SURENDRA KUMAR Vs. KRISHNA DWIVEDI

JUDGEMENT

(1.) Through this petition under Article 227 of the Constitution of India the petitioner seeks to assail the order of the learned Rent Controller Delhi, dated 5.6.2003 thereby dismissing an application under order VI Rule 17 read with Section 151 CPC filed on behalf of the respondent seeking amendment of reply/written statement in an eviction petition.

(2.) The relevant facts are that Smt. Shyama Sharma was the owner of property bearing No. 248. Sant Nagar, EOK, New Delhi In the year 1974, Smt. Shyama Sharma filed an eviction petition under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the "Act") on the ground of non-payment of rent which was allowed by the Controller vide an order dated 26.9. 1988. The petitioner herein filed an appeal and Smt. Shyama Sharma filed a cross appeal. During the pendency of the said appeal Smt. Shyama Sharma died on 1.1.1990 leaving behind five daughters including Smt. Krishna Dwivedi. The Legal representatives of Smt. Shyama Sharma were brought on record and the appeals were answered by the Rent Control Tribunal vide an order dated 10.10.97 Smt. Krishna Dwivedi, on the strength of a sale deed dated 9.10.1986 purportedly executed by Smt. Shyama Sharma in her favour, field an another eviction petition under Section 14 (1) (a) (c) and (h) of the Act. In the Said petition Smt. Krishna Dwivedi has with drawn grounds in Clause (c) and (h). She filed another eviction petition under Section 14 (1) (a) read with Section 14(2) alleging second default in the payment of rent which is being contested by the present petitioner/tenant on a variety of grounds. The petitioner sought amendment of para 3 and 14 of its reply which was opposed by the respondents. The learned Controller on consideration of the matter and more particularly the respective stands taken by the parties and the findings and observations made by Shri S. M. Aggarwal, Rent Control Tribunal) in its order dated 10.10.1997 and those made h} the Judge of Small Causes Court in its order dated 28.9.2001 declined the' permission to amend his written statement as according to him the petitioner, wanted to withdraw certain admissions which were made in the earlier proceedings. Besides the proposed amendment, if allowed would change the nature and character of the defence which was not legally permissible.

(3.) I have heard Mr. A.S.Chandhiok, Sr. Advocate representing the petitioner and Mr. Deepak Gupta learned counsel representing the respondent and have given my thoughtful consideration to their respective submissions. At the outset Mr. Deepak Gupta, learned counsel representing the petitioner has raised an objection about the maintainability of the present petition under Article 227 of the Constitution against the impugned order on the ground that an alternate efficacious remedy by way of appeal under Section 38 of the Act is available to the petitioner which he has not exhausted.. On the other hand contention of Mr. Chandhiok, Sr. counsel for the petitioner is that since an appeal under Section 38 of the Act lay before the Tribunal only on the question of law so an appeal would not be maintainable against, an order dismissing or allowing an amendment application as such, an order is merely procedural.. In support of his contention that the appeal would not be maintainable and the present proceedings are the only available remedy with the petitioner, Mr. Chandhiok has heavily relied upon a decision of this Court in the case of S.K.Aggarwal Vs. Abdul Aziz 81 (1999) DLT 278 wherein this Court held that any order which effect or determines the right of the parties is appeal able under Section 38 of the Delhi Rent Control Act and for that purpose one has. to go the facts and circumstances of each case whether amendment sought for results into withdrawal of an admission and whether the amendment sought for changes the nature of the cause of action. In another case of Site Ram Talwar and Anr. Vs. Jai Dev Sharma ILR1972 (II) Delhi 769 it was held that an order within the strict scope of order VI Rule 17 CPC and not travelling outside it, being merely procedural, allowing alteration of amendment of the pleading, would not be appeal able under Section 38 of the Act. In this very authority it was however laid down that the order although purporting to have passed on an application moved under Order VI Rule 17 CPC, moves outside the authority provided that by provisions and ordinarily orders allowing amendment of pleadings do not determine any rights and liabilities of the parties and, therefore, would not be appeal able as such.