W ///Q é é ((gé(A”“55/ 'D IN THE HIGH COURT OF CHHATI'ISGARH AT BILASPUR ‘(C.G.) ’ $‘mgia mw% UNDER SECTION‘w‘gé'o'F cdDE OF CIVIL PROCEDURE 1908 F A No i 3“ [2008 APPELLANTS DEFEN DANTS l Smt. Tara Bai aged about e“ 55 years, W/o. Late Dr. J.L. Arya, R/o. Near Masjid, Juna Bilaspur city Tah. & Distt. Bilaspur (C.G.) Aparna Malviya, aged W“ about 30 years, D/o Late Dr. J.L. Arya, R/o Arya Eye CHnic, Present Address:a Arya Seva Kendra, High Court Road, Adarsh Colony City, Tah. & Distt Bilaspur (C.G.) VERSUS y” w WM .... Valuation of the suit -Rs. 56,648/- Court fee paid Rs. 6640/- Valuation of appeal—do Court fee paid~do . RESPONDENTS : 1. Ramandas Pamnani S/o. PLAINTIFF V” Sabhasomal, aged about 87 years, R/o. High Court Road Adarsha Colony, City, Tah. & Distt. Biiaspur (C.G.) 2. Sudarshan Jaiswal, aged y about 30 years, S/o. Sampat Lai, Teacher D.A.B Public School, S.E.C.L. City, Tah. & Distt. Bilaspur (C.G.) 3 Rigu/Jaiswal, Advocate, § aged about 45 years S/o. Notanown, Occupation Advocate, R/o. High Court Road, City Tah '& Distt. Bilaspur (C.G.) HIGH COURT OF CHHATTISGARH AT BILASPUR ice Prashant Ku Mish Single Bench: Ho’ble Shri J First AQQeal No.136 of 2008 Smt. Tara Bai and another versus Ramandas Pamnani and others JUDGMENT Post for 7-1 0-201 O Sdl— ‘ Pras'nam kumar Mlshra Judge t mar ra n us @ HIGH COURT OF CHHATTISGARH AT BILASPUR Slnqle Bench Hon’ble Shri Justice Prashant Kumar Mishra First Appe'al No.136 of 2008 Shn Pramod Verma Senior Advocate wrth Shn Sumlt Verma counsel for the appellants Shn Sanjay K Agrawal counsel for respondent No 1 None for other respondents First Appeal under Section 96 of the Code of Civil Procedure, 1908 JUDGMENT (Delivered on (W‘october, 2010) Defendants No.1 and 2 in the suit have preferred this appeal under Section 96 of the Code of Civil Procedure, 1908 (henceforth ‘the Code’) calling in question the judgment and decree dated 26-7- 2008 for eviction passed by the trial Court on the ground of sub— letting under Section 12(1)(b) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth ‘the Act’). 2. Case of the plaintiff/respondent No.1, in short, was that the suit shop and the room behind the shop were let out to Dr. J.L.Arya, the late husband of defendant No.1 and father of defendant No.2, on monthly rent, the present rent being Rs.1 ,728/- per month. Tenancy was terminated with effect from 31-1-2006 by legal notice dated 20- 12-2005, as in spite of repeated requests, the tenant failed to vacate the premises. Dr. J.L.Arya died on 15—11-2004 and the eye-clinic Appellants Smt. Tara Bai and another versus Respondents Ramandas Pamnani others Present operated by him from the suit premises has been closed since thereafter. The plaintiff needs the premises for opening his shop, he being old, is facing dimcuity to ciimb steps to reach upto first floor where he is presently staying. it was also pleaded that his grand son shall open a Computer-Typing, Photo-Copy, STD—PCO and Stationery Shop in the suit premises for which he needs the premises. 3. It was pleaded in the plaint that the premises has been illegally sub—let to one R.K.Jaiswal, Advocate and on this ground also, the plaintiff is entitled to a decree. 4. The defendants denied the entire plaint allegations in general terms. 5. The trial Court has refused to pass a decree on the ground of bona fide requirement under Section 12(1)(f) of the Act, however, it has been found that defendants No.1 and 2/appellants have illegally sub-let the premises to defendants No.3 and 4, therefore, the plaintiff is entitled to a decree under Section 12(1 )(b) of the Act. 6. The sole point in this appeal is whether in view of the pleadings and evidence on record, the ground of‘sub—letting is established or not. 7. Shri Pramod Verma, learned Senior Advocate with Shri Sumit Verma, learned counsel appearing for the appellants/defendants V No.1 and 2 has argued that the plaintiff has failed to prove and 3 @ establish ground under Section 1 2(1)(b) of the Act and the impugned judgment and decree cannot be sustained. 