Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Gurdial Singh and Ors. Raj Kumar Aneja and Ors.

2002 (2) TMI 1344 - SUPREME COURT OF INDIA

Appeal (civil) 2896 of 2001 - Dated:- 4-2-2002 - R.C. Lahoti And Brijesh Kumar, JJ. For Appellant/Petitioner/Plaintiff: Yashank Adhyaru, Sr. Adv., K.S. Mehlwal and M.C. Dhingra, Advs For Respondents/Defendant: R.K. Talwar and Yash Pal Dhingra, Advs. JUDGMENT R.C. Lahoti, J. 1. There is a property described as 'Gurdial Complex' situated at SCO 1108-1109. Sector 22-B, Chandigarh. Admittedly, the property is owned by Sqn. Ldr. Gurdial Singh (Retd.), Mrs. Jasmer Kaur, Mrs. Jagjit Kaur, Miss .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d Rakesh Sharma, Advocate were revision petitioners before the High Court and are respondent Nos. 1 and 2 before us. There is a dispute as to the character of occupation and the status of these two - whether they are sub-tenants or tenants under the owners. They will be collectively referred to as 'occupants'. 3. On 6th January, 1988, a registered Deed of Lease was executed between owners and Goyal whereby 750 sq. ft. area on the first floor of Gurdial Complex was taken on lease by Goyal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ither side. The relevant terms of the lease may briefly be noticed. The lease rent of ₹ 16,000/- p.m. was payable in advance by seventh day of the current calendar month and if that was so done. Goyal was entitled to a rebate of ₹ 3,000/-. An amount of ₹ 26,000/- was deposited as interest free security with the owners to be retained during the currency of the lease and till Goyal remained in occupation of the premises as lessee. In specified cases of delay in payment of lease r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of ₹ 3,000/- for advance payment of rent before seventh day of current month was to remain the same in spite of first and second renewals. It was expressly stipulated that Goyal would not sublet any portion of the leased premises, partially or in full, to anyone under any condition and circumstances. In the event of subletting, part from legal consequences flowing from subletting. Goyal was to lose the privilege of earning rebate of ₹ 3,000/- p.m. and also to become liable to pay a p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

different parts of the tenancy premises by allowing cabins to be constructed without the written consent of owners, that drastic additions and alterations made in the premises have materially impaired the value and utility of the premises and that Goyal had failed to pay or tender the monthly rent of the premises from 1.5.1993 and was running into arrears. Goyal in his written statement admitted that he was a tenant under the Deed of Lease dated 26.4.1990 but pleaded that rent upto 30.4.1993 was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

onship of landlord and tenant between Goyal and them. The appellants (i.e. the petitioners thereat) were put to strict proof of their ownership and existence of landlord-tenant relationship between them and Goyal under the Lease Deed said to have been executed and registered between them. They pleaded that they were inducted into possession of the premises as licensees under agreements duly executed between Goyal and themselves and, therefore, they were not tenants under Goyal so as to be held s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rent collecting agent, but outwardly as a tenant, and the tenant i.e. Goyal inducting the occupants as licensees was a fraud on Rent Restriction Act by devising means for short circuiting the beneficial provisions intended to protect tenants. Each of the applications for amendment was accompanied by a new written statement sought to be placed on record. This written statement was completely a new written statement substantially in departure from the pleading contained in the original or first w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nto the merit of the controversy I am of the view that amendment sought is just and proper in the circumstances of the case and will help the Court in finally adjudicating the contentious issues raised by the parties. Accordingly, I accept the revision petition, set aside the order of the Rent Controller and allow the petitioners application for amendment of the written statement. Amended written statement be filed within a fortnight from today". The principal plea now urged by the occupant .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

p.m. Goyal Simply collected the rent and handed over the same of the petitioner Gurdial Singh. This arrangement was a brain wave of the petitioner Gurdial Singh and the defendant Goyal to overcome the chilling effects of East Punjab Rent Restriction Act, 1949. The tenancy between owners and Goyal was a sham transaction. The arrangement which outwardly appears to be a tenancy between owners and Goyal and licensing by Goyal in favour of the occupants was in effect the occupants being inducted as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed to playing fraud. 8. In the oral evidence. Gurdial Singh examined himself and proved the Deed of Lease executed between Goyal and himself. On behalf of the occupants the two occupants (respondents Nos. 1 and 2 herein) examined themselves. Narinder Pal Singh, RW3 who had at one point of time occupied a cabin in the suit premises but had subsequently vacated and Jagdish Singh, RW4, who was still occupying a cabin stated that Goyal was merely a collecting agent for Gurdial Singh. The statement o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n to be dismissed. Owners preferred an appeal which was allowed. The Appellate Authority held that there were no weighty and material circumstances enabling drawing of an inference contrary to the apparent tenor of the transaction and relationship created by documents in writing. The Appellate Authority found the averments made in the eviction petition proved and hence directed the tenant- Goyal and sub-tenant-the occupants to be evicted. The occupants preferred a revision petition before the Hi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d this appeal by special leave. 10. Having heard the learned counsel for the parties we are of the opinion that the appeal deserves to be allowed and judgment of the High Court deserves to be set aside. 11. It is true that in spite of the availability of a registered Deed of Lease executed between owners and Goyal, the occupants are not debarred from taking a plea that the transaction between owners and Goyal was not what it apparently appears to be just by reading of the Lease Deed. The occupan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d by submitting that what has been described on paper is not the real intention of the parties to do; the Lease Deed and the transaction spelled out by it was a sham or fictitious transaction not intended to be acted upon rather intended to overcome or avoid the effect of Rent Control Legislation. It is permissible to take such a plea and adduce evidence to substantiate the same. The plea can be taken though the onus, would lay on the shoulders of the party taking such a plea. To discharge the o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

