EVELYN J DISNEY Vs. RAJESHWAR NATH GUPTA

JUDGEMENT

(1.) THIS is defendant No.7's appeal under Section 10 of the Delhi High Court Act, 1966, against the order of the learned Single Judge dated 6 May 1994, dismissing her application under Order 6 Rule 17 Civil Procedure Code for amendment of written statement filed on her behalf on 15 November 1988 in Suit No.662/1988.

(2.) THE learned Single Judge, in the impugned order, in brief, narrated the progress in the suit proceedings from the beginning till the filing of the application for amendment and observed that it was manifest therefrom that the application was moved after five years of the institution of the suit and after the conclusion of arguments by counsel for the contesting parties and after filing of written arguments by the plaintiff and defendant No.7. THE Court thus, felt that the application for amendment was highly belated and had been moved with a view to delaying the disposal of the case. THE application for amendment was thus dismissed in limine. THE dismissal of the application has been assailed in the grounds of appeal on the ground that there was no limitation provided for filing application for amendment of the pleadings; the scope of Order 6 Rule 17 Civil Procedure Code was very wide, the application could be moved at any time, the order of the learned Single Judge is contrary to law and he has failed to apply his mind while dismissing the application. To appreciate the controversy involved, it would be necessary and appropriate to notice in brief the relevant facts and circumstances leading to the filing of the application dismissed by the impugned order. It appears that R.S. Ram Parshad was the owner of building "Kashi House" at Connaught Place, New Delhi, which had shop No.A-3 on the ground floor. THE said owner let out the said shop to one Mrs. F. Lawrence Enid vide lease deed dated 15 September 1936 for running a dress maker's shop and she did that business. THE rent continued to be increased from time to time. After the expiry of the period of lease, the lessee became a statutory tenant under THE Delhi and Ajmer Rent Control Act,1952. THEre was a partition in the family of the owner and the premises in question fell to the share of Rajeshwar Nath Gupta, the plaintiff in the suit, who, in 1971, served notice on the tenant Mrs. Lawrence Enid, asking her to vacate. Mrs. Enid died on 23 March 1988, according to the plaintiff, leaving no next of kin and her assets going to the State by escheat. THE plaintiff/landlord filed a suit for permanent injunction, impleading the Administrator General, appointed under the Administrator Generals Act, 1963, as defendant No.1 (averring that deceased's stock-in-trade lying in the shop had vested in him) and defendants No.2 to 6, on the plea that they were trying to trespass on the premises. An application for interim stay was filed on which an ex parte interim stay was issued restraining defendants No.2 to 6 from entering the premises in question. After service of stay order, defendants No.2 to 6 applied for vacation of the stay on the plea that defendants No. 4 and 5 were in lawful possession of the premises since 1982 as partners of the deceased tenant Mrs. Enid and so was defendant No.2, who had now entered into a partnership with defendants No. 4 and 5. THE Local Commissioner appointed to visit and report about possession and stocks reported in favour of the said defendants, on which the interim stay was vacated. Defendants No.3 and 6 were given up by the plaintiff. Defendants No.4 and 5 claimed to be the partners of the deceased tenant under partnership deed dated 29 July 1982, in occupation as such and defendant No.2 claimed tenancy rights in the premises on the basis of a registered will dated 8 June 1983 executed by Mrs. Lawrence Enid, the deceased tenant bequeathing tenancy rights in his favour. On 20 April 1988 counsel for the parties made statements; for the plaintiff it was stated that for the purpose of the suit, the plaintiff did not dispute the execution of the will by Mrs. Enid in favour of defendant No.2 nor did he dispute the execution of the partnership deed dated 29 July 1982 by which defendants No.4 and 5 had been taken as partners by the deceased tenant; and for the contesting defendants it was stated that they did not dispute the ownership of the plaintiff. Meanwhile, an application under Order 1 Rule 10 Civil Procedure Code (IA 4878/88) was filed by Mrs. Evelyn J. Disney, the appellant herein, wherein she claimed that she being the real sister of the deceased tenant, inherited the tenancy which vested in her, she was a necessary party and be impleaded. By order dated 7 September 1988, P.K.Bahri, J. allowed the application and the appellant was impleaded as defendant No.7. She filed a written statement claiming tenancy by inheritance and also supported the aforesaid claims of defendants No.2, 4 and 5 and the pleas raised by them, in their written statement. THE claims and pleas of the now contesting defendants 2,4, 5 and 7 were countered on diverse grounds by the plaintiff, in his replications, as reflected in the issues. On the pleadings of the parties, the following issues were framed on 20 September 1989: