Holding

The requirement of written consent under the Rent Restriction Act cannot be satisfied by oral consent; the lease deed is valid; the eviction grounds are established; and the amendment of pleadings was procedurally defective, so the High Court’s order is set aside.

Summary

The owners of a commercial complex leased the premises to Goyal under a registered deed that expressly prohibited sub‑letting without the landlord’s written consent. Goyal subsequently allowed two occupants to occupy parts of the premises. The owners filed an eviction petition under Section 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act, 1949, alleging sub‑letting without written consent. The occupants sought to amend their written statements, claiming the lease was a sham and that Goyal was merely a rent‑collecting agent, and the High Court allowed the amendment, held that oral consent sufficed, and dismissed the eviction. The Supreme Court held that the statute’s requirement of written consent cannot be satisfied by oral consent, that the lease deed was valid, that the occupants could not rely on Sections 91 and 92 of the Evidence Act, and that the amendment of pleadings was procedurally improper. Consequently, the High Court’s order was set aside and the appeal allowed, restoring the earlier order for eviction.

Issues considered

The requirement of written consent under Section 13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act, 1949 and whether oral consent satisfies it.
Whether the lease deed between the owners and Goyal can be declared a sham and the effect of such a claim on the eviction petition.
The applicability of Sections 91 and 92 of the Evidence Act, 1872 to the occupants’ plea.
The propriety of allowing amendment of pleadings under Order 6 Rule 17, Order 8 Rule 9 and related provisions of the CPC.
The scope of the High Court’s revisional jurisdiction to overturn factual findings of the Appellate Authority.

Legislation cited

Code of Civil Procedure, 1908s. Order 6 Rule 17, s. Order 6 Rule 18, s. Order 8 Rule 9, s. Section 153
East Punjab Urban Rent Restriction Act, 1949s. 13(2)(ii)(a)
Indian Evidence Act, 1872s. 9, s. 91, s. 92

Subjects

evictionsub‑lettingwritten consentrent controlamendment of pleadingssham leaseEvidence ActCPCEast Punjab Urban Rent Restriction Act

Judgment

>
GURDIAL SINGH AND ORS. A
v.
RAJ KUMAR ANEJA AND ORS.

FEBRUARY 4, 2002

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

Rent Control and Eviction

East Punjab Urban Rent Restriction Act, 1949:
c
Section l 3(2)(ii)(a)-Eviction-Sub-/etting-Absence of written
consent-Tenant inducted sub-tenant on oral consent of the landlord-Validity
of-Held: When the law speaks of written consent "oral consent" cannot be
substituted in its place-Hence, ground of eviction made out.

Evidence Act, 1872: D

.. .. Section 9 l and 92-Deed of lease-Plea that the transaction described
in the lease deed was sham or fictitious not intended to be acted upon and
was camouflage of rent control legislation, not excluded

Code of Civil Procedure, 1908: E

Order 6 Rule 17-Pleadings-Amendment of-Procedure-Held:
Amendment applicant must set out specifically what is proposed to be omitted
.. from or altered or substituted in or added to the original pleadings-Stating
reasons for the proposed amendment is desirable-On prayer for amendment F
being allowed the original pleadings should incorporate the changes in such
manner as to clearly indicate shift on stand from original pleading made by
amendment-Right of opposite party to file consequential amendments-A new

- plea in the garb of consequential amendment shall not be permitted

- :I"
Words and Phrases:

"Consequential amendment"-Meaning of-In the context of 0.6. R.17
of the Code of Civil Procedure, 1908.
G

The appellants executed a registered Deed of Lease between
themselves and respondent No. 3 whereby respondent No. 3 was inducted H
817

-
.
818 SUPREME COURT REPORTS [2002] 1 S.C.R.

A as a tenant under the appellants in respect of the suit premises. Respondent
No. 3 inducted respondent Nos. 1 and 2 as sub-tenants in the suit premises.
...
The appellant-landlords filed an eviction petition under Seetion
13(2)(ii)(a) of the East Punjab Urban Rent Restriction Act, 1949 on the
ground that respondent No. 3 inducted respondents 1 and 2 as sub-tenants
B without the written consent of the appellants.

Respondent 1 and 2, after filing separate written statements, sought
for amendment in their written statements. It was stated in the application
for amendment that respondent No. 3 was not a tenant under the
C appellants but was only a rent collecting agent, that the registered Deed
of Lease was a sham and a fraud on the Act. The Rent Controller rejected
the prayer for amendment. However, the High Court allowed the prayer
for amendment.

