M. Jagannadha Rao, C.J.
(1) The appellants are plaintiffs in Suit No. 2000 of 1989. They have filed this appeal under clause 10 of the Letters Patent (Lahore) read with Section 10 of the Delhi High Court Act, 1966. The appeal has been preferred against an order in is No. 2840/93 allowing a second amendment of the written statement filed by the respondents.
(2) The respondents, eight in number, were in possession of a shop in South Extension Part I, New Delhi under a lease dated 2.12.1986. The rent was Rs. 6000.00 per month. After the Delhi Rent Control Act was amended in December,1988 exempting buildings with rent above Rs. 3500.00 p.m. from the purview of the Rent Control Act, the premises in question came out of the purview of that Act. Then the appellants issued notice on 29.5.89 under Section 106, Transfer of Property Act, and filed the present suit for possession in 1989. In the original written statement, the respondents accepted that eight of them were in possession under a single lease dated 2.12.1986 but claimed that the lease was a perpetual lease. They also stated that defendants 2 and 6 relinquished their rights in the tenancy in favor of the other defendants. In December,1990, they amended the written statement raising a plea under Section 53A, Transfer of Property Act. Now they have filed present is 2840/93 for further amendment saying that, to start with, there were 8 tenancies each and the rent that was payable was split up into (Rs. 6000/8) = Rs. 750.00 p.m. for each defendant and hence the Rent Control Act continued to be applicable even after amendment of the Act in December,1988. This is 2840/93 was allowed by the learned Single Judge, subject to payment of Rs. 1500.00 as costs and questioning the same, plaintiffs have filed this appeal.
(3) The defendants-respondents raised two preliminary objections. The first one was that the appeal was not maintainable under Section 104 read with Order 43 Rule 1 Cpc, that Clause 10 of Letters Patent (Lahore) could not enlarge the right of appeal as held by a Full Bench of this Court in University of Delhi vs . Hafiz Mohd. Said : AIR1972Delhi102 and that in any event, the order was not a 'judgment'. The second objection was that the costs awarded by the learned Single Judge for allowing the amendment were sent to and received by the appellants' lawyer's clerk and hence the appeal could not be maintained. Finally the contention on merits was that the amendment of written statement was rightly allowed by the learned Single Judge.
(4) The following points, thereforee, arise for consideration:
(1)WHATare the circumstances in which an order passed under Order 6 Rule 17 Civil Procedure Code could be treated as a 'judgment' for purposes of clause 10 of Letters Patent (Lahore) or Section 10 of Delhi High Court Act so as to enable Letters Patent to be filed? (2)Whether the costs of Rs. 1500.00 awarded by the learned Judge were received by the appellant's lawyer's clerk under due authority of the appellants and the appellants were estopped from filing this appeal? (3)Whether, on merits, the amendment was one which ought to have been allowed?
Point 1
(5) The shop in question is in South Extension Part I, New Delhi. The building was, according to the plaint, leased to eight persons under a single tenancy on 2.12.1986 at Rs. 6000.00 p.m. In December,1988, the Delhi Rent Control Act was amended exempting buildings with rents above Rs. 3500.00 p.m. from the purview of the Act. The plaintiffs-appellants gave notice under Section 106 of the Transfer of Property Act on 29.5.1989 and filed the suit in 1989 for eviction. The Written statement was filed for the lessees accepting the plaintiff's case of single tenancy but raising a plea of perpetual tenancy and other pleas. Later, written statement was amended in December,1990, raising a plea under Section 53A of the Transfer of Property Act. Now is 2840/93 raising a new plea of separate tenancies in favor of 8 persons, i.e. undivided shares in shops each for rent of (Rs. 6000/8) Rs. 750.00 p.m. is raised and it is pleaded that Rent Control Act continues to apply because rent payable by each defendant is below Rs. 3500.00 p.m. The learned Single Judge allowed the amendment. The question arises whether the said order is appealable under Clause 10 of Letters Patent (Lahore) read with Section 10 of the Delhi High Court Act. This depends on whether the order amounts to a 'judgment', as understood under Clause 10 of Letters Patent (Lahore) and Section 10 of Delhi High Court Act, 1966.
