ADHIKARLA ANANDA RAO Vs. S GURMEL SINGH

JUDGEMENT

(1.) By this petition, under Article 227 of the Constitution of India, the petitioner challenges an order of the Additional Rent Controller, Delhi, made on December 2, 1975 in proceedings for eviction of the petitioner by which the Additional Rent Controller refused to grant leave to the petitioner to amend his reply to the said application so as to incorporate a plea for fixation of standard rent of the premises in dispute, should the Additional Rent Controller come to the conclusion that there was relationship of landlord and tenant between the parties in respect of the said premises.

(2.) The facts and circumstances leading to the petition may be briefly stated. The petitioner was admittedly in occupation of the ground floor of the property in dispute as a tenant on a monthly rental of Rs. 250. Since February, 1972 the petitioner has, however, been in occupation of the first floor of the premises in dispute having delivered the vacant possession of the ground floor to the landlord. There is a controversy between the parties as to the circumstances in which and the terms and conditions on which the petitioner gave up his occupation of the ground floor and occupied the first floor. It is the case of the petitioner that the petitioner was asked to temporarily shift to the first floor to enable the landlord to effect necessary repairs to the ground floor and the landlord had undertaken to put the petitioner back into the ground floor after the necessary repairs had been carried out. It is the further contention of the petitioner that after the repairs were carried out, the landlord backed out of the arrangement and instead kept the ground floor and started living there since March, 1972. According to the landlord, the respondent in the present petition the petitioner shifted to the ground floor by way of an arrangement of substitution and agreed to pay Rs. 250 for the first floor and surrendered the ground floor in favour of the landlord. Apparently, pursuant to the contention of the petitioner that his tenancy with regard to the ground floor still subsisted, and he was entitled to the possession of the ground floor being restored to him, the petitioner filed a suit in May, 1972 for recovery of possession of the ground floor. The suit was, however, dismissed in 1974 by the trial court on a preliminary ground, apparently with regard to the court-fee. The question as to the propriety of the dismissal of the suit, as indeed of the adequacy of the court-fee; now forms subject-matter of C.R. 503 of 1974 which was admitted by this Court on October 9, 1974, and is still pending. Meanwhile, the landlord sought the eviction of the petitioner from the first floor on the allegation that he was a tenant in respect of the first floor on a monthly rental of Rs. 250 and had, inter alia, made default in payment of rent since February, 1972, which is also the date on which, according to the common case of the parties, the petitioner occupied the first floor. Interestingly enough, the application tor eviction does not give the previous background of tenancy. It is. however, mentioned in the application that there was no agreement of tenancy. The application was resisted on behalf of the petitioner and in the course of his reply, the petitioner raised a preliminary objection that there was no relationship of landlord and tenant betwten the parties qua the first floor and gave a graphtic account of the circumstances in which the petitioner was asked to shift temporarily to the first floor and was deprived of the occupation of the ground floor by the landlord. In para 11 of the reply on merits, the petitioner pointed out that the ground floor had been tenanted at a rent of Rs. 250 per month. The petitioner added : "Question of any rent in respect of the premises comprising 1st floor does not arise. The respondent however, reserves his right to take the plea of fixation of standard rent after the decision of preliminary issues". Unfortunately, no replication was ordered and in any event none was filed by the landlord, placing on record his version as to the circumstances in which the petitioner shifted to the first floor. Be that as it may, consistent with what the petitioner said in para 11 of the reply, and probably in view of the fact that the question of relationship was not decided as a preliminary issue, the petitioner made an application dated 2nd December. 1975 under Order 6 Rule 7 of the Code of Civil Procedure seeking leave to amend the reply so as to incorporate the plea for fixation of the standard rent in the alternative. Paras 11 and 19 of the reply were sought to be amended in the following manner :

(3.) After hearing the learned counsel for the parties, it appears to me that the impugned order must be set aside and leave must be granted to the petitioner to amend the reply so as to incorporate the plea with regard to fixation of standard rent. It is true that the application for eviction was filed in November, 1972 and leave was sought in December, 1975, when the evidence of the landlord had already concluded, and obviously, therefore, after a considerable delay. It is equally true that under Section 12(b) of the Delhi Rent Control Act which would govern the plea in the matter of limitation, such an application, whether in an eviction proceedings or otherwise, could be filed either within two years from the date on which the premises were let to the tenant or within such extended period that may be allowed by the Rent Controller "if he is satisfied that the applicant was prevented by sufficient cause from filing the application in time". .While declining leave to the petitioner to amend the reply on the ground that the plea was raised after the period of two years of the tenancy and since the amendment would relate back to the original reply, it would deprive the landlord of the plea of limitation, the learned Additional Rent Controller committed material irregularity in exercising his jurisdiction by basing its order on the disputed plea of the landlord as to the date of the commencement of the tenancy and in utter disregard of the pleas of the petitioner, which are the only pleas on record, that there was no relationship of landlord and tenant between the parties ; that the petitioner was a tenant in respect of ground floor and continued to be so ; that he was tricked into vacating the ground floor and occupying the first floor ; that he was entitled to the possession of the ground floor ; and that no rent had been fixed in respect of the first floor. The Additional Rent Controller also completely overlooked the admitted facts that before the application for eviction, the petitioner had moved the civil court for recovery of possession of the ground floor, and even though the suit was dismissed on a preliminary ground, apparently on the question of valuation and court-fee, the matter was still sub judice in this Court in a petition of revision. The Additional Rent Controller further appears to have completely ignored that the petitioner had sought a decision of the relationship between the parties qua the first floor as a preliminary' question and had taken pains to raise a specific plea in para 11 of the reply, that in view of the petitioner's plea, there was no question of there being any rent in respect of the first floor. The Additional Rent Controller was also completely oblivious of the circumstances that in the reply the petitioner had specifically reserved his rights "to take the plea for fixation of standard rent after the decision of preliminary issues". Even so, the Additional Rent Controller did not think it proper to consider if the period of limitation had started running at all and if it had if it was a case in which the period provided in Section 12 should be suitably extended. Another aspect of the matter which also appears to have escaped his attention is the fact that the fixation of standard rent was not only a plea open to the tenant to make in any proceeding of the nature, with which the Additional Rent Controller was concerned, but a decision on the plea eventually in favour of the petitioner would have an impact on the liability of the petitioner to be evicted on the ground of nonpayment of rent. This is so because even if it is ultimately found that the tenancy commenced from 19th February) 1972 and the standard rent which would be effective from April, 1972, being one year before the date of the reply, the quantum of default, if any, would be different. Having regard to all these circumstances, refusal of leave to the petitioner to amend the reply, to my mind, was a clear case of failure to exercise jurisdiction by the Additional Rent Controller vested in him by Law and had an effect of depriving the tenant of valuable right to seek the fixation of standard rent. The incorporation of such a plea was also necessary to determine the real controversy between the parties as to the liability of the petitioner to be evicted on the ground of nonpayment of rent.