Kiran Gupta and others v. Om Prakash Vishwakarma) and further be pleased to dismiss the
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 9531 of 2024 Smt. Kiran Gupta (Deceased) And 3 Others Om Prakash Vishwakarma Versus .....Petitioner(s) .....Respondent(s) Counsel for Petitioner(s) Counsel for Respondent(s) : Ashish Agrawal : Romeshwari Prasad, Rudreshwari Prasad Court No. - 37 HON'BLE CHANDRA KUMAR RAI, J.
Legal Reasoning
1. Heard Mr. Ashish Agrawal, learned counsel for the petitioners and Mr. Rudreshwari Prasad, learned counsel for the respondents. in building No. 49-A, 2. Brief facts of the case are that proceeding under Section 21 (1)(a) of U.P. Act No. 13 of 1972 was initiated by the petitioners/ landlords impleading the respondent as opposite party/ tenant in respect to shop situated Jhonsonganj, Allahabad. The aforementioned proceeding was registered as P.A. Case No. 19 of 2014. During pendency of the aforementioned PA case No. 19 of 2014 two amendment applications filed by respondent were allowed by prescribed authority. The third amendment application filed by the respondent has been again allowed under the impugned order dated 24.7.2024 hence this petition for the following relief:- "Issue an order or direction in exercise of powers under Article 227 of the Constitution of India setting aside the impugned order dated 24.7.2024 passed by the Additional Civil Judge, Court No. 11, Allahabad in P.A. Case No. 19 of 2014 (Kiran Gupta and others Vs. Om Prakash Vishwakarma) and further be pleased to dismiss the 3rd amendment application of the tenant/ respondent (paper No. 38 KA) in to to:"" 3. Learned counsel for the petitioner submitted that impugned order allowing the amendment application cannot be sustained in the eye of law as under the impugned order, the admission made by the petitioner has been withdrawn. He submitted that release application filed by petitioner in the year 2014 is still pending. He submitted that this Court has expedited the proceeding of P.A. case No. 19 of 2014 in spite of that the proceeding has not been concluded. He submitted that impugned order should be set aside and the pending P.A. case No. 19 of 2014 should be decided within time bound period. He placed reliance upon the judgement of Apex Court reported in 2015 (0) Supreme (SC) 911 Ram Niranjan 2 A227 No. 9531 of 2024 Kajaria Vs. Sheo Prakash Kajaria and Others in support of his argument. 4. On the other hand, learned counsel for the respondent submitted that suit for specific performance of contract at the instance of respondent is pending before the Civil Court, as such, the impugned order allowing the amendment application is in accordance with law. He submitted that amendment application has rightly been filed on behalf of respondent in the pending p.a. case No. 19 of 2014 and the prescribed authority has rightly allowed the amendment application. He further submitted that petition filed by petitioner should be dismissed. 5. I have considered the arguments advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that proceeding under Section 21 (1)(a) of U.P. Act No. 13 of 1972 is pending before the prescribed authority since 2014. There is also no dispute about the fact that two earlier amendment applications filed by respondent/ tenant were allowed by the prescribed authority and the third amendment application (38-Ga) filed by respondent/ tenant has been allowed under the impugned order. 7. In order to appreciate the controversy involved in the matter, the perusal of paragraph nos. 1,2, 18, 19 and 41 of the written statement will be relevant which are as under:- "(1). That para 1 of the release application is admitted subject to additional please. (2). That in reply to para 2 of the release application the original tenancy in the name of the father of the O.P. Sri Heera lal which was commenced @ Rs. 13.25 p.m. since the year 1942 and the present rate of rent Rs. 150/- .m. inclusive of Municipal taxes is admitted rest of the allegation are false hence denied. (18). That the predecessor-in-interest, the father of the O.P. was initially let into the shop in question in or about the year 1942 and that time the dimensions of demised shop at that time was about 13 ft.* 24 ft. (19). That subsequently the case for ejectment from the said shop was filed by the then co-owner landlord of the shop in question Shri Laxmi Narain wherein during the continuous of the said eject proceeding a space of 3 ft. North South and 24 ft. East- West was vacated by the deceased Heera Lal and surrendered it to its co-landlord Shri Laxmi Narain who had subsequently sold out the vacated portion amalgamated into the adjacent northern shop to Shri Gangoli who was the tenant in the said shop. (41). That since the applicant No.4 Shri Abhay Kumar Gupta is already 3 A227 No. 9531 of 2024 employed, engaged and established the business of general merchandise and mobile recharge, as such, his alleged required are wholly false fabricated and fictitious which cannot at all be considered by the Court." in 8. The prayer made in the amendment application (38-Ga) will also be relevant for perusal which is as under:- " The proposed amendments in the W.S. of opposite party are as under:- (i) That in 2nd line of para 1 of the W.S. the word "admitted be deleted and on its place the words "denied and further facts are" be allowed to be written (ii) That in the end of para 18 of W.S. it may allowed to be added "The demised shop was let out by Sri Luxmi Narain, the grandfather of the applicants to the father of opposite party Sri Heera Lal Vishwakarma. iii. That in 2nd line of para 19 of the W.S. the word "co-owner" be deleted and on its place the word "owner" be allowed to be added and in the 7th line of the said para the word "co-" be deleted. iv. That after existing para 41 of the W.S. following fresh paragraphs be allowed to be added: - "41A. That the opposite party in the month of November 2023 while cleaning the room of his father for making it a bed room of his