8. Per contra, Shri Sanjay K. Agrawal, learned counsel appearing for respondent No.1/plaintiff has argued that the ground under Section 12(1)(b) of the Act has been fuliy proved and no interference in the impugned judgment and decree is called for. Learned counsel would further submit that the pleadings made in paragraph 9 of the plaint remains untraversed or uncontroverted in the written statement in specific terms and thus the pleadings regarding sub-letting should be deemed to have been admitted and thus the trial Court has not committed any error in decreeing the suit on the ground of sub-letting. 9. Before proceeding to examine the merits of the rival contentions, this Court would take up the application filed by the appellants under Order 6 Rule 17 of the Code to amend the written statement. This appeal was heard finally on 3-8-2010 and was reserved for delivery of judgment. The appellants/defendants No.1 and 2 thereafter moved i.A.No.3 dated 6—8—2010 on 9-8-2010 under Order 6 Rule 17 read with Section 151 of the Code for permission to amend their written statement. The matter was mentioned for listing of the case for hearing on l.A.No.3. On 16-8-2010, the matter was listed for consideration of l.A.No.3. Respondent No.1/plaintiff sought time to file reply and thereafter it was directed by this Court in its order dated 27—8—2010 that the amendment application shall be /decided along with this appeal. 10. In the application for amendment of written statement, it has been stated that after the plaintiff amended his plaint to plead ground of sub-letting vis-a-vis defendant No.4 R.K.Jaiswal, the defendants, by inadvertence, coutd not make consequential amendment specifically denying the said ground of sub-letting. ln course of fmal arguments, defendants No.1 and 2/appellants realized the mistake and, therefore, the prayer for amendment is made. Respondent No.1/plaintiff has contested the application by filing his reply inter a/ia submitting that the application has been filed at belated stage when the matter was reserved forjudgment and the same has been filed to tilt up the iacunas and that in view of the proviso to Rule 17 of Order 6 of the Code, prayer for amendment in the pleadings after commencement of trial is not permissible. He would also submit that the amendment is not bona fide and amounts to withdrawal of admission made which is not permissible in law. 11. In the matter of Vidyabai and others vs. Padmalatha and another, (2009) 2 SCC 409, the Hon’ble Supreme Court has held that prayer for amendment after commencement of trial cannot be allowed as the proviso appended to Rule 17 of Order 6 of the Code creates a jurisdictional embargo on the exercise of jurisdiction under Order 6 Rule 17 of the Code. it has been held therein that amendment can be allowed after commencement of trial only in such cases where the party seeking leave to amend satisfies the Court that he could not have raised the pleading before commencement of trial in spite of due diligence. In the present case, the ”appellants/defendants No.1 and 2 have not stated as to how they @ were prevented or were not in a position to raise the pleading before commencement of triai. in the absence of any such statement made in the application, this Court is not inclined to allow the application for amendment in the written statement in View of the jurisdictionai embargo contained in the proviso to Rule 17 of Order 6 of the Code. l.A.No.3 is thus dismissed. 12. For examining the contention raised by learned Senior Advocate appearing for the appellants that the plaintiff has failed to establish the ground of sub-letting, the pleading and evidence in this regard need to be scrutinised. In paragraph 9 of the plaint, the plaintiff initially pleaded that the suit premises has been illegally sub- let to defendant No.3 Sudarshan Jaiswal. By amending the plaint with the leave of the trial Court on 3-1 1-2007, it was further pleaded in paragraph 9 of the plaint that defendants No.1 and 2 have illegally sub—let the premises to defendant No.4 R.K.Jaiswal, Advocate, who has hanged a board of his name and thus the defendant No.1 is making illegal profit by sub-letting. Pleading regarding sub-letting has also been made in paragraphs 10 and 12 of the plaint. 