SIDHARTHAN CHIT FUND Vs. ANISUR RAHMAN

JUDGEMENT

(1.) The defendant in this application has challenged the legality of the order dated 5-8-80, passed by the Additional Subordinate Judge, Ranchi, rejecting the prayer of the petitioner to allow it to amend the written statement.

(2.) A suit was filed by the plaintiff-opposite party for eviction of the petitioner from a building described in the plaint The suit for eviction was filed on the ground that the period limited by the deed of lease dated 15-8-1973, has expired by efflux of time and that the petitioner has stopped paying rent from 15-10-1977. The petitioner filed written statement contesting the claim for ejectment. It was contended by the petitioner, inter alia, that as the deed of lease was not registered the opposite party was not entitled to get any benefit under the same. It was also asserted that there was no default in paying the rent; rather the petitioner paid the rent in excess to the opposite party which he was entitled to adjust against the future rent. On 4-8-1980, an application was filed on behalf of the petitioner for amendment of the written statement. It prayed for insertion of two paragraphs, that is, paragraph 10 (a) and paragraph 10 (b). The reason why the facts stated in paragraph 10 (a) and 10 (b) could not be stated in the original written statement was that the petitioner came to know about those facts after filing of the written statement. A rejoinder was filed to that application by the opposite party. The court below by the impugned order rejected the prayer of the petitioner. On 8-9-80, when this Civil Revision application was listed for admission, the opposite party who had put in appearance in this case was also heard. After hearing counsel appearing on behalf of the parties, it was ordered that this civil revision application will be heard, with regard to the prayer of the petitioner for inserting paragraph 10 (a) in the written statement by way of amendment. In this case, therefore, I will deal with regard to paragraph 10 (a) sought to be introduced in the written statement.

(3.) Mr. Debi Prasad learned counsel appearing for the petitioner submitted that the court below has failed to exercise his jurisdiction in rejecting the prayer of the petitioner. It appears from the impugned order that the amendment was refused by the court below as the petitioner has admitted the relationship of landlord and tenant between the opposite party and itself, and, therefore, the petitioner has no right to challenge the title of the opposite party. It was submitted by Mr. Debi Prasad that the petitioner was entitled to take inconsistent defence in order to unsuit the opposite party. He also contended that since the petitioner had no knowledge about the transfer of the suit property made by the opposite party to his wife, when the written statement was filed, therefore, the effect of transfer with regard to the relief prayed by the opposite party in the suit could not be pleaded. He urged that the court below should take notice of subsequent events i.e. the events which happened after the filing of the suit and the court below ought to have allowed the petitioner to amend the written statement. Mr. Debi Prasad also submitted that Section 116 of the Evidence Act was not a bar for the petitioner to state that no decree in favour of the opposite party could be passed as he has transferred his title in the suit property to another person. In support of this proposition he relied upon the cases of Shikharchand Jaia v. Digamber Jain Praband Karini Sabha (AIR 1974 SC 1178), Sukumar Chatterjee v. Kiran Chandra Mitter (AIR 1964 Cal 439), and Khalil Sufi v. Aziz Bhat (AIR 1960 J. & K. 132). Mr. N.K. Prasad learned counsel for the opposite party submitted that in the written statement the petitioner has not denied the relationship of landlord and tenant. According to him me only defence is that no decree can be passed on the basis of an unregistered deed of lease. He urged that by the amendment the petitioner cannot be allowed to deprive the opposite party from the admission made by it in the written statement. In support of his contention he relied upon the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. (AIR 1977 SC 680). Mr. N.K. Prasad further submitted that the opposite party has transferred his interest to his wife in respect of the ground floor of the building and not in respect of the first floor in which the suit property is situate.