MANOHAR SINGH Vs. RAM NATH CHITKARA

JUDGEMENT

(1.) This second appeal under Section 100 of the Code of Civil Procedure (hereinafter called 'the code)') on behalf of Manohar Singh, defendant No. I is directed against the judgment and decree dated 20th January, 1978 of the Additional District Judge, Delhi confirming the decree and judgment dated 25th March, 1975 of the Subordinate Judge, 1st Class, Delhi whereby a decree for possession and mesne profits was passed in favour of Shri Ram Nath Chitkara, Advocate-plaintiff against the appellant and respondent No. 2 Smt. Geeta.

(2.) The plaintiff purchased the property known as 'Light Building' situated at 58, G. B. Road, Delhi bearing Municipal No. 5377 by means of a sale deed dated 10th August 1964. One Smt. Jamna was a tenant at Rs. 23.00 per mensern in a portion of the second floor of the said property. She used to carry on the business of dancing and singing in the said premises. Defendants I and 2 were her employees and agents for the purposes of the said business. The plaintiff by notice dated 22nd January, 1969, terminated the tenancy of Smt Jamna requiring her to vacate the premises by 28th February, 1969. This notice was duly served. She however, died on 23rd January, 1970. The plaintiff on 24 March, 1970 filed the present suit out of which this second appeal has arisen for possession of the said premises and 46.00 as damages at the rate of Rs. 23.00 per month for a period of two months upto the date of the suit. The plaintiff alleges that the defendants are in unauthorised possession of the premises and carrying on the business of dancing and singing therein although they have no right, title and interest after the termination of tenancy of Smt. Jamna and her death. The defendants i.e. appellant and respondent No. 2 by a common written statement plead that the premises were let to the appellant and Smt. Jamna, that the appellant was the husband of Smt. Jamna, that they were carrying on business of dancing and singing in the suit premises and that after the death of Smt. Jamna, the appellant alone has been carrying on the said business. It is further pleaded that the defendants have been residing in the premises as members of the family of Smt. Jamna. It is alleged that the tenancy of Smt. Jamna was never terminated. It is further pleaded by the appellant that as the tenancy of Smt. Jamna was never terminated he being her husband, is entitled to inherit the tenancy rights. The plaintiff in his replication specifically denied that Smt. Jamna was the wife of the appellant. In other words, it is alleged by him that the appellant was not the husband of Smt. Jamna, that Smt. Jamna alone was tenant in the suit premises and her tenancy was duly terminated. It is further alleged by the plaintiff that the appellant is not the tenant and and is not entitled to in her it the tenancy rights as Smt. Jamna was a statutory tenant. The trial court by judgment dated 25th March, 1975 held that the plaintiff is the owner of the suit property, that the tenancy of Smt. Jamna was validly terminated during her life time, that the appellant was not a tenant along with Smt. Jamna, that he was not the husband of Smt. Jamna and therefore he was not entitled to inherit the tenancy rights, that he was not residing with Smt. Jamna in the suit premises. The trial court, therefore, passed a decree for possession against the defendants with respect to the suit premises and a decree for Rs. 46.00 on account of mesne profits with costs besides future mesne profits @ Rs. 23.00 per month till 'the date of delivery of possession of the premises to the plaintiff.

(3.) The defendants filed the first appeal on 5th June, 1975. On 1st December, 1975 the definition of the word 'tenant' in the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') was amended with retrospective effect by means of ordinance which was subsequently replaced by Act 18 of 1976. The defendants therefore on 15th January, 1976 filed an application before the lower appellate court under Order 6 Rule 17 of the Code and proposed to plead facts so that the appellant may be held to be a tenant under the amended definition. In the proposed amendment it was pleaded that the appellant was the husband of Smt. Jamna, that he had been residing with her as member of her family upto the date of her death and that he was financially dependent upon her since she was the dancer and singer. This application was opposed by the plaintiff on the ground that the proposed amendment was not necessary for the decision of the case. The plaintiff submitted that the appellant had already pleaded in the written statement that he was the husband of Smt. Jamna and that he was residing with Smt.Jamna in the suit premises. The plaintiff further submitted that the amendment was not necessary as the trial court had already held that the appellant was neither the husband nor was he residing with Smt. Jamna in the suit premises. The lower appellate court confirmed the findings of the trial court and also held that the amendment of the written statement was not necessary.