13. The said part of the pleading was dealt with in paragraph 9 of the written statement tiled by defendants No.1 and 2. In this paragraph, the said defendants denied the fact of sub-letting to defendant No.3 Sudarshan Jaiswai and it was further denied in general terms that the premises has not been sub-let to any other person, meaning thereby that the said defendants are in occupation of the premises. Thus, it would be apparent that after amendment of /v the plaint with respect to the pleading regarding sub-letting of the premises to defendant No.4 R.K.Jaiswal, the written statement was not amended and that part of the amended plaint remained uncontroverted. 14. Defendant No.4 R.K.Jaiswat, who is an Advocate, filed his written statement and has pleaded that since he was in need of some piace to run his ofhce, he approached defendants No.1 and 2 when the premises was vacated by its eariier occupier Santosh Kumar Gupta and he is paying Rs.1,500/— per month to defendants No.1 and 2. it was further pleaded that when he received notice of the suit in December, he was mentaliy upset and handed over vacant possession to defendants No.1 and 2 on 15—1—2008. In spite of this specific admission by defendant No.4 R.K.Jaiswal in his written statement, which was tiled on 214-2008, defendants No.1 and 2 did not bother to amend their written statement either to specificaiiy deny amended paragraph 9 of the plaint or the statement made by defendant No.4 R.K.Jaiswal in his written statement. It is not to be lost sight of that defendant No.2 Aparna Malviya is also an Advocate. She has also entered the witness—box as DW-1. Her afddavit under Order 18 Rule 4 of the Code was prepared on 16-6— 2008 and she was cross-examined on 24-6—2008. In paragraph 25 of her cross-examination, she admits that Ex.P-32 and EXP-34 to P- 36 are the photographs of the suit shop in which the signboard of R.K.Jaiswal, Advocate, defendant No.4, is visible. She also admits that she was not permitted by the plaintiff to sub-let the premises to any other person. From this statement of DW-1, who is defendant No.2 in the suit, it would be further apparent that the plaintiff’s plea regarding sub-letting of the premises to defendant No.4 R.K.Jaiswal, Advocate was specificaHy put-forth to her in her cross-examination and yet the pleading contained in paragraph 9 of the plaint or in the written statement of defendant No.4 R.K.Jaiswal, Advocate admitting the sub—Ietting, was not denied by amending the written statement. 15. Learned Senior Advocate appearing for the appellants/defendants No.1 and 2 has argued that there appears to be collusion between the plaintiff and defendant No.4 R.K.Jaiswal, . therefore, admission by defendant No.4 about sub-letting cannot be read in evidence. Referring to the statement in the afndavit of PW-2 Satyapal Dembra, sworn on 17-4-2007, containing an averment that the accommodation has been sub-let‘to defendant No.4, whereas the said defendant in his written statement says that he occupied the premises in September, 2007, it has been put-forth that the ground - of sub—letting vis—a-vis defendant No.4 has been cooked-up for the purpose of seeking eviction. 16. In reply to this argument, learned counsel for respondent No.1/plaintiff has stated that defendant No.4 was in fact trying to protect the tenants and, therefore, he has mentioned an incorrect date of his occupation of the premises as a sub-tenant though he was occupying the premises much earlier. He would submit that, in any case, defendant No.4 having accepted the sub-tenancy, the actual beginning of sub-tenancy would not be material. 