(6) At the outset, it must be pointed out that reliance by the respondents' counsel on the Full Bench judgment of the Delhi High Court in University of Delhi vs . Hafiz Mohd. Said : AIR1972Delhi102 is misconceived as the said judgment was overruled by the Supreme Court in Jugal Kishore Paliwal vs . S. Sat Jit Singh : (1984)1SCC358 , following the judgment in Shah Babulal Khimji vs . Jayaben D. Kania : [1982]1SCR187 . It is true that in the Full Bench, this Court held that only appeals falling within Order 43 Rule 1 could be filed under Section 10 of the Delhi High Court Act and none other. But, the Supreme Court, in Jugal Kishore Paliwal's case held that the word 'judgment' in Section 10 of the Delhi High Court was wider and for judging whether appeals lay against orders of learned Single Judges on the original side, the tests laid down in Shah Babulal's case had to be followed. The Full Bench Judgment was overruled. Hence no reliance can be placed by the respondents on the Full Bench decision of this Court.
(7) In regard to amendments of pleadings and as to whether certain orders passed under Order 6 Rule 17 Civil Procedure Code would amount to 'judgments', we have to refer to three decisions of the Supreme Court.
(8) The first decision is the one in Shanti Kumar R. Langi vs . The House Insurance Co. of New York : [1975]1SCR550 . In that case, an amendment of plaint was al- lowed. The suit was filed in 1964 claiming 6 months' salary in lieu of notice and gratuity for 16 years of service. The plaintiffs request for amendment of plaint for pension at Rs. 850.00 p.m. having been refused, plaintiff sought amendment of plaint for claiming Rs. 68,000.00 as damages in relation to his right to pension. The amendment was allowed. The employer preferred a Letters Patent Appeal and the appeal was allowed. Plaintiff appealed to Supreme Court contending that no Letters Patent Appeal lay against the order allowing amendment of plaint. This contention was rejected by the Supreme Court (para 4) holding that in judging whether an order was a 'judgment', 'each case must be looked into in order to find out as to whether there was a determination of any right or liability of the points affecting the merits of the controversy between the parties'. In the case before them, the amendment would relate back to the date of suit and would affect a plea of limitation. That affected a vital right of the plaintiff. Hence the Letters Patent appeal was maintainable. Ray C.J. observed:
'THE right to claim that an introduction of a cause of action by amendment is barred by limitation is founded on immunity from a liability. A right is an averment of entitlement arising out of legal rules. A legal right may be defined as an advantage or benefit conferred upon a person by a rule of law. Immunity in short is no liability. It is an immunity from the legal power of some other person. The correlative of immunity is disability. Disability means the absence of power. The appellant in the present case because of the limitation of the cause of action has no power to render the respondent liable for the alleged claim. The respondent has acquired by reason of limitation immunity from any liability.'
(9) The Supreme Court observed that if an amendment merely allows the plaintiff to start a new cause of action or to ask a new relief or to include a new ground of relief, all that happens is that it is possible for the plaintiff to raise further contentions in the suit but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question touching the merits of the controversy between the parties. Where, on the other hand, an amendment 'takes away from the defendant, the defense of immunity from any liability by reason of limitation, it is a judgment under Letters Patent. The reason is that 'it is a decision affecting the merits of the question between the parties by determining the right or liabililty based on limitation. It is a final decision as far as the trial court is concerned.' Ray, C.J. also observed:
'IN finding out whether the order is a judgment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liabililty is to be found out by the Court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability.'
