Yogeshwar Dayal, J.
(1) This is a petition u/Art. 227 of Constitution and is directed against an order dt. 10.9.81 passed by the learned Additional Rent Controller, Delhi permitting inter alia, amendment of the application filed by the respondent tenant for leave to appear and contest the eviction petition which had been filed by the petitioner-landlady for eviction of the respondent on the ground of bona fide personal requirement as contained in Second 4 (1)(e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act').
(2) The petitioner, Smt. Neera Grover, and her son Parveen Grover filed a petition, for ejectment of the respondent Shri Narinder Jaggi on the aforesaid ground. In the petition for eviction, it was interalia pleaded that the premises are residential and the same were let out for residential purposes to Narinder Jaggi. It was also pleaded as to how the petitioner became the owner of the property by way of family partition/settlement. It was further also pleaded that petitioner No. 2 had no other residential accomodation.
(3) On eviction petition being served in the manner provided, the respondent made an application for leave to appear and defend the application for eviction. In this application, the bona fides of requirement of the landlady were disputed. The petitioners being the exclusive owner of the property was disputed and family arrangement was described as a camouflage. It was also pleaded that the family settlement was a pre-planned programme to get the disputed property vacated.
(4) To the specific averment of the landlady in the eviction petition that the premises were for residential purpose there was no denial at all. Similarly, there was no plea that one Shri D.D. Jaggi, brother of the respondent is also a joint tenant. thereforee the position boils down to this that there was implied admission both as to the purpose of letting and as to the fact that only Narinder Jaggi was the tenant.
(5) Much after the application had been filed, during the course of the arguments, the respondent filed an application under Order Vi Rule 17 of Civil Procedure Code for leave to amend the application filed by the tenant for leave to appear and defend the eviction petition filed by the petitioners. In this application, the tenant, interalia, sought leave of the court to incorporate the following points :
(A)That petitioner no. 1 has got married to Shri M.G. Abrol;
(B)That the tenancy was in the joint names of Shri Narinder Jaggi and his brother Shri D.D. Jaggi;
(C)That premises was let for both residential cum-commercial purpose.
(6) The Additional Rent Controller took the view that he had the power to allow the amendment of application for leave to appear and defend. He also took the view that the amendments sought can be allowed and accordingly accepted the application for amendment.
(7) It will be noticed that the amendment for pleading subsequent events can certainly be allowed. (See : [1975]3SCR958 ; Pasupleti v. The Motor General Traders), The dispute before this court is regarding other two pleas being added by way of amendment namely (i) whether D.D. Jaggi was a joint tenant with Narinder Jaggi and (ii) whether the premises were let out both for residential and commercial purposes.
(8) It is well settled law that by amendment neither a new case can be permitted to be set up nor can an admission be retracted. In the present case, when the application for leave was filed, the tenant was well aware of the averments contaiend in the eviction petition. In the evication petition, it was specifically mentioned that the premises were let for residential purpose. In the application for leave to appear and contest, neither there was any denial of this fact nor any plea was taken that the letting purpose was otherwise. It is thus clear that there was implied admission by the tenant when he failed to deny the fact that the premises were let for residential purpose. No amendment which has the effect of withdrawing express or implied admission of a fact can be allowed in the circumstances of the present case.
(9) Similarly, the plea that Shri D.D. Jaggi is a joint tenant is again a new plea and cannot be permitted to be incorporated in the application and ought not to have been allowed. The plea that the petitioner No. 1 had married Mr. Abrol, being a subsequent event, could be allowed by way of amendment and has rightly been allowed. However, the aforesaid two pleas, namely that the premises were let out for residential-cum-commercial purposes and that Shri D.D. Jaggi was a joint tenant, could not be allowed by way of amendment. This is a case of material error in the exercise of jurisdiction by the learned Additional Rent Controller.
(10) The revision petition is accordingly accepted to the aforesaid extent and it is held that the pleas regarding Shri D.D. Jaggi being a joint tenant and the letting purpose cannot be allowed by way of amendments.