IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CASE NO.: C.R. No.664 of 2008 DATE OF DECISION : April 27, 2009 Smt. Bharti Gupta ....... Petitioner versus Smt. Kunti Devi and others ......Respondents CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: Mr. Aman Bahri, Advocate for the petitioner. None for the respondents. NIRMALJIT KAUR, J. Petitioner Bharti Gupta wife of Deep Chand Gupta is the landlord. She filed Ejectment Petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 against respondent-Manohar Lal on 31-07-2001. Deputy Lal-respondent No.2 is the brother of Manohar Lal. The said ejectment petition was dismissed by the Rent Controller, Ambala Cantt. vide judgment dated 18-11-2004. During the pendency of appeal before the Appellate Authority, both the respondents died and their Legal Representatives now stand impleaded as the necessary respondents. Aggrieved, the petitioner filed an appeal against the said judgment before the Appellate Authority. The said appeal was dismissed vide judgment dated 12-10-2007. Hence, the present revision petition. C.R. No.664 of 2008 -2- The petitioner while preferring an appeal against the impugned judgment dated 18-11-2004 passed by the Rent Controller, Ambala also moved an application :- (a) under Order 47 Rules 1 and 2 for leading additional evidence. (b) Under order 6 Rule 17 for amendment of the pleadings. (c) for review of the order dated 03-05-2006, whereby, the applications for impleading of legal heirs of Manohar Lal and Deputy Lal was previously allowed by the Appellate Authority. The Appellate Authority dismissed the main appeal as well as the three applications vide two separate orders of even date i.e. 12-10-2007. The petitioner, herein, now before the Revision Petition, has challenged the impugned judgment dated 12-10-2007 as well as the order dated 12-10-2007 dismissing three miscellaneous applications. The first argument raised in the revision petition is that Manohar Lal, the respondent had sub-let the demised premises to Surinder Kumar Negi and Brij Mohan without permission of the landlord i.e. the petitioner. It is further stated that although, the petitioner had taken the ground of sub-let, she could not mention the name of sub-tenant and also did not have the relevant document which would prove sub-tenancy. It is submitted that as soon as the petitioner came to know the names of the sub-tenants, the same was brought to the knowledge of the Appellate Authority along with the mode to prove the same i.e. the record of the Sales Tax Department and the said document came to the knowledge of the petitioner only during the course of proceedings when applications for impleading Legal Representatives of Manohar Lal and Deputy Lal were C.R. No.664 of 2008 -3- under consideration of the Appellate Authority. He, accordingly, moved an application for leading additional evidence by summoning the record of the Sales Tax Department to prove that the deceased-respondent Manohar Lal had sub-let the demised premise to Brij Mohan and Surinder Kumar Negi. This document showed the names of the three partners of firm “Basant Scientific Glass Works”, namely, Manohar Lal, Brij Mohan and Surinder Kumar Negi. They had given the same address of Shop No.4254/1 i.e. the address of demised premises but the said application was dismissed. Learned counsel for the petitioner vehemently argued that the record of the Sales Tax Department was relevant and would have clearly established that Manohar Lal had sub-let the demised premises to Surinder Kumar and Brij Mohan without permission of the petitioner-landlord. However, the Appellate Authority ignored the factual position and has blamed the petitioner for not being diligent as the documents proposed to be led as additional evidence was an old document existing even prior to the filing of the rent petition. After hearing, I find merit in the submissions made by learned counsel for the petitioner and the revision petition, therefore, deserves to be partly accepted. The petitioner, in the revision petition has also prayed for setting aside the order dated 12-10-2007 vide which the application dated 18-09-2006 for additional evidence on behalf of the appellant-Bharti Gupta and application dated 30-11-2006 for amendment of the pleadings under Order 6, Rule 17 CPC was dismissed. For proper adjudication of the matter, it is first necessary to examine the order dated C.R. No.664 of 2008 -4- 12-10-2007 vide which the above three applications have been decided. Taking up the order qua the application for review of the order dated 03-05-2006, I find that the said application was rightly dismissed and in fact the Legal Representatives of respondents were rightly allowed to be brought on record as the Legal Representatives have a statutory right to defend the case and there was not merit in the review petition seeking review of the order. Taking up the dismissal of application dated 18-09-2006 seeking permission to lead evidence, the same deserves to be set aside. On the death of the respondents Deputy Lal and Manohar Lal when the applications for impleading Legal Representatives of Manohar Lal and Deputy Lal were under consideration of the Appellate Authority, it came to the knowledge of the petitioner that the deceased respondent-Manohar Lal had sub-let the demised premises to Brij Mohan and Surinder Kumar Negi. For this, the petitioner wished to lead evidence for production of record of Sales Tax Department, which was earlier not within her knowledge and on that account, could not be produced before the Trial Court. This application was, however, dismissed on the ground that