The Rent Controller dismissed the eviction petition but the Appellate
D Authority allowed it. However, the High Court held that sub-letting in the
suit premises was with the oral consent of the appellants and allowed the
eviction petition. Hence this appeal.

Allowing the appeal, the Court

E HELD : 1.1. It is true that in spite of the availability of a registered
Deed of Lease executed between the appellants and respondent No. 3,
respondent 1 and 2 are not debarred from taking a plea that the
transaction between the appellants and respondent No. 3 was not what it
apparently appears to be just by reading of the Lease Deed. Respondents
1 and 2, by raising a plea which they have taken in the written statements,
F are not proposing to put in issue and let in oral evidence of the terms of
the Lease Deed. They are also not raising a plea or adducing oral evidence
for the purpose of contradicting, varying, adding to or subtracting from
the terms of the Lease Deed. They are not parties to the Lease Deed.
Therefore, Sections 91 and 92 of the Evidence Act, 1872 are not attracted.
G (825-H; 826-A-BI

1.2. Respondents 1 and 2 are impeaching the outward validity of
Lease Deed by submitting that what has been described on paper is not
the real intention of the parties to do; the Lease Deed and the transaction
spelled out by it was a sham or fictitious transaction not intended to be
H acted upon, rather intended to overcome or avoid the effect of Rent control
GU!WIAL SINGH v. R.K. ANEJA 819
Legislation. It is permissible to take such a plea and lldduce evidence to A
substantiate the same. The plea can be taken though the onus would lay
on the shoulders of the party taking such a plea. To discharge the onus,
direct evidence may or may not be available and it should be permissible
to draw an inference from tell-tale circumstances. However, the inference
to be drawn from the circumstances should be an irresistible one and not
merely a matter of conjectures and surmises. [826-C-D) B
2. Section 13(2)(ii) (a) of the East Punjab Urban Rent Restriction Act,
1949 contemplates a ground for eviction where the tenant has transferred
his rights under the Lease or sublet the building or any portion thereof
without the written consent of the landlord. When the law speak of written C
consent, the High Court could not have substituted 'oral consent' In place
thereof. (826-G)

3.1. There is loose practice prevalent in subordinate Courts In
entertaining and dealing with applications for amendment of pleadings.
It is a disturbing feature and, if such practice continues, it is likely to D
thwart the course of justice. The application moved by respondent Nos. 1
and 2 for amendment in their written statements filed earlier did not
specifically set out which portions of the original pleadings were sought
to be deleted and what were the averments which were sought to be added
or substituted in the original pleadings. What the amendment-applicants E
did was to give in their applications a vague idea of the nature of the
intended amendment and then annex a new written statement with the
applicntion to be substituted in place of the original written statement.
Such a course is strange and unknown to the procedure of amendment of
pleadings. A pleading, once filed, is u part of the record of the Court and
cannot be touched, modified, substituted, amended or withdrawn except F
by the leave of the Court. Order 8 Rule 9 of the Code of Civil Procedure,
1908 prohibits and pleadings subsequent to the written statement of a
defendant being filed other than by defence to a set-off or counter-claim
except by leave of the court and upon such terms as the court thinks fit.
(827-F-H; 828-A) G

3.2. Unless and until the Court is told how and in what manner the
-« pleading originally submitted to the court is proposed to be altered or
amended, the Court cannot effectively exercise its power to permit
amendment. An amendment may involve withdrawal of an admission
previously made, may attempt to introduce a plea or claim barred by H
820 SUPREME COURT REPORTS [2002] I S.C.R.

A limitation, or, may be so devised as to deprive the opposite party of a
valuable right accrued to him by lapse of time and so on. It is, therefore,
necessary for 11n amendment-applicant to set out specifically in his
epplication seeking leave of the Court for amendment in the pleadings,
es to what is proposed to be omitted from or uttered or substituted in or
·-
B added to the original ple11dings. (1128-D-E)

3.3. Court may allow or refuse the prayer for amendment in sound
exercise of its discretionary jurisdiction. It would, therefore, be better if
the reasons persuading the applicant to seek 11n amendment in the
pleadings as nlso the grounds explaining the delay, if there be 11ny, in
C Heking the amendment, are stated in the application so that the opposite •
party has 11n opportunity of meeting such grounds and none is taken by
surprise at the hearing on the application. (1129-B)