(10) We next come to Shah Babulal Khimji's case where, apart from other orders, orders passed under Order 6 Rule 17 were also referred to while deciding about right of appeal under Letters Patent. There the Supreme Court referred the case i.e. Shanti Kumar R. Cangi's case : [1975]1SCR550 referred to above. The Supreme Court classified orders into final orders, preliminary judgment and intermediary/interlocutory judgment. So far as amendment of pleadings are concerned, the following observations are significant. The Court stated (para 116) that where the trial Judge allowed the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant was taken away and rendered nugatory. The order, though it was discretionary and interlocutory, caused serious injustice to the defendant who was deprived of a valuable right of defense to the suit. Such an order, thereforee, though interlocutory in nature, contained the attributes and characteristics of finality and must be treated as judgment. The Court also held (para 117) that where the plaint was amended by awarding a relief or taking an additional ground which might be inconsistent with the pleas taken by him but was not barred by limitation and did not work injustice to the defendant who would have ample opportunity to disapprove the amended pleas taken by the plaintiff at the trial, the order would only be a simple interlocutory order without containing any finality and would thereforee be a judgment. The Court then slightly widened the scope of the word 'judgment' than what was said in Shanti Kumar R. Canji's case : [1975]1SCR550 observing: 'An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant' would be a 'judgment'. The words 'other valuable right' are thereforee significant.
(11) In other words, if it is an order allowing amendment of plaint introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant, it will be a `judgment' for purposes of Clause 10 of Letters Patent (Lahore) or Section 10 of the Delhi High Court Act.
(12) We then come to the third judgment of the Supreme Court dealing with Letters Patent and Order 6 Rule 17 Civil Procedure Code in Jugal Kishore Paliwal vs . S. Satjit Singh, : (1984)1SCC358 . As already stated, the Full Bench judgment of Delhi High Court in University of Delhi vs . Hafiz Mohd. Said : AIR1972Delhi102 was overruled in that case following the principles laid down in Shah Babulal Khimji. There the amendment of written statement was sought at the time of framing of issues and was allowed by the learned Single Judge. The Division Bench dismissed the appeal as not maintainable. The Supreme Court held appeal was maintainable observing that the particular amendment was one which vitally affected rights of parties and would cause some injustice to the plaintiff. It was thereforee not a purely interlocutory order. It is not clear from the judgment as to what particular plea was sought to be pleaded in the written statement by way of amendment. But, as the matter has gone to the Supreme Court from the Delhi High Court, we have called for the record of the case in Fao (OS) 35/82 and the following facts appear from that file. The suit was filed on the original side of the High Court of Delhi by the plaintiff in 1981 for specific performance of an agreement of sale of property at Delhi dated 30.4.81. Defendants agreed that plaintiff came to Rajasthan offering to purchase but the matter was under negotiation. The amendment of the written statement was sought in 1982 for raising a plea that it was not the plaintiff who came to purchase but another person and defendants wanted to refer to a tape-recorded conversation of the persons. Plaintiff opposed the amendment contending that defendants cannot be allowed to go back on a valuable admission. The learned Single Judge allowed the amendment on 19.3.82. The Letters Patent Appeal was dismissed on 1.4.82 following the earlier Full Bench. The Supreme Court allowed the plaintiff's appeal and held that the Lpa was maintainable.
(13) It may be seen that the above three decisions of the Supreme Court cover different situations arising under Order 6 Rule 17. In Shanti Kumar L. Cangi's case an order allowing amendment of plaint was held to be a 'judgment' while in Jugal Kishore's case, an order allowing amendment of the written statement was treated as a 'judgment'. Again in Shah Babulal's case, the Court explained that the order would be a 'judgment' if it introduced a new cause of action or altered the nature of suit and took away a vested right of limitation or any other valuable right accrued to the defendants.
(14) It is, thereforee, clear that it does not matter whether the appeal relates to a case of amendment of plaint or of written statement, provided the tests laid down by Supreme Court are satisfied. We are here not to be understood as generalising that Letters Patent Appeals lie against all orders allowing or disallowing amendments of pleadings under Order 6 Rule 17 CPC. Whenever a question of maintainability of appeal arises, it will be for the Court to decide whether the particular order passed under Order 6 Rule 17 where the amendment is allowed or disallowed satisfies the tests laid down by the Supreme Court for an appeal to be maintained.
