1. This is a revision application directed against the order of the City Judge, Jammu, dated 17th December, 1969 whereby he has rejected the application for amendment of the written statement presented by the defendant.
2. The facts giving rise to this application are that the respondent Abdul Haq filed a suit for ejectment of two shops situate in Mohalla Ustad, Jammu, against the present petitioner and for arrears of rent amounting to Rs. 360/-. In paragraph 5 of the plaint the plaintiff stated that the defendant had sub-let the shops to one Kasturi Lal which gave a further ground of ejectment to the plaintiff. In reply to this paragraph 5 of the plaintiff the defendant categorically denied the sub letting and further mentioned that he had in no way damaged the suit property. Issues were struck in the case on 2-12-1968 and issue No. 2 pertains to subletting of the shops by the defendant. On 23-5-1969 however when the Page: 82defendant was leading evidence, he made an application for amending the written statement as stated above. This application was resisted by the plaintiff and the learned subordinate Judge heard arguments and ultimately rejected fee application. Against this order the present revision petition has been filed by the defendant. It has been argued by the learned counsel for the defendant-petitioner that the plaintiff had himself raised the plea of subletting of the shops by the defendant and there was already an issue struck by the Court with respect to this fact. Under Section 11(h) of the J. and K. Houses and Shops Rent Control Act of 1988 Act No. XXXIV of 1966 (hereinafter referred to as “the Act” in this Judgment) all sub-tenants had to be made parties. This sub-section reads as under:—
“(h) where the house or shop is reasonably required by the landlord either for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the house or shop is held:
Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment.”
3. Therefore the Court was not right in refusing to add Kasturi Lal as a co-defendant in the suit. The learned counsel further argued that the rule of amendment has to be construed liberally and amendments should usually be allowed because the other party can be compensated by way of costs. He has cited some authorities in support of his contention. The learned counsel for the plaintiff has argued that when the plaintiff mentioned clearly in his plaint that the defendant had sub-let his shop to Kasturi Lal and the defendant had categorically denied this fact in his written statement on that ground alone, he should not be permitted at the fag end of the case to introduce this Kasturi Lal as a party. The only object of the defendant by adding Kasturi Lal as a party was to get the case tried de novo and simply prolong the case in the Court as it is in the interests of a tenant to protract the proceedings of ejectment against him. He has further argued that such an amendment cannot be permitted under the law because it will introduce into the arena of dispute persons who have not the remotest connection with the same. He has referred me to the definition of the word “tenant” under the Act which is given under Section 2(6) and reads as under:—
“‘tenant’ means any person by whom or on whose account rent or any money liable to be paid for use of house or shop, is or but for a special contract would be payable for any such premises and includes legal representatives of such person; and, person continuing in possession after termination of tenancy in his favour but does not include any person placed in occupation of the house or shop by its tenant without the consent of the landlord.”
4. He has laid emphasis on the last part of this definition namely that a tenant does not mean a person who has been introduced or put into the occupation of the shop by its tenant without the consent of the landlord. The learned counsel also has given me some authorities.
5. In my opinion the question of the amendment in question has to be viewed in the light of the Provisions of Order 1, Rule 10 of the CPC because by this amendment the defendant prays for the addition of a party.
6. Under Order 1, Rule 10 of the CPC only such persons can be added as parties whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. Accepting the argument of the learned counsel for the respondent, I do not think that this is a case in which Kasturi Lal should be introduced because Kasturi Lal's introduction would be completely foreign to the scope of the litigation between the parties already before the court. It is nobody's case that Kasturi Lal was put in occupation of this shop with the consent of the respondent landlord. Therefore, according to the definition of the “tenant” he cannot be regarded as a tenant under the Act. Section 11(h) proviso quoted above and relied upon by the learned counsel for the petitioner applies only to those people who can be called sub-tenants. When a person is not to be considered as a tenant the question of his becoming a sub-tenant cannot arise because tenant is the genus and sub-tenant is the species. Under the ordinary law of Transfer of Property Act unless there is a clear restriction to the contrary, a tenant can sublet his tenancy. See Section 103(6) which says:—
“the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it…………”
7. But cases under the Act have to be determined and decided in terms of the provisions of the Act itself. Even if Kasturi Lal is in occupation of the suit property he has no locus standi to fight a case against the landlord of the said property. He cannot be even given a hearing. He will be bound by the decree, if any that may be passed against the Page: 83defendant in the suit. If such people were to be made parties then any employee or any number of them or any person who for the time being sat on the shop on behalf of the defendant had to be added as a party or parties. The relationship of landlord and tenant exists between the plaintiff and the defendant in this case. All other persons who may be for the time being in occupation of the shop will be bound by any decision that may be passed. They have no separate right to defend the suit nor can they be permitted to take any plea which the defendant is not permitted to take.
