SHIVA RAMA UPADYAYA Vs. RAJA SATYANARAYANA SETTY

JUDGEMENT

(1.) THIS revision is by the defendant in the suit. The petitioner is challenging the order passed by the learned trial Judge on the application, I. A. 2 under Order 6 Rule 17 of the Code of Civil procedure, filed by him seeking permission to amend the written statement to incorporate paras 7 (a) and (b) as stated in the said application.

(2.) THE material facts for the disposal of the revision petition can be stated briefly as under: the plaintiff-respondent laid the present suit for ejectment on the ground that the defendant was in occupation of the suit schedule property on a monthly rent of Rs. 250/ -. The suit schedule property was taken on lease by the defendant for non-residential purpose of running a restaurant. The plaint averments further disclose that in the initial stage the plaintiff had filed an eviction petition against the defendant in the year 1981 seeking eviction of the ground that the suit schedule property in the occupation of the defendant is reasonably and bonafide required for the immediate purpose of demolition and for reconstruction of a building so as to augment income by construction of flats. The eviction petition came to be dismissed. As against the said dismissal of the eviction petition, a rent revision was filed in HRRP 2498/98. This Court granted an order of eviction under Section 21 (1) (j) of the Karnataka Rent Control Act. Against the said order a civil petition also was filed in CP 157/97 for modification of the order and the said order was modified. It is significant to note that during these proceedings the consistent stand of the defendant - petitioner was that he was a tenant of the schedule premises. In the mean time the karnataka Rent Act, 1999 came into force and the proceedings stood abated. Under these circumstances, the present ejectment suit was filed. The present proceedings have been contested by the defendant-petitioner. In para 3 of his written statement, he clearly admitted that he was a tenant in respect of the schedule property of a monthly rent of Rs. 250/- and he was running a restaurant therein. When the matter stood thus, the defendant-petitioner filed an application for amendment of the written statement, inter alia, contending that he wanted to incorporate the following by way of amendment to the written statement. "7 (a) It is submitted that the plaintiff had borrowed a sum of Rs. 2000/- from the defendant in the year 1961. Consequently, he delivered the possession of the schedule property to the defendant and executed and registered mortgage deed dated 22. 7. 1961. The defendant has occupied the premises as a mortgage and the status of the defendant continues to be that of a mortgagee. Hence the above suit is not maintainable and the plaintiff is not entitled to recovery of possession in the present suit. 7 (b) It is submitted that the plaintiff began demanding payment for the occupation of the property even though he had not repaid the mortgage consideration nor redeemed the mortgage. Due to the ignorance and innocence of the defendant, he agreed to pay for the occupation of the property. It is relevant to submit that the plaintiff initially collected two separate sums of Rs. 150/- and Rs. 50/- respectively in respect of the two portions of the schedule property. Even if the same is considered the plaintiff has no locus standi to maintain a single suit. It is submitted that the legal status of the mortgagee will not be altered unless the mortgage is redeemed. Hence the suit is liable to be dismissed if considered from any angle. " by such amendment he wanted to resile from his earlier stand that he was a tenant, but wanted to contend that he had occupied the premises as mortgagee and the status of the defendant continues to be that of a mortgagee. Consequently, the above suit for recovery of possession was not maintainable. Further by way of amendment the defendant wanted to state that the plaintiff had not repaid the mortgage consideration nor redeemed the mortgage and due to inadvertence and ignorance the defendant had agreed to pay a sum of Rs. 250/- towards use and occupation of the two portions of the schedule property. The defendant sought for amendment in the above terms.

(3.) THE learned Trial Judge on hearing the said application declined to grant the relief as sought for in I. A. 2 mainly on two grounds: One is that the admission already made cannot be taken away by way of amendment and further the application for amendment of the written statement was filed after the plaintiff had concluded his evidence. Another ground on which the Trial judge declined to grant the said application was that after a lapse of nearly 32 years the present defence was taken up and there was no difficulty for the defendant to take such a plea either in the earlier proceeding or at filing of the present written statement. In view of this, the Learned trial Judge rejected the said application. Aggrieved by the said rejection, the defendant is before this Court.