Pleadings: Principles and Practice by Jacob and Goldrein 1990 Roman
&Jn., referred to.
D 4.1. Once a prayer for amendment is allowed the original pleading
should i11corporate the changes in a different ink or an amended p!eeding
mny be filed wherein with the use of a highlighter or by underlining in
red the cbnnge5 made may be distinctly shown. The amend1:1ents will be
icicorporated in the plellding by the pnrty with the leiive of the Court and
E within the time limited for that purpose or else within fourteen days lls
provided by Order 6 Rule Ill CPC. The Court or an officer authorized
by the Court in this behalf, may co1apare the originlll and the emended
plellding in the light of the contents of the amendment application 1md
the order of the Court permitting sa1:1e a11d certify whether the amended
pleading conforms to the order of the Court permitting the ame11dment.
F Such practice nccords with the provisions of the Code of Civil Procedure
and also preserves the sanctity of record of the Court. It is also conducive
to the ends of justice inasmuch as by a bare look 11t the amended pleading
the Court would be able to appreciate the shift in stand if any, between
the original pleading and the amended pleading. These advantages are in
G addition to convenience and achieving maintenance of discipline by the
parties before the Court. Amendments and consequential amendments,
allowed by the Court and incorporated in the original pleadings, would
enable only one set of pleading being available on record and that would
avoid confusion and delay at the trial. (830-D-G)

H Halsbury's Laws of England 4th &Jn. Vol. 36 para 63 pp. 48-49 and
GURDIAL SINGH v. R.K. ANEJA [ R.C. LAHOTI, J.] 821
Stone and Iyer : Pleadings 2nd &in., referred to. A
4.l. When one of the parties has been permitted to amend his
.' pleading, an opportunity has to be given to the opposite party to amend
his pleeding. The opposite party shall also have to make an cpplication
under Order 6 Rule 17 CPC, which, of course, would ordinarily and
liberclly be allowed. Such amendments are known as consequential B
amendments. The expression "consequential amendment" is judicially
recognized. While granting leave to amend a pleading by way of
consequential amendment the Court shall see that the plea sought to be
introduced is by way of an answer to the plea previously permitted to be
incorporated by way of amendment by the opposite party. A new plea C
cannot be permitted to be ndded in the garb of a consequential amend-
ment, though it can be applied by way of an independent or primary
amendment. (831-D-E]
Bi/cram Singh v. Ram Baboo, AIR (1981) SC 2036, relied on.

4.3. Some of the High Courts permit, as a matter of practice, D
, additional pleading, by way of response to the amendment made in the
pleadings by the opposite party, being filed with the leave of the Court.
Where it is permissible to do so, care has to be taken to see that the
additional pleading is confined to an answer to the amendment mnde by
the opposite party and is not misused for the purpose of setting up E
altogether new pleas springing a surprise on the opposite party and the
Court. (831-F(

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2896 of
2001.

From the Judgment and Order dated 17 .2.2000 of the Punjab & Haryana F
High Court in C.R. No. 3300 of 1999.

Yashank Adhyaru, Ms. K.S. Mehlwal and M.C. Dhingra for the
Appellants.

R.K. Talwar and Yash Pal Dhingra for the Respondents. 0
-t The Judgment of the Court was delivered by

R.C. LAHOTI, J. There is a property described as 'Gurdial Complex'
situated at SCO 1108-1109, Sector 22-B, Chandigarh. Admittedly, the property
is owned by Sqn. Ldr. Gurdial Singh (Retd.), Mrs. Jasmer Kaur, Mrs. Jagjit H
822 SUPREME COURT REPORTS (2002] 1 S.C.R.

A Kaur, Miss Sonia Bal and Vikram Singh Bal. Gurdial Singh holds general
power of attorney on behalf of other four co-owners. Collectively they will
be referred to as 'Owners' for the sake of brevity.

Kashmiri Lal Goyal, Advocate, defendant No. I before the Rent
Controller (respondent No. 3 herein) claims to be a tenant, also alleged to be
B so by owners and will be referred to as 'Goyal'. Out of the persons inducted
in possession of the premises by Goyal, only two, namely Raj Kumar Aneja
and Rakesh Shanna, Advocate were revision petitioners before the High
Court and are respondents Nos. 1 and 2 before us. There is a dispute as to
the character of occupation and the status of these two - whether they are •
C sub-tenants or tenants under the owners. They will be collectively referred to
as 'occupants'.