son whose marriage was to be solemnized in December 2023 for the first time find out the original agreement for sale of the demised shop dated 07.05.1965 which was duly executed by the then original owner landlord Sri Luxmi Narain in favour of opposite party's father Sri Heera Lal Vishwakarma on an agreed sale consideration of Rs.40,000/- out of which a sum of Rs. 30,000/- was paid by the opposite party's father and remaining sum of Rs.10000/- was agreed to be paid at the time of execution of sale deed. 41B. That the said agreement for sale dated 07.05.1965 was Bila Miyadi having no time limit fixed for execution of sale deed. 41C. That the opposite party prior to 1711.2023 had no knowledge of the existence of the said agreement since his father died in the year 1988 and mother predeceased him.otherwise the opposite party would have taken the said pleas in the earlier P.A. Case No. 09 of 1999 Hari Shankar Gupta vs. Om Prakash Vishwakarma, wherein opposite party had lost the area of 3' feet x 24' feet of the demised shop. 41D. That the opposite party on the basis of said agreement for sale 4 A227 No. 9531 of 2024 dated 07.05 1965 has already filed a suit for specific performance of contract of the disputed shop in the court of Ld. Civil Judge West (J.D) Allahabad being suit no. 217 of 2024 Om Prakash Vishwakarma. vs Rajesh Kumar Gupta & others which is pending disposal. 41E. That it is also relevant to mention here that at the time of execution of the said agreement for sale the possession of the shop in question was handed over by its owner Sri Luxmi Narain to Sri Heera Lal in part performance of contract. 41F. That on account of the execution of agreement for sale dated 07.05.1965 in favour of Sri Heera Lal Vishwakarma the relationship of landlord and tenant between then landlord Sri Luxmi Narain and Heera Lal ceased and came to an end and the status of owner-landlord and tenant between the parties were converted into seller and purchaser. 41G. That in view of the facts narrated above in view of the subsequently changed circumstances there is no relationship of landlord and the tenant between the parties, as such the release application is liable to be rejected on this score alone." PRAYER It is, therefore most humbly prayed that Hon'ble Court be pleased to allow the aforesaid amendments in the W.S. of opposite party, otherwise the opposite party will suffer irreparably. Date: 04.2024 Advocate Counsel for Opp. Party Om Prakash" 9. Considering the averment made in the written statement filed in the year 2016, the amendment application filed in the year 2024 withdrawing the admission made by defendant/ tenant cannot be permitted. 10. It is also material to mention that release application filed by landlord is pending for last more than 11 years and two earlier amendment applications filed by tenant were allowed by prescribed authority, as such, filing of third amendment application by tenant in the year 2024 is total abuse of process of law. 5 A227 No. 9531 of 2024 11. It is also material to state that proceeding of P.A. case No. 19 of 2014 has been expedited by this Court vide order dated 3.8.2023 in the petition filed on behalf of landlord. 12. The paragraph Nos. 22, 23 and 24 of the judgement of Hon'ble Apex Court in the case of Ram Niranjan Kajaria (Supra) will be relevant for perusal which are as under:- " 22 In the case before us, we are afraid, many of the factors referred to above, have not been satisfied. It is significant to note that Defendant Nos. 5 and 12, after moving an application for amendment withdrawing the admissions made in the written statement, have filed a substantive suit attacking the alleged relinquishment of their claim in the family property and we are informed that the trial is in progress. In that view of the matter, we do not propose to deal with the matter any further lest it should affect the outcome of the suit filed by Defendant Nos. 5 and 12 since the declaration sought in the suit filed in 2005 is to take away the basis of the said relinquishment of the claim in the suit property. However, as far as amendment is concerned, the attempt to wholly resile from the admission made after twenty five years, we are afraid, cannot be permitted. 23. Delay in itself may not be crucial on an application for amendment in a written statement, be it for introduction of a new fact or for explanation or clarification of an admission or for taking an alternate position. It is seen that the issues have been framed in the case before us, only in 2009. The nature and character of the amendment and the other circumstances as in the instant case which we have referred to above, are relevant while considering the delay and its consequence on the application for amendment. But a party cannot be permitted to wholly withdraw the admission in the pleadings, as held by this Court in Nagındas Ramdas v. Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242. To quote Paragraph-27: "27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or itself. Admissions, if true and clear, are by far the best proof of the facts admitted Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong." the compromise agreement, implied admission made in 6 A227 No. 9531 of 2024 (Emphasis supplied) 24. We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled." 13. Considering the entire facts and circumstances of the case, the impugned order dated 24.7.2024 passed by Additional Civil Judge Court No. 11 Allahabad in P.A. case No. 19 of 2014 is liable to be set aside and the same is hereby set aside. The amendment application (paper No. 38- Ga) filed by tenant/ respondent is hereby rejected. 14. The petition is allowed and the prescribed authority is directed to decide the P.A. case No. 19 of 2014 expeditiously preferably within period of two months from the date of production of certified copy of this order. September 16, 2025 Vandana Y. (Chandra Kumar Rai,J.) Digitally signed by :- VANDANA YADAV High Court of Judicature at Allahabad