IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : CODE OF ...

IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : CODE OF CIVIL PROCEDURE
Date of Reserve: November 18,2008
Date of Order: January 07, 2009
CM(M) 16/2008

Ved Prakash Singhal ...Petitioner
Through: Mr.J.L. Jain, Advocate

Versus

Ved Prakash ...Respondent

Through: Mr. Rana Sandeep proxy counsel for Mr. D.S. Patil, Advocate

JUSTICE SHIV NARAYAN DHINGRA

JUDGMENT:

1. The petitioner is aggrieved by an order dated 1st October 2007 passed by
learned Civil Judge whereby an application of the plaintiff (petitioner
herein) under Order 6 Rule 17 of the Civil Procedure Code was dismissed.

2. The petitioner had filed a suit as a landlord for eviction of the respondent.
In the written statement, the respondent denied the title of the petitioner qua
the premises in question as well as the relationship of the landlord and
tenant. After this denial, the petitioner made an application for amendment
of the suit seeking to add a plea by inserting additional paragraph
mentioning therein that by renouncing the character of the plaintiff as
landlord in the reply to the notice as well as in the written statement the
plaintiff was entitled to a decree of possession against the defendant on the

basis of his title. The plaintiff (petitioner herein) also wanted to plead that
the defendant (respondent herein) was not entitled to retain the possession
after renouncing his character of a tenant qua plaintiff.

3. The respondent in this case took a stand that he had pleaded in the written
statement that he was a tenant under father of the petitioner herein and now
since the father of the petitioner has died and the petitioner was one of the
Lrs of his father, he became tenant under the petitioner by operation of law
and, therefore, this amendment was not necessary since renouncement of his
character as a tenant had become redundant and now he acknowledged the
petitioner as a landlord. On these contentions of the respondent, the Ld. Civil
Judge dismissed the application of the petitioner for amendment of the
plaint. The other ground given by Ld. Civil Judge for dismissal of the
application is that it was made after framing of issues.

4. It is an undisputed fact that father of the petitioner was made the sole
defendant in another suit filed by the respondent for permanent injunction
wherein he prayed that he be not dispossessed without due process of law.
Father of the petitioner appeared in the Court and made a statement before
the Court that he was not the landlord of the respondent and he had not let
out the shop to the respondent. He had not made any attempt to dispossess
the respondent, nor would he in future make any such attempt to dispossess
the respondent without due process of law. In view of this statement made
by the father of the petitioner, the suit was decreed and a permanent
injunction was issued against dispossessing the respondent. The present suit
for eviction was filed thereafter. Despite the statement of the father of the
petitioner that there was no relationship of landlord and tenant and despite
the fact that plaintiff (petitioner herein) was relying on the documents of
creating the tenancy by the petitioner/plaintiff in favour of the respondent,
the respondent denied the title of the petitioner and the relationship of
landlord.

5. Section 111 (g) (2) of Transfer of Properties Act, reads as under:- “111.
Determination of lease A lease of immovable property determines- (a) by
efflux of the time limited thereby, (b) where such time is limited
conditionally on the happening of some event-by the happening of such
event, (c) where the interest of the lessor in the property terminates on, or his
power to dispose of the same extends only to, the happening of any event-by
the happening of such event, (d) in case the interests of the lessee and the
lessor in the whole of the property become vested at the same time in one

person in the same right, (e) by express surrender, that is to say, in case the
lessee yields up his interest under the lease to the lessor, by mutual
agreement between them, (f) by implied surrender, (g) by forfeiture; that is
to say, (1) in case the lessee breaks an express condition which provides that,
on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces
his character as such by setting up a title in a third person or by claiming title
in himself; or (3) the lessee is adjudicated an insolvent and the lease
provides that the lessor may re-enter on the happening of such event; and in
any of these cases the lessor or his transferee gives notice in writing to the
lessee of his intention to determine the lease, (h) on the expiration of a notice
to determine the lease, or to quit, or of intention to quit, the property leased,
duly given by one party to the other. Illustration to clause (f) A lessee
accepts from his lessor a new lease of the property leased, to take effect
during the continuance of the existing lease. This is an implied surrender of
the former lease, and such lease determines thereupon.” (emphasis added)

6. It is apparent that a legal right had accrued in favour of the petitioner and
against respondent by respondent”s repudiating the title of the plaintiff and
the tenancy of the respondent stood terminated automatically, because of
renouncing of the character of the petitioner as lessor and setting up a title in
favour of the father of the petitioner. The petitioner was within its right to
bring this legal preposition on record by way of an amendment of the plaint.
The death of the father of the petitioner had nothing to do with this legal
right. The renouncing the character of the petitioner by the respondent was
independent of the death, neither the death of the father of the petitioner
would wash away renouncement made by the respondent.

7. It is also an undisputed fact that the evidence in this case had not started
yet. I, therefore, consider that since the case was at initial stage, the trial
court went wrong in dismissing the application of the petitioner for
amendment of the suit. The petition of the petitioner is hereby allowed and
the impugned order is hereby set aside. The application filed by the
petitioner under Order 6 Rule 17 CPC is hereby allowed. In the facts and
circumstances of the case, the parties are left to bear their own costs.

Sd/-
SHIV NARAYAN DHINGRA J.