MOHD AJMAL Vs. DISTRICT JUDGE LALITPUR

JUDGEMENT

(1.) ANJANI Kumar, J. By means of present writ petition under Article 226 of the Constitution of India, the petitioner-tenant, who was defendant before the trial Court, challenges the order of the trial Court dated 7th August, 2004, whereby the trial Court has rejected the application 7-C filed by the petitioner-tenant seeking amendment in the pleadings on the ground that the application is barred by principles of res-judicata. The aforesaid application has been decided by the trial Court as per direction issued by this Court, whereby this Court directed the trial Court to decide issue No. 2 afresh vide its judgment and order dated 30 April, 2001 in the earlier writ petition filed by the petitioner being civil misc. writ petition No. 7703 of 1987 (Champa Lal Jain v. Additional District Judge, Lalitpur and others ). The relevant portion of the judgment of this Court runs as under: "thus, the tenant cannot be given advantage that the Act became applicable during the pendency of the suit. It is clear that the Act is not applicable in the present case. The question now to be determined is whether a valid notice under Section 106 of the Transfer of Property Act was served upon the respondent or not. The Judge Small Cause Court framed Issue No. 2 and decided this issue on the ground that the tenancy cannot be terminated under Section 106 of the Transfer of Property Act and can only be terminated on the grounds mentioned under Section 20 of the U. P. Act No. 13 of 1972. The revisional Court has not considered this aspect of the matter. Since I have already held that U. P. Act No. 13 of 1972 is not applicable, the Judge Small Cause Court is therefore directed to decide as to whether the tenancy was actually terminated by the said notice or not. In the result, the writ petition succeeds and is allowed in part. The judgment and orders dated 10-2- 1986 and 22-1-1987 passed by the respondent No. 2 and 1 are set aside and the matter is remanded back to the Judge Small Cause Court to decide the matter afresh in the light of the observation made above within a period of three months from the date of the production of the certified copy of this judgment. "

(2.) ADMITTEDLY, this Court directed the trial Court to decide the matter afresh within a period of three moths from the date of production of the certified copy of this judgment Learned senior Counsel appearing on behalf of the petitioner Sri V. C. Mishra contended that in view of the decision of the apex Court reported in AIR 1972 Supreme Court, 2091, Gauri Shankar v. M/s. Hindustan Trust (Pvt.) Ltd. and others. Paragraph 7 of the aforesaid judgment relied upon by learned Counsel for the petitioner is reproduced below: " (7) It seems to us that the learned Judge did not bear in mind certain salient facts and circumstances as also the well settled legal principles in entertaining and deciding points in appeal which had not been raised or which had been expressly abandoned before the lower Court. It is true that a question not agitated before the lower appellate Court or expressly given up there can be allowed to be raised if it is a pure question of law but in permitting the same to be done the Court has to consider whether in exercise of proper and judicial discretion such a point should be permitted to be agitated when it has been conceded or abandoned before the Court below. While giving permission to argue that point the Court has to look at all the facts and circumstances, the conduct of the parties seeking to raise that point is of great importance. In the present case as soon as the premises in dispute fell to the share of the appellant in 1958 by virtue of the compromise decree in the suit for partition the appellant, as was quite natural, asked the respondent to pay the rent to him. We have had occasion to refer to the correspondence which went on for a long time between the appellant and the Managing Director of the respondent company and at every step the latter was taking up a very unreasonable and equivocal attitude. It cannot be overlooked that D. Sanghi the Managing Director of the respondent company was the son-in-law of Krishan Lal who was the Chairman of that company. He was also a close relation of the appellant. It would therefore be legitimate to assume that he could not have been ignorant of the compromise decree and the fact that the premises in dispute had fallen to the share of the appellant who would, by operation of law, become the landlord of the respondent company. In spite of all this the appellant was driven to one proceeding after the other and on each occasion his title was denied. Ultimately when the suit for eviction was filed in 1959 it dragged on for several years. In the written statement which was originally filed no plea was taken that a valid notice to terminate the contractual tenancy had not been served and therefore the petition for eviction was not maintainable. The respondent waited for 8 yeas before seeking an amendment to include a plea on the absence of such a notice. The trial Court did allow the amendment but in our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had deep raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly 8 years a great deal of prejudice was caused to the appellant. It has been pointed out by Mr. Chagla on behalf of the respondent that an appeal was competent against the order allowing amendment under Section 38 (1) of the Rent Act and since no such appeal was filed the order allowing amendment become final. Without expressing any opinion whether such an order could be appealed against and on the assumption that an appeal was competent the question still remains whether the learned Judge of the High Court while allowing a point to be raised after it had been abandoned before the Rent Control Tribunal should or ought to have taken this fact into consideration and in combination with other facts should have disallowed any argument on the question of the invalidity of the notice. In our judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the Court that any argument based on the absence of a valid notice should not have been allowed. "

(3.) IN view of what has been stated above, this writ petition has no force and is accordingly dismissed. The interim order, if any, stands vacated. However, there will be no order as to costs. Petition dismissed. .