AMBICA PARSHAD Vs. DEVI MANDIR KARNAL

JUDGEMENT

(1.) This revision petition u/s.15(5) oi the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short 'the Act') is directed against the order dt. 4th Mar., 1985, of the learned Senior Sub-Judge, Karnal, disallowing the application of the present' petitioner Ambica Parshad for amendment of the Written Statement filed by him. It has been moved in the following circumstances.

(2.) Devi Mandir, Karnal, filed an application u/s.13 of the Act for the ejectment of the present petitioner Ambica Parshad from the demised premises on various grounds. Ambica Parshad contested the petition and filed a Written Statement controverting the pleas taken by the landlord. Thereafter, the issues were framed. I am, however, informed that evidence has not been recorded in the eviction application as yet. The petitioner filed an application seeking various amendments in the Written Statement. The landlord had serious objection to the following three paras in the Written Statement that were sought to be substituted. Along with these paras, the paras sought to be substituted are juxtaposed below :- Existing averments As proposal PRELIMINARY OBJECTIONS : 2. That the considerations apart and merits aside, it is submitted that the open plot was taken on rent from Mansa Devi Mandir, Karnal through Shri Ram Chander, father of Sat Pal, applicant, on 7-11-1945 and a writing to this effect was executed by Shri Sham Lal, petition-writer, Karnal entered in his register at Serial No. 1021 and payment of rent from 1-11-1945 to 31-10-1946 is also entered in his register at Serial No. 1922 dt. 7-11-1945. Rent Act was not applicable in Punjab at that time. It was also agreed and stipulated in the agreement/ Rent Note that the Respondent would construct Kothas on the suit land for purposes of Ara Machine and for selling fire timber woods i.e., for running a Tal. It was also agreed that the Respondent had to lift the Malba of the Kothas as and when the possession was to be restored to the owner/landlord. The Kothas now present at the spot were constructed somewhere in the year 1946. The Ara Machine was installed with the consent of the father of Sat Pal through whom the present application has been filed in the year 1955 and since then the Ara and the Kothas are there on the plot in dispute. Ram Chander, previous Muntim of the property of Devi Mandir has since died and his sons namely Pawan Kumar, Jai Parkash and Sat Pal are receiving rent from different tenants claiming themselves to be landlords. Sometimes, Pawan Kumar receives the rent and some times Jai Parkash. Lastly, Sat Pal, applicant came to the Respondent and demanded rent without receipt and the Respondent showed his inability to do so and hence this false petition has been filed. That the respondent took the premises in question in the form of vacant land on rent from Mansa Devi Mandir, Karnal vide Rent Note dt.7-11-1945 at the rate of Rs.10/- per month, the rent note to that effect was duly executed and registered. The rate of rent was later on enhanced to Rs.15/- p.m. the demised premises was let out to the respondent for the purpose of Karobar. Since then the respondent has been running business of Wooden Tal and Saw Mills in the demised premises. However, the respondent is at liberty to run any business in the demised premises as per terms and conditions of Rent Note. The respondent has also been authorised to raise construction over the demised premises to his satisfaction as per terms of rent note and therefore he constructed the rooms and one shed for the running of wooden tal and saw mills after the execution of the Rent Note. The Kothas do require repairs as they are old ones and the Respondent has every right to get them repaired as they were constructed by him and as per the agreement, he can get them repaired any time he likes. The original rent note is with the applicant and he should produce the same in the Court. ON MERITS : 4(ii). That this para is incorrect, false and frivolous. The site in dispute was taken on rent by the Respondent for Tal as well as for Ara Machine. In fact, Tal includes the Ara Machine. Taking the consent of the present petitioner, Sat Pal does not arise as he was not able to give his consent in the year 1955 when his father was alive. Moreover, it is denied emphatically that Sat Pal is a competent person to file the present petition on behalf of Devi Mandir. That Para No.4(ii) of the petition is wrong and hence denied, The disputed property was let out to respondent on rent at the rate of Rs.10/- per month for the purpose of Karobar vide registered Rent Note. Later on, rate of rent was enhanced to Rs.15/- per month. However, respondent has been running business of Wooden Tal and Saw Mills in the demised premises. Respondent has not changed the user of the demised premises in any manner. He has been running the business of wooden tal and Saw Mills, from the very inception. It is to mention here that the demised premises was let out for Karobar i.e., business purposes and not for some specific business; so it cannot be stated that respondent has changed the user of property in dispute by any stretch of imagination. 4(iv) That para No. (iv) of the petition is wrong. In fact, the property in dispute is not a building. It is a Tal and three Kothas are now present on the spot which were built by the Respondent himself and they do require repairs. The" Respondent is entitled to get them repaired as he likes. That para No. (iv) of the petition is wrong. In fact, the property in dispute is not a building. It is a Tal and three Kothas are now present on the spot which were built by the Respondent himself and they do require repairs. The Respondent is entitled to get them repaired as he likes. It is wrong to allege that property in dispute has fallen in the rainy season; so the building is unfit for human habitation and is in dilapidated condition. No part of the demised premises is in dilapidated condition nor it can be termed as such by mere stretch of imagination as only vacant land was let out to the respondent on rent vide registered rent note and later on, he raised construction over the disputed land, so even in case it is proved that any portion of the building over the demised property is not in good condition, a fact disputed and denied then too respondent cannot be ejected from the demised premises as demised premises is vacant land which has been let out for Karobar and respondent has been running wooden tal in the demised premises. Thus, the demised premises can not be termed as building by any stretch of imagination nor it can be stated to be unfit for human habitation by any stretch of imagination. Thus, the petitioner cannot seek ejectment of the respondent on this ground.

(3.) This application was resisted by the landlord. It was averred in its reply that the amendment was intended to fill up the lacunae. The respondent wants to make up a new case and wants to introduce different cause of action. The amendment sought will completely change the nature of the case and it will work injustice to the landlord The application was filed at a very belated stage and an inconsistent case not be allowed to be set up. After perusing the record and hearing the learned counsel for the parties, the learned Rent Controller came to the conclusion that by the proposed amendment the respondent wanted to plead that the premises were let out to him for the purpose of 'Karobar' and that the respondent was at liberty to carry on any business. No part of the premises was in a dilapidated condition. Only vacant land was rented out to the respondent Even if any part of the demised premises was not in good condition, the respondent could not be ejected therefrom. He held that the tenant wanted to completely change the Written Statement by introducing new facts. The tenant wanted to completely change its stand on the issue of purpose for which the demised premises were taken on rent and the condition of the demised premises. He could not be permitted to change his defence by introducing a new case. The Court further observed that it was not the case of the applicant-tenant that due to inadvertance of the counsel, certain pleas could not be taken. It was also not a case where the applicant may have alleged certain facts in the Written Statement by inadvertence or under some mistake.