On 6th January, 1988, a registered Deed of Lease was executed between
owners and Goyal whereby 750 sq. ft. area on the first floor of Gurdial
Complex was taken on lease by Goyal on a monthly rent of Rs. 5,000. The
D duration of lease was to expire on 31st December, 1990. However, on 26th
April, 1990, there was a fresh Deed of Lease executed between owners and
Goyal whereby a portion of the first floor of Gurdial Complex, shown in
green lines annexed with the Deed of Lease, was taken on rent at the rate of
Rs. 16,000 p.m. by Goyal. The lease commenced w.e.f. 1st May, 1990.
E Duration of lease was three years, tenninable even in between by three months'
notice on either side. The relevant tenns of the lease may briefly be noticed.
The lease rent of Rs. 16,000 p.m. was payable in advance by seventh day of
the current calendar month and if that was so done, Goyal was entitled to a
rebate of Rs. 3,000. An amount of Rs. 26,000 was deposited as interest free
security with the owners to be retained during the currency of the lease and >

F till Goyal remained in occupation of the premises as lessee. In specified cases
of delay in payment of lease rent, interest @ 18% was leviable for the period
of delay. Goyal was to vacate the leased premises on or before 30th April,
1993. However, the lease agreement could be renewed for another period of
three years by mutual consent and agreement in writing in which case lease
G rent was to be revised with an increase in rate of rent by 15%. There could
be yet another renewal of three years expiring with 30th April, 1999 subject
to another upwards revision in rate of rent at 15%. However, the incentive
of Rs. 3,000 for advance payment of rent before seventh day of current
month was to remain the same in spite of first and second renewals. it was
expressly stipulated that Goyal would not sublet any portion of the leased
H premises, partially or in full, to anyone under any condition and circumstances.
> GURDIAL SINGH v. R.K. ANEJA [LAHOTJ, J.] 823
In the event of subletting, apart from legal consequences flowing from A
subletting, Goyal was to lose the privilege of earning rebate of Rs. 3,000 p.m.
and also to become liable to pay a penalty @ Rs. 5,000 p.m. for the entire
period till the premises were got vacated from the sub-tenants and possession
handed back to owners.

On 16.10.1993, owners filed a petition under Section 13 of East Punjab B
Urban Rent Restriction Act, 1949 impleading Goyal and other alleged sub-
lessees including the two occupants, namely, respondents Nos. 1 and 2 herein.
It was alleged that defendants Nos. 2 to 8 were inducted as sub-lessees by
Goyal, the defendant No. I, and let in exclusive possession of different parts
• of the tenancy premises by allowing cabins to be constructed without the
written consent of owners; that drastic additions and alterations made in the C
premises have materially impaired the value and utility of the premises and
that Goyal had failed to pay or tender the monthly rent of the premises from
1.5.1993 and was running into arrears. Goyal, in his written statement, admitted
that he was a tenant under the Deed of Lease dated 26.4.1990 but pleaded
that rent upto 30.4.1993 was paid to owners whereafter payment was D
discontinued as the lease was not renewed. He also pleaded that the cabins
were fabricated and sublet on the oral request of Gurdial Singh himself. At
the end of the written statement, Goyal submitted that he was ready to vacate
the premises and he had no objection if necessary orders of eviction were
passed against the sub-tenants.
E
The occupants filed separate written statements. In substance the plea
taken by them was that there did not exist any relationship of landlord and
tenant between Goyal and them. The appellants (i.e. the petitioners thereat)
were put to strict proof of their ownership and existence of landlord-tenant
relationship between them and Goyal under the Lease Deed said to have been F
executed and registered between them. They pleaded that they were inducted
into possession of the premises as licensees under agreements duly executed
between Goyal and themselves and, therefore, they were not tenants under
Goyal so as to be held sub-tenants and expose themselves to the risk of
eviction under Section 13(2)(ii)(a).
G
Replications were filed. On 7. 7 .1994, the occupants sought for
amendment in their written statements. It was stated in the applications seeking
amendment that subsequent to the filing of the written statement it had come
to the knowledge of the occupants that Goyal was not a tenant under owners
but on the contrary he was simply an agent appointed for collecting the rent
and this arrangement appointing Goyal as rent collecting agent, but outwardly H
824 SUPREME COURT REPORTS [2002] I S.C.R.

A as a tenant, and the tenant i.e. Goyal inducting the occupants as licensees,
was a fraud on Rent Restriction Act by devising means for short circuiting
the beneficial provisions intended .to protect tenants. Each of the applications ...
for amendment was accompanied by a new written statement sought to be
placed on record. This written statement was completely a r..ew written
B statement substantially in departure from the pleadings contained in the original
or first written statement filed by the occupants.

