SHIV NARAIN GUPTA Vs. AMRIT LAL

JUDGEMENT

(1.) Aggrieved by the order passed by the Rent Control Tribunal, the landlord-owner has filed the present appeal. It has been contended by Mr. Bagai, learned Counsel for the appellant that an application under Order 23, Rule 3 of Civil Procedure Code was filed by the parties before the Additional Rent Controller on 16th November, 1992. However, on 8th April, 1993 an application was filed by the appellant, inter-alia, stating before the Additional Rent Controller that the signature of the appellant was obtained on the application for compromise and on the affidavit under coercion and by fraud, and, therefore, there was no compromise between the parties. Reply to that application was filed by the respondent on 1st November, 1993. Rejoinder was also filed by the appellant. On 23rd January, 1995 the Additional Rent Controller held that as no statement was recorded by the parties in terms of Order 23, Rule 3 of CPC, the application could not be considered and even if the same was to be taken into consideration then also a party making the compromise can withdrawn from the same unless the same was recorded in the Court and allowed by the Court. That order was passed by the Additional Rent Controller on 23rd January, 1995. No appeal against that order was preferred by the respondent.

(2.) On 12th December, 1995 the respondent filed an application under Order 6, Rule 17 seeking amendment in the written statement on the ground of alleged compromise. It has been contended before me by learned Counsel for the appellant that once the Additional Rent Controller found that there was no compromise as the application filed by the appellant dated, 8th April, 1993 has been adjudicated upon by the Additional Rent Controller, on that score no amendment could have been permitted by the Rent Control Tribunal. It has further been contended before me by Mr. Bagai, learned Counsel for the appellant that even .otherwise the amendment, apart from being mala fide, was hopelessly time barred. He has contended that the order dated 23rd January, 1995 was not challenged. Even otherwise the amendment was filed alleging a compromise which took place on 1st November, 1992. Counsel for the appellant has contended that the amendment could not have been allowed as it was highly belted. In support of his contentions, learned Counsel for the appellant has cited 1987 (IV) JT 620, Luxmax Industries Ltd. v. DESU & Another, 66 (1997) DLT 272; EMI Ltd. v. Arun Bhandari, 66 (1997) DLT Delhi 655; and also Union of India & Another v. Sher Singh 6- Ors., II (1997) CLT 58 (SC)=)T 1997 (2) SC 659. Yet another contention which has been raised by the learned Counsel for the appellant impugning the order of the Rent Control Tribunal is that the defence of the respondent was struck of under Section 15(7) of the Delhi Rent Control Act. It was contended before me that an order under Section 15(1) of the Delhi Rent Control Act was passed against the respondent on 27th October, 1983. There was default in payment of rent by the respondent from September, 1992 till April, 1996 i.e. a default of almost forty four months.

(3.) On the other hand, Mr. Andley, learned Counsel for the respondent has contended that the application which was filed on 16th November, 1992 was not disposed of and, therefore, the respondent was under a bond fide belief that he had not to deposit the rent in terms of order passed under Section 15(1) of the Delhi Rent Control Act. Mr. Andley has further contended that there was neither wilful nor contumacious default on the part of the respondent and respondent had acted bona fidely in view of the compromise entered into between the parties on 1st November, 1992 and in his support has cited Mohd. Sualin v. Mrs. Sunita Chugh, 1982 RLR 29. Mr. Andley has further contended that there was no delay in filing the application for amendment under Order 6, Rule 17 of Civil Procedure Code as the application for striking out the defence of the respondent was filed by the appellant on 23rd March, 1995. The reply to the smae was filed by the respondent on 8th November, 1995 and a composite order was passed by the Additional Rent Controller. The application for amendment was filed on 12th December, 1995.