accommodation. The rest is oath against oath - Gurdial Singh on one side and the occupants on the other side. We do not have the benefit of testimony of the star witness Goyal, who has conveniently chosen to keep himself away from the witness box except for admitting in part the claim of owners as contained in his pleadings. In such a case, we do not think the High Court could have in exercise of its limited revisional jurisdiction, reversed the finding of fact arrived at by the Appellate Autho .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tuted 'oral consent' in place thereof. Between owners and Goyal there is a registered Deed of Lease bringing into existence landlord-tenant relationship which the oral evidence as adduced by the parties and available on record is not enough to show that the transaction was sham or fictitious. Between the occupants and Goyal there are again deeds in writing showing nature and character of occupation of the occupants. The occupants have been placed in possession of cabins and given right t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a three months notice. The minimum period of licence is eleven months before which the licensees cannot vacate the premises. Licensee has to arrange for fire insurance of the cabins premises and has to bear the loss if any caused by fire and so on. The Lease Deed executed between owners and Goyal does not permit licensees being inducted by Goyal and on the contrary contains specific prohibition against subletting. A clear case for eviction under Section 13(2)(ii)(a) was made out. So also constru .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

at we have held the arrangement between the owners and Goyal to be real as evidenced by the Deed of Lease and not a sham transaction on the evidence adduced and material placed on the record of this case. This factual finding would not preclude a different finding being arrived at in any other appropriate case based on adequate pleadings and evidence of that case. 13. Before parting we feel inclined to make certain observations about the loose practice prevent in subordinate Courts in entertaini .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ve in their applications a vague idea of the nature of the intended amendment and then annex a new written statement with the application to be substituted in place of the original written statement. Such a course is strange and unknown to the procedure of amendment of pleadings. A pleading, once filed is a part of the record of the Court and cannot be touched modified, substituted, amended or withdrawn except by the leave of the Court. Order 8 Rule 9 of CPC prohibits any pleadings subsequent to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

or issue raised by or depending on such proceeding. Order 6 Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Unless and until the Court is told how and in what .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

cation, seeking leave of the Court for amendment in the pleadings as to what is proposed to be omitted from or altered or substituted in or added to the original pleadings. 14. In Pleadings : Principles and Practice by Jacob & Goldrein (1990 Edition) it is stated that a party served with a pleading which is subsequently amended may not amend his own pleading and may rely on the rule of implied joinder of issue but "if he does amend his own pleading, he is not entitled to introduce any a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ractice leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated, and in such case, the order giving leave to amend bloods the party making the amendment and he amend generally." (at pages 206-207). 15. The Court may allow or refuse the prayer for amendment in sound exercise of its discretionary jurisdiction. It would, therefore, be better if the reasons persuading the applicant to seek an amendment in the pleadings as also t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

amended by written alterations in a copy of the document which has been served and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alternations of the document so as to give effect to them would make it difficult or inconvenient to read a fresh document must be prepared incorporating the amendments. if such extensive amendment is required to a writ it must be reissued. An amended writ or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Pleadings (Second Edition) state the practice in regard to incorporating amendments in pleading as under (at page 165):- "In England it often happens that before the case comes into Court and while still the Master is exercising the powers conferred by a Summons for Directions. Counsel seek leave to amend not once but several times. The practice is to amend first in red and make later amendments in different coloured inks. A practice which we think might with advantage, be followed would be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d out, it must be done in such a manner as to show the original pleading and the alteration. Under Order VI, Rule 17, C.P.C., a party has apparently to amend his pleading while it is in Court. Under the old Code it was returned to him for amendment. The Court may even now have power to return it if it is necessary to do so. Where leave to amend is asked for, the actual amendment must be formulated before leave is given. If it is proposed to apply for amendment, it is desirable to inform the othe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l be incorporated in the pleading by the party with the leave of the Court and within the time limited for that purpose or else within fourteen days as provided by Order 6 Rule 18 of the CPC. The Court or an officer authorised by the Court in this behalf, may compare the original and the amended pleading in the light of the contents of the amendment application and the order of the Court permitting the same and certify whether the amended pleading conforms to the order of the Court permitting th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ntial amendments allowed by the Cot and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial. Most of the High Courts in the country follow this practice, if necessary by making provisions in the rules framed by the High Court for governing the subordinate Courts and their Original Side, if there be one. In fact in the State of Punjab and Haryana and Union Territory of Chandigarh, there is a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Courts in Punjab, Haryana and Chandigarh would follow the rule in letter and spirit. 20. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which of course would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase "consequential amendment" finds mentio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version