INDERJIT GROVER Vs. INDRAWATI

JUDGEMENT

(1.) R.S.A. 40 of 2003 is directed against the judgment and order dated 13.2.2003 of the Additional District Judge in R.C.A. No. 10 of 2000 whereby the learned Judge has set aside the judgment of the trial court with directions to the defendants-respondent to file amended written statement before the trial court; thereafter fresh issues be framed and, after giving opportunity of leading evidence, to decide the suit afresh.

(2.) Brief facts of the case, as noted by the First Appellate Court, are as under :

(3.) The First Appellate Court, after hearing parties and perusing the record, came to the finding that the purpose of letting out was not mentioned in the plaint. It also noted that it was only during the pendency of the suit that another suit was filed by the plaintiff for restraining the defendants from using the premises for commercial purpose, which suit was stayed. In the application dated 17.11.1997 under Section 151 of the Code of Civil Procedure filed by the plaintiff before the trial court it was mentioned that the defendants in Suit No. 229/1997, pending in the Court of Shri L.K. Gaur, Civil Judge, had filed a written statement wherein they had taken a plea that the premises had been let out for residential-cum-commercial purpose and the same were being used as such. The Supreme Court has, in Smt. Gyan Devi vs. Jeevan Kumar & Ors., 1985 (1) RCJ 640, held that the tenancy for commercial purpose as well as for residential purpose is heritable and it is only the residential tenancy which is inherited by the tenant's legal heirs subject to limitation. In view of this it became incumbent upon the trial court to have returned a finding as to the purpose of letting. If the purpose was residential-cum-commercial, as claimed by the defendant in the application, then the suit, as such, was not maintainable. The amendment sought, in view of the above circumstances, was essential for the purpose of decision of the suit and the core issue. In this view of the matter it was proper and in the interests of justice and for effective adjudication of the controversy between the parties that the amendment be allowed. The First Appellate Court, consequently, allowed the application under Order 6 Rule 17 of the Code of Civil Procedure vide its order dated 13.2.2003.