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Vyas Aqua Product Private Limited v/s UCO Bank

    Interim Application Appeal No. 4351 of 2000, Suit Appeal No. 1794 of 1996

    Decided On, 05 September 2000

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE VIKRAMAJIT SEN

    For the Appearing Parties: A.P.S. Ahluvalia, Hemant Malhotra, S.R. Khandelwal, Advocates.



Judgment Text

VIKRAMAJIT SEN, J.


(1) THIS is an application filed by the defendants seeking leave to amend their written statement. The contention of Mr. Khandelwal, learned Counsel for the defendant is that the suit is as yet at the preliminary stage and if the amendment is permitted the plaintiff can be adequately compensated in terms of costs. He further submits that on a reading of the plaint it is clear that the plaintiffs' title is predicated on a Deed of assignment dated 19/6/1992. A copy of this Deed was filed on 27/01/2000. Immediately thereafter the present application has been filed in order to seek leave to introduce into the written statement of preliminary objection substituted to the effect that since this Deed of Assignment has not been registered, it has no legal efficacy.


(2) LEARNED Counsel for the plaintiff submits that in the written statement the defendant has admitted the title of the plaintiff. Apart from the Assignment Deed, a duly registered Lease Deed was also executed between the present plaintiff and the erstwhile owner, Shri L. N. Chopra. The Lease Deed authorises the plaintiff to sublet the premises. Therefore, there is no legal impediment in the way of the plaintiff being granted relief, even if the documents of title are looked into. A further contention is that the defendant has attorned to the plaintiff and this is being so, it cannot now be permitted to resile from the admission made in the written statement.


(3) THERE is no doubt that amendments are to be liberally allowed. It is well settled that if an amendment is brought at a time when the suit is at an incipient stage, and even more lenient approach should be adopted. However, in the present case the amendment, if allowed would have the effect of submitting the defendants to withdraw an admission already made.


(4) LEARNED Counsel has rightly drawn support from M/s. Modi Spinning and Weaving mills Co. Ltd. and Another /s. M/s. Ladha Ram and Co. , AIR 1977 SC 680 in which it was held that an amendment which seeks to displace the plaintiff completely from the admissions contained in the written statement, ought not to be allowed. In paras 1 to 3 of the written statement the defendants have denied the corresponding paragraphs of the plaint for want of knowledge. This very issue arose in the case of Jahunru Sah and Others Vs. Dwarika Prasad Jhunjhuwala and Others, MR 1967 SC 109. The Apex Court observed as follows:


"instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in Order VIII, Rule 5,civil Procedure code provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact not even an implied denial. "


(5) ON an application of the ratio extracted above, there Cappears to be a clear admission of the averments made in paragraphs 1 to 3 of the plaint. A perusal of these paragraphs show that a definite statement of the plaintiffs ownership had been made therein. The contention of Mr. Khandelwal that there was a clarification in the written statement to the effect that certain litigation concerning the ownership of the property was pending in the Calcutta, would not dilute this admission.


(6) IT is not only on this ground that I am satisfied with the application is without merit and deserves to be dismissed. Even otherwise, it must be kept in perspective that the defendants have been paying rental to the plaintiff pursuant to the execution of the assignment Deed dated 19/6/1992 as well as the Lease Deed in favour of the plaintiff which is of the same date. Learned Counsel for the plaintiff has also drawn my attention to the fact that in reply to the plaintiff's letter dated 12/6/1995, learned Counsel for the Bank in terms of letter dated 15/6/1995 had not only admitted the relationship of landlord and tenant t had further mentioned that the defendants had exercised their option for renewing the lease. The grounds on which a tenant can be allowed to question the title of his landlord are no longer in doubt. Learned Counsel for the plaintiff has relied on Tej Bhan Madan Vs. II Additional district Judge and Others, AIR 1988 SC 1413. Para 8 of this judgment is reproduced as below:


"now, Section 3 (1) (f) which refers to one of the grounds for eviction under the act envisages: " (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has no waived his right or condoned the conduct of the tenant;" There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of Jus-tertii. The stance of the appellant against the third-respondent's title was not on the ground of any infirmity or defect in the flow of title from gopinath, but on the ground that the latter's vendor-Mainavati herself had no title. The derivative title of the third-respondent is not denied on any ground other than the one that the vendor, Gopinath to whom appellant had attorned-had himself no title, the implication of which is that if appellant could not have denied Gopinath's title by virtue'of the inhibitions of the attornment, he could not question third-respondent's title either. Appellant did himself no service by this stand. It must, accordingly, be held on both the aspects contended for by Shri asthana that what appellant did, indeed, amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant. The principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. Having regard to the circumstances of the case and the findings of fact recorded by the High Court it appears to us to be a clear case which attracted the grounds under Section 3 (1) of the Uttar Pradesh (Temporary) Control of rent and Eviction Act, 1947 (Act 3 of 1947). The view taken by the High Court does not call for interference. We accordingly find no merit in this appeal which is dismissed but without an order as to costs".


(7) LEARNED Counsel for the plaintiff has further relied on Anar Devi Vs. Nathu Ram, 1994 (4)SCC 250 Head Note-B is of relevance, and is reproduced as below:


"doctrine of tenant's estoppel" which governs the relationship of landlord and tenant is founded on a contract of tenancy entered into by them. This doctrine finds statutory recognition in Section 116 of the Indian Evidence Act. 1872. In a suit for eviction by landlord, the tenant is estopped from questioning the title of the landlord because of Section 116. That section applies and estops even a person already in possession as tenant under one landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment or conduct. Therefore, a tenant of immovable property under landlord who becomes a tenant under another landlord by accepting him to be the owner who had

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derived title from the former landlord, cannot be permitted to deny the latter's title, even when he is sought to be evicted by the latter on a permitted ground". (8) FOR these several reasons it is clear that the amendment although it attempts to raise a legal issue, cannot be allowed. (9) THE suit is for ejectment. The application under Order XI I, Rule 6 of the Code of civil Procedure is pending and in between the present application was filed. The intention of the defendants appears to be to delay the proceedings. The defendant has been paying rent to the plaintiff since 1992. The relationship of landlord and tenant is, therefore, well settled. In these circumstances the application is dismissed with costs of Rs. 5. 000. 00. I. A. 11023/1998: list for arguments on 27/03/2001.
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