The Rent Controller, by order dated 24.2.1995, rejected the prayer for
amendment. The occupants preferred a revision. By order dated 16.8.1995,
the civil revision was allowed. A perusal of the order of the High Court •
C shows that there was no indepth comparative examination of the first written
statement and the second written statement which was proposed to be filed
as amended written statement. The High Court passed a brief order wherein
a learned single Judge of the High Court expressed - "Without going into the
merit of the controversy 1 am of the view that amendment sought is just and
proper in the circumstances of the case and will help the Court in finally
D adjudicating the contentious issues raised by the parties. Accordingly, I accept
the revision petition, set aside the order of the Rent Controller and allow the
petitioners' application for amendment of the written statement. Amended
written statement be filed within a fortnight from today". The principal plea
now urged by the occupants through their amended written statements is that
E Goyal, defendant No. 1, was an agent of the owners for collecting the rent
from the defendants Nos. 2 to 8 and the entire arrangement between the
petitioners and their agent, the defendant No. l, was designed for
circumventing the law and amounted to playing fraud on the defendants.
Goyal, the defendant No. 1, is a practicing advocate and by no stretch of
imagination can be said to be in need of an accommodation at a monthly rent •
F of Rs. 16,000 p.m. Goyal simply collected the rent and handed over the same
to the petitioner Gurdial Singh. This arrangement was a brain wave of the
petitioner Gurdial Singh and the defendant Goyal to overcome the chilling
effects of East Punjab Rent Restriction Act, 1949. The tenancy between
owners and Goyal was a sham transaction. The arrangement, which outwardly
G appears to be a tenancy between owners and Goyal and licensing by Goyal
in favour of the occupants, was in effect the occupants being inducted as
tenant of owners. Gurdial Singh was himself running his business in the same
i:Omplex and was well aware from the very beginning of cabins having been
constructed and then let out to the occupants by inserting advertisement in
the newspapers. The rebate of Rs. 3,000 provided in the Deed of Lease
H between owners and Goyal is a mode of paying commission for collection of
GURDIAL SINGH v. R.K. ANEJA [R.C. LAHOTI, J.] 825
rent by Goyal. It was prayed that a court of law should not uphold such an A
arrangement which circumvented the law and amounted to playing fraud.

In the oral evidence, Gurdial Singh examined himself and proved the
Deed of Lease executed between Goyal and himself. On behalf of the occupants,
the two occupants (respondents Nos. 1 and 2 herein) examined themselves.
Narinder Pal Singh, RW3 who had at one point of time occupied a cabin in B
the suit premises but had subsequently vacated and Jagdish Singh, RW4,
who was still occupying a cabin stated that Goyal was merely a collecting
agent for Gurdial Singh. The statement of Narinder Pal Singh does not give
any facts but is merely his ipse dixit that Goyal was a collecting agent.
• Jagdish Singh is in litigation with Goyal. Anup Singh, RWS is a tenant on the C
second floor who deposes to a similar arrangement having been devised by
Gurdial Singh and Goyal in respect of the second floor. He too is having
criminal litigation with Goyal.

On an evaluation of evidence, the Rent Controller upheld the pleas
raised in the written statements and directed the eviction petition to be D
dismissed. Owners preferred an appeal which was allowed. The Appellate
Authority held that there were no weighty and material circumstances enabling
drawing of an inference contrary to the apparent tenor of the transaction and
relationship created by documents in writing. The Appellate Authority found
the averments made in the eviction petition proved and hence directed the E
tenant- Goyal and sub-tenants-the occupants to be evicted. The occupants
p~eferred a revision petition before the High Court. The High Court has
entered into re-evaluation of the entire evidence, drawn factual inferences
and, based thereon, held that the Lease Deed incorporated a sham transaction
intended to get over the restrictions of the Rent Act. The High Court also
held that subletting and changes in the suit premises were with the oral F
consent of Gurdial Singh. In the result, the High Court has directed the
eviction petition to be dismissed. The owners, petitioners before the Rent
Controller, have preferred this appeal by special leave.

Having heard the learned counsel for the parties we are of the opinion G
that the appeal deserves to be allowed and judgment of the High Court
deserves to be set aside.

It is true that in spite of the availability of a registered Deed of Lease
executed between owners and Goyal, the occupants are not debarred from
taking a plea that the transaction between owners and Goyal was not what H
826 SUPREME COURT REPORTS [2002] I S.C.R.

