NARENDRA NATH SEN Vs. BROADWAY CENTRE

JUDGEMENT

(1.) In this application under Section 115 of CPC, the order dated 5th January, 1999 passed by the learned Judge, Sixth Bench, Presidency Small Causes Court in Distress Case No. 13 of 1997 has been challenged. By that order the learned Judge refused to allow in full the amendment that was proposed to be made on behalf of the petitioner-defendant in his written objection filed in that case.

(2.) The opposite party filed the distress case against the petitioner under Section 53 of the Presidency Small Causes Court Act for realisation of a sum of Rs. 8,640/- towards the rent in arrear for a period of 12 months from July, 1996 to June, 1997 on the allegation that the petitioner was a tenant in respect of rooms Nos. 84 and 85 located at 14/2, Old China Bazar Street, Calcutta at a rent of Rs. 720/- per month. A distress warrant was issued by the Court in respect of the goods and chattals to be found within the said premises. In pursuance of the distress warrant issued on 10th July, 1997 by the Court to cover the claim and cost, the petitioner's property was attached and the petitioner appeared before the Court on 17th July, 1997 and asked for time to deposit the entire distress amount which was eventually deposited on 21-7-97 along with a written objection wherein it was alleged that one Gopal Das Bagri was his landlord in relation to the premises concerned and not the opposite party and that he was paying rent in respect of the suit premises to the said Gopal Das Bagri. It was further alleged that some time back the opposite party falsely represented him to be the landlord and started collecting rent from the petitioner who, however, started depositing the rent with the Rent Controller in favour of Gopal Das Bagri as soon as the landlordship of the said Gopal Das Bagri came to his knowledge. In the circumstances it was alleged by the defendant petitioner in his written objection that he was not a defaulter in payment of rent and the distress proceeding is liable to be dismissed.

(3.) Subsequently, the defendant petitioner filed a petition under Order 6, Rule 17, CPC proposing certain amendments to his written objection. One such amendment was for correction of the section of the law which was wrongly mentioned in the written objection. In the prayer portion of the written objection in place of Section 60, Section 61 of the Presidency Small Causes Court Act was written through a bona fide mistake. Another amendment was also for correction of a typing mistake in paragraph 1 wherein instead of the word 'petitioner' the word 'petition' has been typed. So far as these two amendments are concerned, obviously they are formal in nature and was made only to correct inadvertant typographical mistake and by the impugned order, this part of the amendment was allowed. Baring this amendment, the learned Judge by the impugned order refused to allow the other amendments that were proposed to be made by the defendant petitioner in his written objection. The petitioner's case was that since the objection was filed in a great hurry, certain facts were omitted to be disclosed in the written objection and that is why by the proposed amendment, several paragraphs namely paragraphs 9 to 13 were sought to be added. The sum and substance of the said amendment may be stated as follows.Originally a firm under the name and style of Narayani Press was inducted as a tenant of the rooms bearing Nos. not only 84 and 85 but also 43 and the petitioner is a partner of the said firm. The petitioner has no tenancy in the premises concerned in his personal name and as such the distress proceeding is liable to be rejected. The ownershipof the opposite party is disputed and several suits are pending before the High Court. Suit No. C. S. 378 of 1995 is between the opposite party and the said Gopal Das Bagri and suit No. CS 293 of 1996 is between the opposite party and Vikam Chand Market Traders and Tenants' Association and others and a partition and administration suit being CS No. 166 of 1996 is between the plaintiff and the said Gopal Das Bagri as also one K. K. Kothari in respect of the disputed premises. The disputed property was allotted to Gopal Das Bagri in a partition suit whereby he became the absolute owner thereof. It is not known whether the said Bagri has validly transferred the said property to the opposite party. The petitioner did not receive any letter of attornment from the said Bagri intimating that the opposite party is the owner of the concerned premises. The distress case is not maintainable.