Advance Steel Tubes Ltd v. Sk Agarwal

V.B. GUPTA, J. 16th July, 2010/RB

* HIGH COURT OF DELHI : NEW DELHI CM (M) No.875/2010 & CM No.12028/2010 % Judgment reserved on: 13th July, 2010 Judgment delivered on: 16th July, 2010 M/s. Advance Steel Tubes Limited Shyam Bhawan 15/1, 3rd Floor (Front Portion) Asaf Ali Road New Delhi-110012 Also at 81, Functional Industrial Estate Patparganj, Delhi-110092 Represented by its authorised representative Sri. Subash Chand Jain ….Petitioner. Through: Mr. J.P. Singh, Sr. Adv. with Mr. Sumeet Batra and Mr. Jogy Scaria, Advs. Versus S.K. Aggarwal W/o. Late L.S. Agarwal 30B, Malcha Marg New Delhi-110021 ….Respondent. Through: Nemo. Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Petitioner has filed the present petition under Article 227 of the Constirution of India, challenging order dated 1st June, 2010 passed by Additional District Judge, Delhi, vide which application of petitioner under Order 6 Rule 17 of Code of Civil Procedure (for short as "Code") for amendment of written statement was dismissed. 2. Brief facts of this case are that respondent herein filed a suit for recovery of possession, arrears of rent, damages and future mesne profits/damages against the petitioner. Para 1 of the plaint reads as under; "That the plaintiff is the absolute owner and landlady of the property bearing No.15/1, Asaf Ali Road, New Delhi-110002" 3. Para 2 of the plaint among other things states; "That the defendant is a tenant of the plaintiff in respect of the front portion on the third floor of property bearing No.15/1, Asaf Ali Road, New Delhi-110002." 4. Petitioner in its written statement in reply to para 1 of the plaint states; "That the averments in Para No.1 of the plaint is a matter of record and hence the same does not warrant any reply from the defendant." 5. While in reply to para-2 of the plaint among other things, petitioner states; "That relation between the plaintiff and defendants are governed by the lease deed dated 1st August, 1993." 6. Petitioner moved an application before the trial court for amendment of the written statement and wanted to incorporate following paras, after para 2 of the preliminary objection of his written statement, as paras 2A, 2B, 2C, 2D and 2E; "2A) That the present suit filed by the plaintiff is bad for non-joinder of necessary parties and as such the plaint is liable to be dismissed on that ground itself. The defendant has entered into the agreement for lease dated 1.8.1993, for leasing the plaint schedule property with Mrs. S.K. Aggarwal and Mr. Harsh Kumar Aggarwal. At the time of entering into the agreement the defendant was represented by both Mrs. S.K. Aggarwal and Mr. Harsh Kumar Aggarwal that they are the owners of the plaint schedule property and accordingly the defendant has entered into the said lease agreement. That the defendant has been paying the rent of the suit property in the name of the plaintiff on the basis of the admission of Mr. Harsh Kumar Aggarwal that the rent may be paid in the name of S.K. Aggarwal. 2B) That the plaintiff has filed the present suit only in her name. She has not mentioned anywhere in the plaint that she is representing Mr. Harsh Kumar Aggarwal who is also one of the owners of the property and that she is filing the present suit on and behalf of the other owner also. The plaintiff has rather tried to put forth in the plaint that she is the absolute owner of the property. The fact that Mr. Harsh Kumar Aggarwal is also the owner of the property is evident from the lease agreement dated 1/8/1993 wherein it has been explicitly mentioned that the lessors are the joint owners and accordingly Mr. Harsh Kumar Aggarwal entered into the agreement for leasing the property with the defendant and also that the understanding permitting the defendant to continue in the property was made between him. 2C) That the plaintiff h