(15) The present case before us is similar to the facts in Jugal Kishore's case decided by the Supreme Court because a valuable right of the plaintiff to rely on the admission of the defendant in the original written statement was taken away. It will be seen that once the amendment is allowed, it necessarily permits a new case to be pleaded which affects a valuable right vested in the plaintiff to rely upon the admission in the written statement that the tenancy is a single tenancy for Rs. 6000.00 p.m. to which the Rent Control Act does not apply. The defendants are allowed to withdraw the admission. There is thereforee an implied decision that they can withdraw the said admission and plead eight separate tenancies. That was sufficient to make the order a 'judgment'. Further the plaintiffs right to evict the defendants through Civil Court after issuing a simple notice under Section 106 of Transfer of Property Act and without the need to plead/prove the limited rights of eviction available to a landlord under the Rent Control Act is put in jeopardy. Further, the complexion of the suit totally changed. The suit was one by a landlord against an ex-tenant and the nature of the suit has changed because of the amendment as a suit against persons claiming to be protected tenants under a current statutory tenancy. The plea of single tenancy in favor of either persons is not to be the basis. It is also to be noticed that, but for the amendment, the respondent could not have been able to lead evidence of eight separate tenancies. In our view, the case on hand clearly comes within the principles laid down in Shah Babulal's case as it permits introduction of a new case and affects valuable rights accrued to the plaintiff on date of suit to seek eviction of the respondents on the basis of their admission and through the Civil Court. We hold thereforee that the order is a 'judgment' and hence this appeal is maintainable under Clause 10 of Letters Patent (Lahore) and also under Section 10 of the Delhi High Court Act. Point 1 is decided accordingly. Point 2
(16) The point is whether the costs sent by the respondents` counsel were indeed 'accepted' by the appellants' lawyer's clerk and if so, whether the appellant was estopped from filing this appeal.
(17) This question turns upon the correspondence between the lawyers. The order on the is was passed by the learned Single Judge on 16th November,1993 awarding costs of Rs. 1500.00 . According to the appellants, as stated in their advocate's letter dated 24.11.93, the advocate for the respondents sent a copy of the amended written statement on 18.11.93 to the chambers of the appellants' advocate in the High Court Along with the costs of Rs. 1500.00 . The amount was received by the clerk of the appellants' counsel and he passed a receipt. After coming to know about it, the appellants' counsel wrote to the respondents' counsel on 25.11.1993 that his clerk had received the sum 'without any authority or instruction' from him. He further said that by that date he did not have instructions from his clients (plaintiffs) whether they wished to prefer an appeal or not. The counsel immediately asked his clerk to locate the respondents' counsel and return the amount since the appellants were considering filing of an appeal. Despite all efforts, the appellants 'lawyers' clerk could not locate the respondents' advocate on that day and that the earliest day later when respondents' counsel could be approached was 24.11.93 and he declined to take back the money. These facts are contained in the letter dated 25.11.93 sent by the appellants advocate to the respondents advocate, enclosing cheque for Rs. 1500.00 . The respondents' counsel then sent reply by way of phonogram dated 30.11.93 contending that there was no cheque enclosed with the appellants' counsel's letter dated 25.11.93 and even otherwise, he was not willing to receive the money. Appellants' lawyer then sent a reply dated 8.12.93 saying he was surprised at the stand taken by the respondents' lawyer etc. He sent a fresh cheque for Rs. 1500.00 with his letter dated 8.12.93. A reply was sent by the respondents lawyer on 15.12.93 sending back the cheque with some allegations against appellants' counsel. The two lawyers have filed affidavits in the Fao making allegations against each other. This is indeed rather very unfortunate.
(18) We do not want to go into the allegations by the appellants' lawyer against the respondents' lawyer and vice-versa. We are satisfied that there is no proof that the appellants' lawyer's clerk - when he received the costs sent by the respondents' counsel - had the consent or authority or instructions from the appellants to receive the money.
(19) We have to note further that in the first reply dated 15.12.93 by the respondents' counsel, it was not stated by him that he had himself approached the appellants' counsel on 18.11.93 with Rs. 1500.00 and that he was requested to bring the amended written statement. Even assuming the belated version of the respondents` counsel to be true, that does not mean the appellants' gave authority to their lawyer or to his clerk to receive the money.