A it apparently appears to be just by reading of the Lease Deed. The occupants,
by raising a plea which they have taken in the written statements, are not
proposing to put in issue and let in oral evidence of the terms of the Lease
Deed. They are also not raising a plea or adducing oral evidence, for the
purpose of contradicting varying, adding to or subtracting from the terms of
B the Lease Deed. They are not parties to the Lease Deed. Therefore, Sections
91 and 92 of the Evidence Act, 1872 are not attracted. The occupants are
impeaching the outward validity of Lease Deed by submitting that what has
been described on paper is not the real intention of the parties to do; the
Lease Deed and the transaction spelled out by it was a sham or fictitious
transaction not intended to be acted upon rather intended to overcome or
C avoid the effect of Rent Control Legislation. It is permissible to take sue~. a
•
plea and adduce evidence to substantiate the same. The plea can be taken
though the onus would lay on the shoulders of the party taking such a plea.
To discharge the onus, direct evidence may or may not be available and it
would be permissible to draw an inference from tell-tale circumstances.
However, the inference to be drawn from the circumstances should be an
D irresistible one and not merely a matter of conjectures and surmises.

In the present case, the testimony of two independent witnesses, namely
Narinder Pal Singh and Jagdish Singh (RW3 and 4), does not lead us anywhere.
Anup Singh, RW5 does not depose to anything about first floor which is the
E suit accommodation. The rest is oath against oath - Gurdial Singh on one side
and the occupants on the other side. We do not have the benefit of testimony
of the star witness, Goyal, who has conveniently chosen to keep himself away
from the witness box except for admitting in part the claim of owners as
contained in his pleadings. In such a case, we do not think the High Court
could have, in exercise of its limited revisional jurisdiction, reversed the
F finding of fact arrived at by the Appellate Authority. The High Court has also
erred in holding "oral consent for subletting and making the changes" and
finding availability of grounds for eviction under Section 13(2)(ii)(a) and
Section 13(2Xiii) of the Act. Section 13(2Xii) contemplates a ground for eviction
where the tenant has transferred his rights under the Lease or sublet the
G building or any portion thereof without the written consent of the landlord.
When the law speaks of written consent, the High Court could not have
substituted 'oral consent' in place thereof. Between owners and Goyal there·
is a registered Deed of Lease bringing into existence landlord-tenant
relationship which, the oral evidence as adduced by the parties and available
on record, is not enough to show that the transaction was sham or fictitious.
H Between the occupants and Goyal there are agaii1 deeds in writing showing
GURDIAL SINGH v. R.K. ANEJA [R.C. LAHOTI, J.] 827
nature and character of occupation of the occupants. The occupants have A
been placed in possession of i;:abins and given right to use the same.
Agreements executed between the occupants and Goyal appoint licence fee
for the use of the cabin premises, payable month by month and in advance
on or before third day of each month. Electricity charges are to be borne by
the licensees. The cabins are to be used for office purpose. The licence is for B
a period of eleven months and renewable by mutual consent subject to
escalation of licence fee at a minimum of 5%. Either party seeking eviction of
the licensee can do so by serving a three months' notice. The minimum period
of licence is eleven months before which the licensees cannot vacate the
• premises. Licensee has to arrange for fire insurance of the cabins/premises
and has to bear the loss, if any, caused by fire and so on. The Lease Deed C
executed between owners and Goyal does not permit licensees being inducted
by Goyal and on the contrary contains specific prohibition against subletting.
A clear case for eviction under Section 13(2XiiXa) was made out. So also
constructing several cabins in the hall enabling use of several cabins as
independent office premises certainly impairs materially the value or utility of
the building which was a hall and, therefore, attracts applicability of Section D
l 3{2Xiii). The High Court was not justified in holding that availability of the
' said two grounds was not made out. We are, therefore, of the opinion that
the order of the High Court cannot be sustained. However, by way ofabundant
caution, we would like to make it clear that we have held the arrangement
between the owners and Goyal to be real as evidenced by the Deed of Lease E
and not a sham transaction on the evidence adduced and material placed on
the record of this case. This factual finding would not preclude a different
finding being arrived at in any other approprlate case based on adequate
pleadings and evidence of that case.

Before parting we feel inclined to make certain observations about the F
loose practice prevalent in subordinate Courts in entertaining and dealing
with applications for amendment of pleadings. It is a disturbing feature and,
if such practice continues, it is likely to thwart the course of justice. The
application moved by the occupants for amendment in their written statements
filed earlier did not specifically set out which portions of the original pleadings G
were sought to be deleted and what were the averments which were sought
to be added or substituted in the original pleadings. What the amendment
applicants did was to give in their applications a vague idea of the nature of
the intended amendment and then annex a new written statement with the
application to be substituted in place of the original written statement. Such
a course is strange and unknown to the procedure of amendment of pleadings. H
828 SUPREME COURT REPORTS (2002] 1 S.C.R.

