment of the application seeking leave to defend. It was held as follows:- “3. In my view, the interpretation given by the learned ARC is not entirely correct. It cannot be said that no amendment in the application seeking leave to defend can be granted under any circumstance. If there are subsequent developments which have taken place, and which may have a bearing on the outcome of the eviction petition, the amendment can be allowed in a given case. This is for the reason that subsequent developments cannot possibly be pleaded in the application seeking leave to defend, when it is originally filed. But before allowing an amendment application which seeks to C.R. No. 6140 of 2010 [17] incorporate material subsequent developments, the Court would also examine whether the same has been filed with equal expedition with which the original application seeking leave to defend is required to be filed. If the application seeking the amendment is filed much after the subsequent developments have taken place, the Court would be C.M. (M) No.759/2009 Page 2 of 7 justified in rejecting the same as being barred by delay and laches. The tenant should act with the