TMI Blog2002 (2) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... cate 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 on a monthly rent of ₹ 5,000/-. The duration of lease was to expire on 31st December, 1990. However, on 26th April, 1990, there was a fresh Deed of Lease executed between owners and Goyal whereby a portion of the first floor of Gurdial Complex shown in green lines annexed with the Deed of Lease was, taken on rent at the rate of ₹ 16,000/- p.m. by Goyal. The lease commenced w.e.f. 1st May, 1990. Duration of lease was three years, terminable even in between by three months notice on either 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 entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were fabricated and sublet on the oral request of Gurdial Singh himself. At the end of the written statement. Goyal submitted that he was ready to vacate the premises and he had no objection if necessary orders of eviction were passed against the sub-tenants. 5. The occupants filed separate written statement. In substance the plea taken by them was that there did not exist any relationship 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 sub-tenants and expose themselves to the risk of eviction under Section 13(2)(ii)(a). 6. Replications were filed. On 7.7.1994, the occupants sought for amendment in their written statements. It was stated in the applications seeking amendment that subsequent to the filing of the written statement it had come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects 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 tenant of owners. Gurdial Singh was himself running his business in the same complex and was well aware from the very beginning of cabins having been constructed and then let out to the occupants by inserting advertisement in the newspapers. The rebate of ₹ 3,000/- provided in the Deed of Lease between owners and Goyal is a mode of paying commission for collection of rent by Goyal. It was prayed that a court of law should not uphold such an arrangement which circumvented the law and amounted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Lease Deed. They are not parties to the Lease Deed. Therefore, Sections 91 and 92 of the Evidence Act, 1872 are not attracted. The occupants are impeaching the outward validity of Lease Deed 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 onus direct evidence may or may not be available and it would be permissible to draw an inference from tell-tale circumstances. However, the inference to be drawn from the circumstances should be an irresistible one and not merely a matter of conjectures and surmises. 12. In the present case, the testimony of two independent witnesses, namely Narinder Pal Singh and Jagdish Singh (RW3 and 4), does not lead us anywhere. Anup Singh, RW5 does not depose to anything about first floor which is the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bletting. A clear case for eviction under Section 13(2)(ii)(a) was made out. So also constructing several cabins in the hall enabling use of several cabins as independent office premises certainly impairs materially the value or utility of the building which was a hall and therefore, attracts applicability of Section 13(2)(iii). The High Court was not justified in holding that availability of the said two grounds was not made out. We are, therefore, of the opinion that the order of the High Court cannot be sustained. However, by way of abundant caution we could like to make it clear that 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 entertaining and dealing with applications for amendment of pleadings. It is a disturbing feature and if such pract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 amendment that he chooses. He can only make such amendments as are consequential upon the amendments made by the opposite party (at page 193). In all cases except where amendment is allowed without leave, the party seeking or requiring the amendment of any pleading must apply to the Court for leave or order to amend. The proposed amendment should be specified either by stating them, if short, in the body of the summons, notice or other application or by referring to them therein. In practice 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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed as proposed, or may be altered before leave is given. Leave having been given a new plaint or written statement showing the old pleading and with the amendments written or typed in might then be prepared and taken on the file of the Court. In cases whether the addition is substantial it may be necessary to deliver a copy of the pleading as amended. If old matter is scored 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 other side so that there can be no question of surprise and no adjournment may be necessary on allowing the amendment. Pursuant to the leave granted the proceedings should be amended before the judgment is pronounced. 18. Thus, once a prayer for amendment is allowed the original pleading should incorporate the change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 mention in the decision of this Court in Bikram Singh (SIC) v. Ram Baboo and Ors.AIR1981SC2036 . The (SIC) judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of answer to the plea previously permitted to be incorporated by way of amendment by the opposite party. A new plea cannot be permitted to be added in the garb of a consequential amendment though it can be applied by way of an independent or primary amendment. 21. Some of the High Courts permit as matter of practice an additional pleading by way of response to the amendment made in the pleadings by opposite party being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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