A A pleading, once filed, is a part of the record of the Court and cannot be
touched, modified, substituted, amended or withdrawn except by the leave of
the Court. Order 8 Rule 9 of CPC prohibits any pleadings subsequent to the ,..
written statement of a defendant being filed other than by way of defence to
a set-off or counter-claim except by the leave of the Court and upon such
B terms as the Court thinks fit. Section 153 of CPC entitled "General power to
amend'' provides that the Court may at any time, and on such terms as to
costs or otherwise as it may think fit, amend any defect or error in any
proceeding in a suit; and all necessary amendments shall be made for the
purpose of determining the real question or issue raised by or depending on
such proceeding. Order 6 Rule 17 of the CPC confers a discretionary jurisdiction
C on the Court exercisable at any stage of the proceedings to allow either party
to alter or amend his pleadings in such manner and on such terms as may
be just. The rule goes on to provide that all such amendments shall be made
as may be necessary for the purpose of determining the real questions in
controversy between the parties. Unless and until the Court is told how and
in what manner the pleading originally submitted to the Court is proposed to
D be altered or amended, the Court cannot effectively exercise its power to
permit amendment. An amendment may involve withdrawal of an admission
previously made, may attempt to introduce a plea or claim barred by limitation,
or, may be so devised as to deprive the opposite party of a valuable right
accrued to him by lapse of time and so on. It is, therefore, necessary for an
E amendment applicant to set out specifically in his application, seeking leave
of the Court for amendment in the pleadings, as to what is proposed to be
omitted from or altered or substituted in or added to the original pleadings .
•
In Pleadings : Principles and Practice by Jacob & Goldrein (1990 Edition)
it is stated that a party served with a pleading which is subsequently amended
F may not amend his own pleading and may rely on the rule of implied joinder
of issue but. "if he does amend his own pleading, he is not entitled to
introduce aqy amendment that he chooses. He can only make such
amendments as are consequential upon the amendments made by the opposite
partv" (at page 193). "In all cases except where amendment is allowed without
G leave, the party seeking or requiring the amendment of any pleading must
apply to the Court for leave or order to amend. The proposed aniendment
should be specified either by stating them, if short, in the body of the
summons, notice or other application or by referring to them therein. In
practice leave to amend is given only when and to the extent that the
proposed amendments have been properly and exactly formulated, and in
H such case, the order giving leave to amend binds the party making the
GURDIAL SINGH v. R.K. ANEJA [R.C. LAHOTI, J.) 829
amendment and he cannot amend generally." (at pages 206-207). A
The Court may allow or refuse the prayer for amendment in sound
exercise of its discretionary jurisdiction. It would, therefore, be better if the
reasons persuading the applicant to seek an amendment in the pleadings as
also the grounds explaining the delay, if there be any, in seeking the amendment,
are stated in the application so that the opposite party has an opportunity B
of meeting such grounds and none is taken by surprise at the hearing on the
application.

How an amendment allowed by the Court is to be effectuated in the
pleadings? English practice in this regard is stated in Halsbury' s Laws of C
England (Fourth Edition, Vol. 36, para 63, at pages 48-49) as under:-

63. Mode of amendment. A pleading may be amended by written
alterations in a copy of the document which has been served, and by
additions on paper to be interleaved with it if necessary. However,
where the amendments are so numerous or of such nature or length D
that to make written alterations of the document so as to give effect
to them would make it difficult or inconvenient to read, a fresh document
must be prepared incorporating the amendments. If such extensive
amendment is required to a writ it must be reissued. An amended writ
or pleading must be indorsed with a statement that it has been amended,
specifying the date on which it was amended, the name of the judge, E
master or registrar by whom any order authorizing the amendment was
made and the date of the order; or, if no such order was made, the
number of the rule in pursuance of which the amendment was made.
The practice is to indicate any amendment in a different ink or type
from the original, and the colour of the first amendment is usually red. F

Stone and Iyer in Pleadings (Second Edition) state the practice in regard to
incorporating amendments in pleading as under (at page 165):-

"In England it often happens that before the case comes into Court
and while still the Master is exercising the powers conferred by a G
Summons for Directions, Counsel seek leave to amend not once but
several times. The practice is to amend first in red and make later
amendments in different coloured inks. A practice which we think
might, with advantage, be followed would be to place bc;fore the
Court, as one places before a Master in England, the proposed
amendments. These may or may not be allowed as proposed, or may H
830 SUPREME COURT REPORTS (2002] I S.C.R.

