Asher & Co. v. Hassankutty Hajee — 1998 DIGILAW 134 (KER)

Judgment :- A.R. Lakshmanan, J. By consent of both parties, the main revision itself was taken up for final hearing. 2. The petitioners are the tenants, who are respondents 1 and 2 in the eviction petition filed by the respondent herein under S.11(2) and 11(3) of the Kerala Buildings (Lease & Rent Control) Act. The respondent tiled the petition for eviction contending that the building described therein was given to the tenant for conducting business and that the rent was kept in arrears since 1.5.1992. The landlord also claimed bona fide need of the premises for his son, to use the building as office-cum-residence. 3. The petitioners herein filed a counter statement contending that the entrustment of the building was in 1943-44 and also denied the bona fide need put forward by the landlord. In the counter statement the petitioners have stated in para 2 as follows: "2, It is admitted that the Glass on House bearing No. 8/381 with the shed and store room were taken on rent not by the firm but by the 2nd respondent. It was taken on lease from the then owners of the premises viz. Barbosa Brothers, in 1943-44. The premises were taken not for conducting business, but for residence." During the pendency of the proceedings before the Rent Controller, the petitioners tiled LA. 843 of 1995 seeking permission to amend their counter statement by incorporating the pleas clarifying the pleas that were already set forth in their counter statement. The petitioners sought to add the following two paragraphs before para 9 of their counter statement filed in R.C.P. No. 213 of 1992: "The respondents submit that they have with the specific consent, knowledge and approval have constructed an overhead tank after procuring an application for grant of permission in that regard from the then landlord Hajee K. Avarankutty. Pursuant to the permission obtained from the Calicut Corporation an overhead tank was constructed by the respondents expending their own amount. Similarly, a septic tank and latrine were constructed in the premises in 1969 again by the respondents after procuring signature ofthe then owner Sri. Avarankutty Hajeeas early as on 23.4.1970. It is submitted that the septic tank and latrine were constructed by the respondent expanding their own money and that too after permission. They have expended over Rs. Similarly, a septic tank and latrine were constructed in the premises in 1969 again by the respondents after procuring signature ofthe then owner Sri. Avarankutty Hajeeas early as on 23.4.1970. It is submitted that the septic tank and latrine were constructed by the respondent expanding their own money and that too after permission. They have expended over Rs. 15,000/- for this construction and are entitled to payment of value of improvements under the Compensation for Tenants' Improvement^ Act for which reason as well the above application for eviction is non-maintainable. It is also necessary to point out that the second respondent was granted a lease of the compound of the building as early as on January 1944 by virtue of an oral demise. Since what was granted was a demise by the then jenmi the 1st respondent is having fixity of tenure. The provisions of Rent Control Act will also apply because he is a permanent tenant of the property. The fact of demise is confirmed in writing. The copy of the order in French and Malayalam is produced. In the circumstances and because there was a demise of the land together with building the above RCP is non maintainable practically because of the constitution of improvements" 4. The said petition was resisted by the respondent herein stating that if the petitioner was allowed, it will change the entire cause of action and that the landlord will be put to great hardship. It was also contended that the application filed to amend the counter affidavit was not only belated, but also raised inconsistent pleas. By way of amendment, the tenant cannot be allowed to introduce a new case and displace the landlord completely from the admission made in the counter affidavit. 5. The Rent Controller dismissed the petition following the ruling of the Supreme Court reported in M/s. Modi Spinning & Weaving Mills Co. Ltd. v. M/s. Ladha Ram & Co. (AIR 1977 SC 680) by which the Supreme Court held that such an amendment cannot be granted and if such an amendment is allowed, the landlord will be irreperably prejudiced by denying the opportunity of extracting the admission by the tenant. Ltd. v. M/s. Ladha Ram & Co. (AIR 1977 SC 680) by which the Supreme Court held that such an amendment cannot be granted and if such an amendment is allowed, the landlord will be irreperably prejudiced by denying the opportunity of extracting the admission by the tenant. Against the order of the Rent Controller dated 19.12.1996, the tenant preferred appeal, RCA No. 13 of 1997, which was also dismissed by the Appellate Authority on the ground that an appeal will not lie against the order passed by the Rent Controller in the amendment petition. The Appellate Authority also held that the impugned order passed by the Rent Controller does not affect the rights or liabilities of the parties and hence the same cannot be challenged by filing an appeal at this stage. On merits the appellate authority held that the tenants cannot be allowed to change their case by filing an application for amendment of the counter affidavit and that the tenant cannot, at a later stage, turn round and say that in addition to the building entrusted to them, the compound in which the building is situated was orally leased to them and they have got fixity of tenure. The Court also held that the plea which has been raised in the amendment application is destructive of the earlier plea taken in the counter and that the party cannot be permitted to blow hot and cold at the same time. Accordingly, the Appellate Authority confirmed the order of the Rent Controller and dismissed the appeal on the ground of maintainability and also on merits. Aggrieved by the said order, the tenant has come up with this revision. 6. We have heard Mrs. Prabha R. Menon appearing on behalf of the petitioner" and Mr. M.C. Sen for the respondent. Learned counsel for the tenant contended that the order of the courts below in refusing permission to amend the counter statement is contrary to law and is unsustainable. According to the learned counsel, the authorities below ought to have allowed the amendment sought for in order to avoid multiple litigation. She would further contend that the view of the Appellate Authority of the original plea of the revision petitioner and hence the amendment could not be allowed is contrary to law. According to the learned counsel, the authorities below ought to have allowed the amendment sought for in order to avoid multiple litigation. She would further contend that the view of the Appellate Authority of the original plea of the revision petitioner and hence the amendment could not be allowed is contrary to law. Winding up her argument, the learned counsel submitted that both the amendments sought by the petitioners are necessary for complete adjudication of the disputes between the parties and therefore, the laches on the part of the petitioners in filing the amendment petition cannot be put against them, Citing the decision reported in Raj Kishore v. Ram Pratap (AIR 1967 SC 799) learned counsel for the petitioner contended that even an interlocutory order passed by the Rent Controller is an order passed under the Act and is subject to appeal, provided it affects some rights or 1 {abilities of any of the parties. The Supreme Court held that the order of the Rent Controller refusing to set aside an ex parte order is subject to appeal to the Rent Control Tribunal. 