MOTI MAHAL DELUX-II Vs. KIRAN DUTTA

JUDGEMENT

(1.) The grievance of the Petitioner to the order dated 3rd December, 2014 is to the extent that while allowing the amendment application and taking the amended petition on record the Rent Controller granted liberty to the Respondents to withdraw the relief of eviction on the ground of the bona fide requirement and file a fresh petition on the said ground.

(2.) Learned counsel for the Petitioner contends that the Respondents herein filed a composite petition seeking the relief of eviction of tenanted premises under Section 14 (1) (a) and 14 (1) (e) of the Delhi Rent Control Act, 1958 (in short the "DRC Act"). Thereafter the Respondents filed an application under Order VI Rule 17 CPC seeking amendment to the petition by withdrawing the prayer under Section 14 (1) (a) DRC Act. During the pendency of the said application the Respondents filed another application under Order VI Rule 17 CPC seeking withdrawal of the claim in the petition on the ground of bona fide requirement, that is, under Section 14 (1) (e) DRC Act. When the matter came up for hearing before the learned Rent Controller on 3rd December, 2014 the Respondents withdrew their earlier application under Order VI Rule 17 CPC filed on 2nd July, 2014 and pressed the second application confining the relief in the eviction petition under Section 14 (1) (a) DRC Act. According to learned counsel for the Petitioner by the amendment application the Respondent sought permission under Order XXIII Rule 1 CPC, that is, withdraw/abandon the claim, though simultaneously in the prayer Respondents also sought liberty to file separate application under Section 14 (1) proviso (e) of the DRC Act. Relying upon Order XXIII Rule 1 CPC it is contended that having abandoned the claim no liberty could have been granted by the learned Rent Controller to the Respondents to file a fresh petition under Section 14 (1) proviso (e) of the DRC Act. In the alternative it is also contended that neither any sufficient cause was made out in the application seeking amendment, for filing a fresh petition on the same cause of action nor did the learned Rent Controller return a finding qua sufficiency of cause while granting the liberty to file a fresh petition. Reliance is placed on K.S. Bhoopathy and others vs. Kokila and others, 2000 5 SCC 458; Vidyabai and others vs. Padmalatha and another, 2009 2 SCC 409; Kailash vs. Nanhku and others, 2005 4 SCC 480; Arvindkumar Ratilal Punatar and others vs. Yogeshkumar Karilal Shah, 1999 AIHC 3464 and Just Lifestyle Pvt. Ltd. vs. Advance Magazine Publishers Inc. and another,2013 4 RAJ 670 . Relying upon Abdul Ghafoor vs. Abdul Rahman, 1951 AIR(All) 845 it is contended that the words "sufficient ground" in order XXIII Rule 1 (3) should be read as ejusdem generis to the defect to be cured. It is further contended that the trial having commenced the learned Rent Controller could not have permitted amendment of the petition. The Petitioner has not pleaded that there is a formal defect in the petition which needed to be cured. There is no bar in the DRC Act for filing eviction petition on the composite grounds. A right had accrued to the Petitioner as leave to defend was not required. Though the Petitioner could have abandoned the claim but the Court was not entitled to grant leave to the Respondent, hence the impugned order granting liberty to Respondents to file the fresh petition under Section 14 (1) (e) DRC Act.

(3.) Per contra learned counsel for the Respondents contends that the Respondent in his amendment application has clearly made out sufficient cause of speedy adjudication while seeking the amendment and liberty to file a fresh petition under Section 14 (1) proviso (e) of the DRC Act. Even the learned Rent Controller vide the impugned order has arrived at the satisfaction regarding sufficiency of cause. Hence the two decisions relied upon, that is, K.S. Bhoopathy and Arvindkumar Ratilal Punatar have no application to the facts of the case wherein the relief was granted only on the ground that the Defendant therein would not be prejudiced by grant of permission to withdraw the claim. Relying on Sushil Kumar Jain vs. Manoj Kumar, 2009 AIR(SC) 2544 and the decision of this Court dated 13th September, 2011 in I.A. No.4452/2011 in CS (OS) No.800/2006 titled as Rajesh Sharma vs. Krishan Pal and another it is contended that unless the witness either enters the witness box for his examination-in-chief or tenders his evidence by way of affidavit in examination-in-chief, it cannot be said that the trial has commenced. The trial having not commenced the amendment to the eviction was rightly allowed by the Rent Controller. No right has accrued to the Petitioner as urged. By directions to Petitioner to file the written statement no vested right has accrued to the Petitioner. A vested right is a permanent right. Relying upon M/s Ambalal Sarabhai Enterprises Ltd. vs. M/s Amrit Lal & Co. and another, 2001 8 SCC 397 it is contended that the DRC Act only gives a protective right and not a vested right. Hence the present petition being devoid of merit be dismissed.