A be altered before leave is given. Leave having been given, a new
plaint or written statement showing the old pleading and with the
amendments written or typed in might then be prepared and taken: on
the file of the Court. In cases where the addition is substantial it may
be necessary to deliver a copy of the pleading as amended. If old
matter is scored out, it must be done in such a manner as to show
B the original pleading and the alteration. Under Order VI, Rule 17,
C.P.C., a party has apparently to amend his pleading while it is in
Court. Under the old Code it was returned to him for amendment. The
-
Court may even now have power to return it if it is necessary to do
so. Where leave to amend is asked for, the actual amendment must be •
c formulated before leave is given. If it is proposed to apply for
amendment, it is desirable to inform the other side so that there can
be no question of surprise and no adjournment may be necessary on
allowing the amendment. Pursuant to the leave granted the proceedings
should be amended before the judgment is pronounced."

D Thus, once a prayer for amendment is allowed the original pleading
should incorporate the changes in a different ink or an amended pleading may
be filed wherein with the use of a highlighter or by underlining in red the
changes made may be distinctly shown. The amendments will be incorporated
in the pleading by the party with the leave of the Court and within the time
E limited for that purpose or else within fow1een days as provided by Order 6
Rule 18 of the CPC. The Court or an officer authorized by the Court in this
behalf, may compare the original and the amended pleading in the light of the
contents of the amendment application and the order of the Court permitting
the same and certify whether the amended pleading conforms to the order of
the Court permitting the amendment. Such practice accords with the provisions •
F of Code of Civil Procedure and also preserves the sanctity of record of the
Court. It is also conducive to the ends·of justicr in as much as by a bare look
at the amended pleading the Court would be able to appreciate the shift in
stand, if any, between the original pleading and the amended pleading. These
advantages are in addition to convenience and achieving maintenance of
G discipline by the parties before the Court. Amendments and consequential
amendments, allowed by the Court and incorporated in the original pleadings,
would enable only one set of pleadings being available on record and that
would avoid confusion and delay at the trial. Most of the High Courts in the
country follow this practice, if necessary by making provisions in the rules
framed by the High Court for governing the subordinate Courts and their
H Original Side, ifthere be one. Jn fact in the State of Punjab and Haryana and
GURDIAL SINGH v. R.K. ANEJA [R.C. LAHOTI, J.J 831
Union Territory of Chandigarh, there is a local amendment whereby the text A
of Rule 17 in Order 6 of the CPC has been renumbered as sub-rule {l) and
the following sub-rule (2) added:-

"(2) Every application for amendment shall be in writing and shall state
the specific amendments which are sought to be made indicating the
words or paragraphs to be added, omitted or substituted in the original B
pleading"

The abovesaid rule appears to have been completely over-looked while moving
the application for amendment. It is expected that the Courts in Punjab,
Haryana and Chandigarh would follow the rule in letter and spirit.
c
When one of the parties has been permitted to amend his pleading, an
opportunity has to be given to the opposite party to amend his pleading. The
opposite party shall also have to make an application under Order 6 Rule 17
of the CPC which, of course, would ordinarily and liberally be allowed. Such
amendments are known as a consequential amendments. The phrase D
"consequential amendment" finds mention in the decision of this Court in
Bi/cram Singh & Ors. v. Ram Baboo & Ors., AIR (1981) SC 2036. The
expression is judicially recognized. While granting leave to amend a pleading
by way of consequential amendment the Court shall see that the plea sought
to be introduced is by way of an answer to the plea previously permitted to
be incorporated by way of amendment by the opposite party. A new plea E
cannot be permitted to be added in the garb of a consequential amendment,
though it can be applied by way of an independent or primary amendment.

Some of the High Courts permit, as a matter of practice, an additional
pleading, by way of response to the amendment made in the pleadings by
opposite party, being filed with the leave of the Court. Where it is permissible F
to do so, care has to be taken to see that the additional pleading is confined
to an answer to the amendment made by the opposite party and is not
misused for the purposF of setting up altogether new pleas springing a
surprise on the opposite 'party and the Court. A reference to Order VI Rule
7 of the CPC is apposite which provides that no pleading shall, except by way G
of amendment, raise any new ground of claim or contain any allegation of fact
inconsistent with the previous pleadings of the party pleading the same.

In the case before us the application for amendment moved by the
occupants did not satisfy the abovesaid requirements. Again we have grave
doubts if the High Court could have, in exercise of its revisional jurisdiction, H
832 SUPREME COURT REPORTS [2002] I S.C.R.

A granted leave to amend the written statements by a cursory order. However,
the trial has taken place on the amended pleadings and yet the occupant-
defendants have failed on merits. We therefore leave the matter at that only. ,..
The appeal is allowed, the impugned judgment of the High Court is set
aside, the judgment of the Appellate Authority is restored. No order as to the
B costs.

v.s.s. Appeal allowed.

'

•