since the same came into existence in the year 1966, the same should have been placed on record as it was available when the ejectment petition was instituted in 2001. Further, since the Rent Deed (Exhibit P-1) dated 11-08-1971 admits Manohar Lal and his brother Deputy Lal to be the tenants of the premises, thus a partnership firm over said premises along with his son Brij Mohan and brother Surinder Kumar prior to the purchase of premises by present appellant in 1981, then it cannot be a case of C.R. No.664 of 2008 -5- subletting by Manohar Lal in favour of his son and brother. Further, the petitioner had not mentioned the name of the sub-tenant in her ejectment petition. It is not understood as to how the Appellate Court came to the conclusion that there was no sub-letting inspite of the fact that the petitioner had not even been allowed to lead evidence to prove otherwise. Moreover, dismissing the application for additional evidence on the ground that the document came into existence in the year 1966, also appears to be factually incorrect on the face of it. A perusal of this document which is placed on file as P-1 shows that 24-11-1966 is the date of validity of the document while the date of the liability is 22-12-1996. Thereby, prima-facie, it appears that although P/1 already existed, the partners Brij Mohan and Surinder Kumar Negi were inducted subsequently in the already existing document. The question whether the same would amount to sub-letting or not, was a matter of evidence which was being sought to be produced and proved through the additional evidence. The same not having been allowed, the Appellate Authority erred in coming to a conclusion that there was no sub-letting and this conclusion was arrived while deciding the application for additional evidence. Thus, from the pleadings, it follows : (a) the names of the tenants were not available with the petitioner at the time of the institution of the suit. (b) admittedly the ground of sub-letting was duly taken in the ejectment petition although the detail of the tenant was not known. (c) the said information came to the knowledge of the petitioner only when the application to implead the legal heirs of the respondents - Manohar Lal and C.R. No.664 of 2008 -6- Deputy Lal was instituted. (d) the application for leading additional evidence was moved before the Appellate Authority immediately from the date of the knowledge. In view of the above, I find that the judgment relied on by the Appellate Authority, do not apply in the facts of the present case and it does not amount to lack of due diligence. In the circumstances, the order dated 12-10-2007 is set aside to the extent vide which the application for leading additional evidence was rejected and the petitioner is, accordingly, allowed to lead additional evidence, as prayed for, in this application. In view of this, application under Order 47 Rules 1 and 2 of the C.P.C. for leading additional evidence, is accepted. In view of the permission to lead additional evidence having been allowed, the third application under Order 6 Rule 17 CPC vide which the permission to amend the pleadings was sought, also deserves to be allowed as through this application, the petitioner wishes to add certain clarification to elaborate the plea of sub-letting. One of the ground while dismissing the application was that the petitioner nowhere suggested as to whom the shop, in question, is sub-let by her and that there was no specific plea and proof of sub-letting. It is an admitted position that the petitioner had taken specific ground of sub-letting in the existing pleadings although the names to whom the same was sub-let could not be provided. Thus, to reject on the ground that she was not able to prove sub-letting at that stage, cannot be accepted, in view of the fact that the petitioner was not allowed to lead additional evidence to prove this point. In view of the application for leading additional evidence on the point of sub-letting having been allowed, the application seeking permission to amend the pleadings under Order 6 Rule 17 CPC which only elaborate the pleadings of the sub-letting itself will accordingly, have to be also allowed. Thus the C.R. No.664 of 2008 -7- order dated 12-10-2007 to the extent vide which the application under Order 6 Rule 17 CPC was dismissed, is set aside and the petitioner is allowed to amend the pleadings, as prayed for, in the application. Once the order to the extent vide which these two applications under Order 47 Rules 1 and 2 of C.P.C. for leading additional evidence and Order 6 Rule 17 of the C.P.C. amending the pleadings is allowed, the revision petition against the judgment dated 12-10-2007 vide which the appeal of the petitioner against judgment dated 18-11-2004 passed by the Rent Controller was dismissed, will have to be partly allowed to the extent that the judgment dated 12-10-2007 passed by the Appellate Authority, Ambala is set aside and the matter is remanded back to the Appellate Authority, Ambala to decide the matter afresh after allowing the petitioner to amend the pleadings and lead additional evidence only as prayed for in the application under Order 47 Rules 1 and 2 dated 30-11-2006. The appeal shall be finally disposed of within six months after granting two opportunities to lead the additional evidence with equal number of opportunities to the respondents for rebuttal evidence. The petitioner, respondents and their counsel to appear before the Appellate Authority on 11-05-2009. Nothing said in the present judgment will have any bearing on the merits of the case. (NIRMALJIT KAUR) JUDGE April 27, 2009 gurpreet