7. Per contra, learned counsel for the landlord, while opposing the maintainability of the application on merits, invited our attention to a decision of this Court reported in Dr. P.V. Thomas v. M.V. Rajan 1984 KLT 147 wherein the learned single judge held that the Rent Control Court is not expected to go into the question of value of improvements since it is not a matter lulling within the jurisdiction of the Rent Control Court. Therefore, it is held that the tenant coming under the Kerala (Buildings Lease & Rent Control) Act is not entitled to claim benefits under S.4 of the Compensation for the Tenants' Improvements Act. Therefore, it is held that the tenant coming under the Kerala (Buildings Lease & Rent Control) Act is not entitled to claim benefits under S.4 of the Compensation for the Tenants' Improvements Act. He has also cited another decision of this court reported in Sivarama Menon v. Raghavan (1972 KLT 188) wherein this Court held that the Rent Control Court is not expected to go into the question of value of improvements since it is not a matter falling within the jurisdiction of the Rent Control Court and that the Act is a complete code on the rights and the liabilities of the landlord and tenant in respect of matters falling within the purview of the landlord and tenant in respect of the building and it is not permissible for a landlord or tenant in cases governed by the Act to fall upon the provisions of the Transfer of Property Act or the contract of tenancy or other extraneous circumstances. 8. In this case, the tenant has claimed in LA. No. 843 of 1995 the value of improvements made by him for the construction of an overhead tank and also a septic tank, which, according to the tenants, was constructed expending their own amount and pursuant to the permission obtained from the Calicut Corporation and with the knowledge of the then landlord. As rightly pointed out by the learned counsel for the landlord, such a plea cannot be raised in a rent control proceedings. His contention is also supported by the two decisions relied on by him and referred to by us above. Therefore, we hold that such a plea cannot be raised in the Rent Control proceedings. 9. In so far as the second amendment prayed for by the tenant is concerned, the learned counsel for the landlord submitted that such an amendment cannot at all be allowed since it introduces entirely a new cause of action and change the character of the proceedings. It is also submitted that the present plea taken by the tenant that what was granted was a demise by the then Jenmi and that the tenant is having fixity of tenure and that the provisions of the Rent Control Act will not apply because he is a permanent tenant of the property. According to him, such a plea cannot be countenanced because it is destructive of the plea already taken by the tenant. According to him, such a plea cannot be countenanced because it is destructive of the plea already taken by the tenant. In support of the said contention, the learned counsel for the respondent relied on the decision reported in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co. (AIR 1977 SC 680) wherein the Supreme Court held that pleas seeking to displace the plaintiff completely from the admission made by the defendant in the written statement cannot at all be allowed and that if such amendments are allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The decision reported in Haji Mohammed Ishaq S.K. Mohammed & Ors. v. Mohammed Iqbal & Mohamed AH & Co. (AIR 1978 SC 798) was also cited by the learned counsel for the respondent wherein the apex court held that an entirely new plea which was never taken in the original pleadings cannot be permitted to be introduced by way of an amendment and if such an amendment is allowed, that would completely change the nature of the original defence. Jagan Nath v. Chander Bhan (AIR 1988 SC 1362) was also cited by the learned counsel for the respondent. In that case, during the pendency of the appeal, the tenant preferred an application under O. VI R.17 of the Code of Civil Procedure seeking permission to amend his written statement. The appellant contended that the landlord filed eviction petition in respect of the premises 'in question against the appellant and his two sons which was assigned to Sri. A.P. Choudhary, Additional Rent Controller. Another objection raised was that the property was taken on rent by M/s. Bindra Tent House and, therefore, the petition for eviction was not maintainable. The application had been contested in which it had been admitted that the earlier petition for eviction was filed but according to the respondent it was not properly instituted and the same was withdrawn. It was denied that the application was not maintainable. The Tribunal, on an analysis of the matter, came to the conclusion that belated amendment could not be permitted. It was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question, and held that the tenant could not subsequently be allowed to wriggle out of this situation and withdraw the admission. It was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question, and held that the tenant could not subsequently be allowed to wriggle out of this situation and withdraw the admission. It was held further that if the amendment was allowed, that would take away valuable right of the other side and altogether a new plea would be taken, which could not be permitted. Relying on the decision in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co. (AIR 1977 SC 680) where the proposed amendment introduced an entirely new case seeking to displace the other side completely from the admission made, it was held that such an amendment could not be allowed. In decision reported in Beeralal v. Kalyan Mai ((1998) 1 SCC 278) the Supreme Court held as follows: "Once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice." 10. The above decisions are the authorities for the proposition that the proposed second amendment, which introduces an entirely new case seeking to displace the other side completely from the admission made by the tenant in the counter statement, cannot at all be countenanced. We are in agreement with the submission made by the learned counsel for the respondent herein, since we are of the opinion that both the Rent Controller and the Appellate Authority were right in refusing the amendment on the basis of the aforesaid principles. For the foregoing reasons we hold that there are no merits in the revision petition. The revision, therefore, fails and is hereby dismissed. If the petitioners are entitled to any relief based on their present claim, it will always be open to them to initiate necessary and appropriate proceedings before the appropriate forum. The said liberty is reserved to the petitioners in this order.