1.

AFR

Court No. - 19

Case :- S.C.C. REVISION No. - 7 of 2019

Revisionist :- Dinesh Chandra Gupta

Opposite Party :- Rajendra Kumar Khanna

Counsel for Revisionist :- Rama Goel Bansal

Counsel for Opposite Party :- Pradeep Saxena

Hon'ble Manoj Kumar Gupta,J.

Counter affidavit filed today is taken on record.

Heard counsel for the parties.

The instant revision is directed against the order dated 3.1.2019

passed by Judge Small Causes Court in SCC Suit No. 51 of 2015,

whereby the application 42-Ga filed by the defendant-revisionist

seeking amendment in the written statement has been rejected.

By the amendment sought, the defendant-revisionist tried to

bring on record the fact that Sanjeev Kumar Khanna and Rajeev

Kumar Khanna, sons of the plaintiff are the owners and landlord of

the disputed premises and not the plaintiff. It is alleged that the sons

of the plaintiff purchased an open piece of land by registered sale

deed dated 10.1.1975. Thereafter they constructed shops over the

same including two shops in possession of the defendant-revisionist.

They also let out the shop to various tenants including the defendant-

revisionist. The plaintiff collected rent from the defendant-revisionist

on behalf of his sons. There exist no relationship of landlord and

2.

tenant between the plaintiff and the defendant-revisionist. The

plaintiff had no locus to institute the suit.

The amendment has been rejected by the court below by

observing that the assertion made in plaint that the defendant-

revisionist is tenant, has been admitted by him in paragraphs 1 and

12 of the written statement. Therefore, the defendant-tenant is

seeking to withdraw the admission by the amendment sought. It has

also been observed that the explanation furnished by the defendant-

revisionist for not being able to raise the above pleas in the original

written statement regarding lack of knowledge of english language is

not correct as he had signed the written statement and other

documents in English. It has also been observed that several dates

had been fixed for cross-examination of PW-1 but the defendant-

revisionist had been seeking adjournment. The application seeking

amendment has therefore been rejected.

Counsel for the revisionist submitted that in the entire plaint,

the plaintiff did not assert that he is the owner or landlord of the

disputed premises. It is further submitted that in paragraphs 1 and 13

of the written statement, it is specifically pleaded that the defendant-

revisionist is tenant on behalf of the plaintiff's sons. Thus, according

to her, the amendment sought was only to elaborate the existing

pleadings and no admission was being withdrawn.

3.

On the other hand, learned counsel for the plaintiff-opposite

party submitted that the defendant-revisionist has admitted that he

had been tendering rent to the plaintiff, therefore it is not open to him

to resile from the said stand.

A perusal of the plaint assertions would show that in the entire

plaint, there is no pleading that the defendant-revisionist is tenant on

behalf of the plaintiff, although it is asserted that he had served a

notice determining the tenancy and the defendant-tenant had not

complied with the notice.

Paragraph 1 of the plaint reads as follows :-

“That the defendant was tenant in occupation and possession

of a shop bounded as blow, constructed in Khanna Market,

situated at 725, Sufi Tola, Opp. Ghujral Petrol Pump Bareilly,

on a monthly rent of Rs.3000/- exclusive of Municipal Taxes

and the tenancy of defendants starts from 1^st day of each

English calender month.”

Paragraph 1 of the written statement, which is reply to

paragraph one of the plaint, reads as follows :-

“That in contents of para No.1 of the plaint it is true that

defendant is tenant of the shop for and on behalf of defendant

his Son Sanjeev Khanna in Khanna Market, Sufi Tola, Opp.

Gujral Petrol Pump Shyamganj Road, Bareilly. It is also

admi