Prem Chand v. Subhash Chand Saini & Ors

VEENA BIRBAL,J May 28, 2008 kks

* IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on : 29th April, 2008 % Date of Decision: 28th May, 2008 + CM(M) 444/2008 & CM No. 5297/2008 # PREM CHAND ..... Petitioner ! Through : Mr. R.D. Sharma with Ms.Vandana Bedi, Advocates. versus $ SUBHASH CHAND SAINI & ORS. ..... Respondent ^ Through : None. * CORAM: HON'BLE MS. JUSTICE VEENA BIRBAL 1. Whether the reporters of local papers may be allowed to see the judgment? 2. Whether the judgment be referred to the reporter or not?yes 3. Whether the judgment should be reported in the digest? yes Veena Birbal, J. 1. Present petition is directed against the impugned order passed by Ld. Additional Rent Controller dated 12.02.2008 allowing the application of respondent/landlord for amendment of eviction petition which was originally filed on the ground of non-payment of rent. 2. Respondent/landlord has filed a petition under Section 14(1)(a) of Delhi Rent Control Act, (hereinafter referred to as "the Act") against petitioner/tenant seeking eviction of the tenanted premises. It is stated that the tenanted premises is situated in slum area. Before filing petition, respondent/landlord obtained permission from competent authority (Slum) vide order dated 07.07.2005. After obtaining the permission, a petition under Section 14(1)(a) of DRC Act was filed. During the pendency of the said eviction petition, respondent/landlord moved an application under Order 6 Rule 17 read with Section 151 CPC praying for amendment of the eviction petition by adding alleged ground of sub-letting of the tenanted premises by petitioner/tenant to one Sh. Raju and thus prayed eviction on the ground of sub-letting also. The said amendment application was opposed by the petitioner/landlord on the ground that there is no sub-letting as is alleged and that the case is at the stage of respondent/landlord's evidence and as such, it was not the stage to seek amendment. 3. Learned ARC by observing that the alleged ground of sub- letting was a subsequent event and had come to the knowledge of the respondent/landlord only after filing of the eviction petition and that respondent/tenant has tendered affidavit of one witness in evidence who is yet to be cross-examined, allowed the amendment application. Aggrieved with the same, present petition is filed. 4. Learned counsel for petitioner/tenant has contended that amendment of existing eviction petition is not permissible as the alleged ground of sub-letting was a fresh cause of action and respondent ought to have filed a separate eviction petition. It is further contended that learned ARC bypassed the provisions of Order 6 Rule 17 of CPC. It is contended that by the Code of Civil Procedure Amendment Act, 22 of 2002, a proviso has been added to Order 6 Rule 17 of CPC by which no application for amendment shall be allowed after the trial has commenced unless court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. In support of his contention, learned counsel has relied upon the following judgments : Salem Advocate Bar Association, Tamil Nadu v. Union of India reported in AIR 2005 Supreme Court 3353 and Ajendraprasadji N. Pande & Anr. v. Swami Keshavprakeshdasji N. & Ors. reported in AIR 2007 Supreme Court 806. 5. As far as contention of petitioner that alleged ground of subletting should not have been allowed as it is a new cause of action and respondent/landlord ought to have filed a separate petition, this particular point is well settled in view of the Full Bench Judgment of this court in the case of Abnash Kaur vs. Dr. Avinash Nayyor & Ors. reported in 10(1974) DLT 270 wherein it is held that there is no inflexible rule that a cause of action arising subsequent to the filing of petition for eviction cannot be added in the petition by way of amendment. The relevant para of the judgment is reproduced below : "(24). In the light of the above discussion, we answer the question referred to us in