Amendment of written statements post-trial commencement is not permissible if it contradicts prior admissions regarding landlord-tenant relationships.

JUDGMENT :

(Bibek Chaudhuri, J.)

1. The instant civil revision is specially assigned before this Bench for disposal.

2. An order of rejection of amendment of written statement applied by the defendants having been rejected by the trial court vide order dated 6th November, 2017, therefore the instant revision under article 227 of the Constitution of India has been filed.

3. Suffice it to say that in a suit for eviction the defendants wanted to amend the written statement after commencement of trial with a prayer to incorporate the following facts:-

4. The original owner could not execute another lease deed in favour of plaintiff for realization of rent when the suit property is in possession of defendant No.1 and 2. The original owner was therefore unable to handover the actual possession of the premises in suit to the alleged second lessee. The plaintiff filed the suit on the basis of the alleged second lease executed by the original owner, namely, Emerald Company in as much as the same was expired by that time by efflux of time. Thus, the defendants wanted to incorporate a dispute of landlord tenant relationship between the plaintiff and the defendants. It is also stated that creation of any tenancy over an existing tenant is not permissible. The plaintiff compelled the defendants to become sub-tenant at the instance of Emerald Company by executing the alleged lease deed in the absence of the defendants. Therefore, the suit for eviction on the ground of subletting is not maintainable at the instance of the plaintiff. The defendants also wanted to plead that no transfer took place between the plaintiff and the Emerald Company in accordance with the provision of Section 54 of the Transfer of Property Act and as such no new tenancy can be created over an existing tenancy which was in existence between the defendants and the said Emerald Company.

5. It is not in dispute that the defendants are the legal heirs of the original tenant. The plaintiff filed a suit against the defendants for a decree for eviction, recovery of khas possession and other consequential reliefs. The defendants appeared in the suit and filed written statement denying all materials allegation made by the plaintiff in the suit Previously, during the tenancy of the suit this Court held in FAT 1195 of 2003, FAT 1132 of 2003 and FAT 798 of 2003 that Khaitan Consultants Limited, defendant No.1 herein could not file any suit for eviction of the alleged trespasser on the basis of the right conferred by the lease deed executed in its favour. The present defendant No.1 being the plaintiff in the said suit on the basis of which the above mentioned first appeals were filed, preferred a special leave petition before the Hon’ble Supreme Court against the decision of this Court passed in the above mentioned first appeals. The special leave petition before the Hon’ble Supreme Court was disposed of on 2nd September, 2015 with the following observation.

“Upon hearing the learned Counsel for the parties, we are of the view that the High Court ought not to have constrained one of the parties to amend the plaint. On this short ground, we are setting aside the judgment delivered by the High Court.” In the said judgment at paragraph 6 their Lordships have been pleased to held that “The appeals shall be notified for hearing by the High Court on 02.11.2015 and it would be open to the parties to raise all contentions permissible in law before the High Court and the order of status quo prevailing on today, shall continue till 30.11.2015. The said order may be modified by the High Court after hearing the concerned parties, if thought necessary.”

6. In the mean time the defendant No.1 died leaving behind her only heirs and legal representative, namely Pratyush Kumar Ray the petitioner herein. The defendant No.2 had withdrawn the application under Order 7 Rule 11 of the Code of Civil Procedure and subsequently filed the application under Order 6 Rule 17 read with Section 151 of the Code of Civ