17. On examining the affidavit of PW-2 Satyapal Dembra, the written statement of defendant No.4 and the photograph EXP—32, ’i this Court would reach to a conclusion that the cnding regarding defendant No.4 having occupied the premises as a sub-tenant is perfectly in accordance with the evidence on record. if PW-2 Satyapai Dembra has mentioned some other date of initiation of sub-tenancy, the same would not demolish the entire pleadings made in the written statement of defendant No.4 and the photographs showing the signboard containing the name of defendant No.4 on the suit shop. 18. Learned Senior Advocate I appearing for the appellants/defendants No.1 and 2 has drawn attention of this Court to the judgments in the matters of Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College and others, AIR 1987 SC 1242 and Smt. Sarla Devi wlo Dwarkaprasad vs. Birendrasingh slo Beni Singh and others, AIR 1961 MP 127 to argue that in the absence of specific pleading, evidence adduced by the parties would not be admissible and that even in the absence of specific denial of a plea, the Court may yet require proof of the fact which is an issue in the suit. On examination of record, this Court is unable to apply the ratio laid down in the said judgments because the pleading made by the plaintiff in paragraph 9 of the plaint is very specific with regard to the illegal sub-letting made by defendants No.1 and 2 in favour of defendant No.4. 19. On the other hand, learned counsel appearing for respondent No.1/plaintiff has drawn attention of the Court to the provisions contained in Section 12(1)(b) read with Section 14 of the Act and the judgments of the Hon’ble Supreme Court in the matters of Joginder Singh Sodhi vs. Amar Kaur, (2005) 1 SCC 31, Vaishakhi Ram and others vs. Sanjeev Kumar Bhatiani,v(2008) 14 SCC 356, Jahuri Sah and others vs. Dwarika Prasad Jhunjhunwala and others, AIR 1967 SC 109, M. Venkataramana Hebbar (Dead) by L.Rs. vs. M. Rajagopal Hebbar and others, (2007) 6 SCC 401, Samir Chandra Das vs. Bibhas Chandra Das and others, (2010) 6 SCC 432 and Vidhyadhar vs. Manikrao and another, (1999) 3 SCC 573 to bring home the point that when a pleading has not been specifically denied in the written statement, it should be deemed to have been admitted and that when a party to the suit does not appear in the witness—box, a presumption would arise that the case set up by him is not correct. 20. Under Section 14(1) of the Act, for holding a sub-letting to be permissible, the tenant is required to prove that the Iandiord has consented for the same in writing. The requirement of proof in the case of sub—ietting has been observed by the Hon’ble Supreme Court in Joginder Singh Sodhi vs. Amar Kaur (supra) in paragraphs 13 and 14 of the report. ln Vaishakhi Ram and others vs. Sanjeev Kumar Bhatiani (supra), it has been held that the initial burden to prove sub-letting is on the landlord but if the landlord proves that the sub—tenant is in exclusive possession of the suit premises, then the onus is shifted on the tenant to prove that it was not a case of sub—Ietting. in the present case, defendant No.1 has not entered the witness-box, defendant No.4 admits the sub- tenancy, EXP-32 is the photograph showing the signboard Vcontaining the name of defendant No.4 on the suit shop. ln g DW wwwwwmmmmmm mmwmm xv ww I@ 10 Vidhyadhar vs. Manikrao and another (supra), the Hon’ble Supreme Court has held that when a party does not offer himself to be cross-examined and does not enter the witness—box, a presumption would arise that the case set up by him is not correct. Thus, in the entirety of the pleadings and evidence available on record, this Court is inclined to hold that the plaintiff has established the ground contained under Section 12(1)(b) of the Act and the finding to this effect recorded by the trial Court is neither perverse nor suffers from any infirmity. \V \ 21. Consequently, the first appeal fails and is hereby dismissed. There shall be no order as to costs. Sd/- Prashant kumar Mishra Judge Gopal