(20) To cut the story short, we do not want to pursue the matter further except to say that there is no proof that the receipt issued by the appellants' lawyer's clerk for Rs. 1500.00 had the express authority of the appellants. This is also clear from the fact that the amount was returned by counsel by way of a cheque saying his clerk had no authority from his client to receive the same. There is, thereforee, no question of estoppel against the appellants. Point 2 is decided asccordingly. Point 3
(21) This point raises the question whether, on merits, this amendment should have been allowed? We have already set out, while dealing with point 1, the nature of the amendment proposed. It is not necessary to repeat those facts.
(22) In this context, the following decisions of the Supreme Court decided in regard to Order 6 Rule 17 Cpc, dealing with inconsistent pleas raised belatedly are to be noticed. In Gauri Shankar vs . Hindustan Trust Ltd. : AIR1972SC2091 the tenant-defendant did not set up any plea that the notice of eviction issued under Section 106 of the Transfer of Property Act was not valid. His application for amendment of written statement filed several years later, raised an issue that the notice issued under Section 106 of Transfer of Property Act was not valid. The Supreme Court held that the amendment ought not to have been allowed after lapse of several years. This was because, if it was raised earlier, the plaintiff could have withdrawn the suit with leave, issued fresh notice and filed a suit on that basis. In Jagan Nath vs . Chander Bhan : AIR1988SC1362 the suit for eviction was filed under the Rent Control Act against Jagan Nath, treating him as tenant. This was accepted in the written statement and it was contended that the defendants' sons were not imploded etc., and they were running Bindra Tent House in the premises. Later, the defendant raised a contention under Order 6 Rule 17 that the property was rented to Bindra Tent House and thereforee this eviction petition was not maintainable against him. The amendment was rejected. The Supreme Court while dismissing the appeal observed that the amendment was rightly rejected as the defendant could not wriggle out of an admission in the written statement and seek to take away a 'valuable right' accrued to the other side and cannot set up an 'altogether new case'.
(23) These two cases are directly in point on merits and are in favor of the appellants. It is, no doubt, the law that parties, including defendants, may take inconsistent or alternative pleas in their pleadings. If such inconsistent pleas are taken in the pleadings, it may be, they need not be struck off. But taking inconsistent pleas in the original pleadings is one thing and seeking leave to raise inconsistent pleas at a later stage by restarting to Order 6 Rule 17 is another. When such application under Order 6 Rule 17 raising inconsistent pleas comes up for consideration, the Court has to again bear well settled principles in regard to allowing amendment of pleadings. The Court may consider whether it would affect a plea of limitation, whether it would affect a valuable right, accrued to the opposite party, whether it would cause prejudice, whether it was belated and also whether it was a second or third occasion when such application was filed and whether it was a bonafide one or was bordering on malafides.
(24) In the present case, even by the time the written statement was initially filed in 1989, the Rent Control law stood amended in December,1988, taking buildings with rental income above Rs. 3500.00 p.m. out of the Act but even so plea of eight separate undivided tenancies each for Rs. 750.00 was not raised and in fact, it was admitted that it was a single tenancy given in 1986 to 8 persons under a single lease. It was also pleaded that two of the defendants surrendered their rights of tenancy to other co-tenants. That would mean that it was admitted that it was a single tenancy and the Rent Control Act did not apply. The present plea of 8 tenancies is thereforee clearly inconsistent. We are of the view that in such a situation, discretion has to be exercised according to well settled principles. If the amendment takes away a valuable right accrued to the appellant to rely on the admission of the defendants or it affects a right to evict the respondents through the Civil Court uninhibited by the limited grounds available under the Rent Control Act and is belated by four years, it is also not bonafide. It causes serious prejudice to the plaintiff and is obviously intended to delay the disposal of the suit. We are thereforee of the view that, having regard to well settled principles, the amendment ought not to have been allowed. We thereforee set aside the order allowing the amendment under this IA. Point 3 is decided accordingly.
(25) In the result, the appeal is allowed and the order of the learned Single Judge is set aside.