8. In my opinion the object of Order 6, Rule 17 of the CPC is not to permit an amendment which is forbidden by law because even the words of the rule do not warrant any such thing nor has any such authority been cited (because there can be none) where amendment has been allowed to introduce a plea or introduce a party which plea or existence of which party is against the provisions of any law. The Supreme Court has in AIR 1967 SC 96 held that amendment of pleadings introducing a new case cannot be allowed if a suit on such case is barred. Authorities have gone so far as to say that no plaintiff can be compelled to add any person as a party against his wishes. For instance see AIR 1962 Pat 357 in which it has been held that there are only two cases in which a person may be added as a party to a suit under sub-rule (2) of Rule 10 of Order I of the Code and they are:
(1) when he ought to have been joined as plaintiff or defendant, and is not so joined, or
(2) when without his presence the questions in the suit cannot be completely decided.
9. His Lordship further went to hold that:—
“On a proper construction of Order 1, Rule 10(2) of the CPC therefore a plaintiff cannot be compelled to add a person as a party defendant against his wishes and he cannot be compelled in spite of his protest, to fight the litigation against such a person against his choice. Where a person is neither a necessary nor a proper party, the Court has no jurisdiction to add him as a party under sub-rule (2) of Rule 10 of Order 1 of the Code….”
10. Now as the learned counsel for the parties have cited certain authorities I must take notice of them also. First let me refer to the authorities viz. AIR 1960 Punj 575 : AIR 1954 Nag 200 referred to by the learned counsel for the petitioner.
11. In AIR 1960 Punj 575 the point for determination was whether a party could add further pleas than taken already when an amended plaint was presented and it simply held that:—
“There is no rule of law, statutory or otherwise which restricts or limits the defendant when he is called upon to file a written statement to an amended plaint, to contest the plaintiff's claim, to any particular pleas. The general scheme of the Code of Civil Procedure and the policy underlying the law of pleadings does not suggest that the new written statement should be confined and restricted to the amended portion of the plaint and should not contain any other additional plea…….”
12. This authority is of no help to the petitioner.
13. In AIR 1954 Nag 200 the ratio decidendi is that:—
“the improbability of the convincing nature of the new defence sought to be raised is not in itself a ground or refusing to allow an amendment of the written statement by the inclusion of such defence.”
14. And regard being had to circumstances of that case amendment was allowed. But the point in that authority is not similar to the point in this case.
15. The learned counsel for the respondent referred me to AIR 1958 J. & K. 39; AIR 1968 Mad 287; AIR 1934 All 11; AIR 1942 Cal 153 : AIR 1953 Cal 15; AIR 1955 Bhopal 22.
16. In AIR 1958 J and K 39 a Division Bench of this Court held that:—
“In a rent suit the third party claiming to be owner of the property could not be made a party as it would convert a simple suit for arrears of rent into one for determination of the title to the property in respect of which the rent is claimed.
17. In AIR 1968 Mad 287 it is laid down that a Court has no power to add any person as a party unless he is a necessary or a proper party and a proper party has been defined as one without whose presence the question in a suit cannot be completely and effectually adjudicated upon, and the following criteria for adding a party has been laid down:—
(1) If for the adjudication of the “real controversy” between the parties on record, the presence of a third party is necessary, then he can be impleaded:
(2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject matter which could still have been decided in the pending suit itself;
(3) The proposed party has a defined subsisting direct and substantive interest in the litigation, which interest is either legal or equitable and which right is cognizable in law;
(4) Meticulous care should be taken to avoid the adding of a party if it is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation; and
(5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the sub-ject matter of the suit.”
18. In AIR 1934 All 11 the defendant was refused permission to amend his written statement by adding an additional plea on the ground of limitation.
19. In AIR 1942 Cal 153 in a suit by a mortgagee to enforce his mortgage, the transferee defendant pleaded in his written statement which was filed on 2-11-1933, that he was not bound or affected in anyway by the plaintiff's mortgage and accepted the position that the plaintiff could proceed against the properties allotted to the share of the other cosharer's mortgagor.
20. The suit was first decreed ex parte but was later restored. After restoration the defendant in additional written statement raised a new plea of subrogation by virtue of payment of certain prior mortgages etc. It was held that the case was not one of mere delay. The raising of new plea involved obvious injustice to the other party as it threw on the plaintiff an additional burden the effect of which would be to defeat the whole of the plaintiff's claim and the plea was not at all entertained.
21. In AIR 1953 Cal 15 it was held that although the costs do act as a sort of panacea for amendment and the court should be more liberal in allowing amendment of written statements than of plaints nevertheless no amendment of the written statement should be allowed which is no answer to the plaint and the cause of action pleaded therein and an immaterial and useless amendment should not be permitted by the Court.
22. In AIR 1955 Bhopal 22 If was held that in a case of arrears of rent by a landlord against the tenant no person who challenges the light of the plaintiff to sue may be joined so as almost to convert the suit into one based on title.
23. As 1 said earlier that amendment sought and the introduction of Kastori Lal into the picture is wholly foreign to the scope of the suit and Kastori Lal has no locus standi or status in the suit even to put in appearance and in view of the conduct of the defendant who denied any subletting by him in the initial written statement, this amendment would cause hardship to the plaintiff and enlarge the scope of enquiry and introduce persons and controversies in the suit which are even contrary to the relevant law.
24. In my opinion the amendment has been rightly rejected and this revision application is dismissed with costs.
25. Revision dismissed.