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2007 DIGILAW 1601 (PNJ)

Sudarshan Chhabra v. Paramjit Singh Gill

2007-09-05

VINOD K.SHARMA

body2007
Judgment Vinod K.Sharma, J. 1. C.M. No. 4216-CII of 2007 For the reasons stated in the application the order dated 21.2.2007 is recalled and the revision petition is restored to its original number. The application stands disposed of. C.R. No. 2419 of 2005 2. This revision petition has been filed against the order passed by the learned Rent Controller vide which application moved by the landlord- respondent for the amendment of the petition filed under Section 13 of the East Punjab Control of Rent and Eviction Act (for short the Act), has been ordered to be allowed. 3. The landlord-respondent had filed a petition for ejectment of the petitioner on the ground that he was inducted as a tenant in two rooms. After the parties had led evidence and the case was fixed for final arguments the respondent-landlord moved an application for the amendment of the petition on the plea that when he was away to Canada the respondent forcibly occupied other two rooms which were in fact in possession of the landlord and articles belonging to the landlord were also taken away by the respondent. It was further the case set up by the landlord that an FIR qua this incident was also registered against the respondent. It was on this ground that the application under Order 6 Rule 17 of the Code of Civil Procedure was filed to avoid the rejection of the petition on the ground of partial ejectment. It was also claimed that it would not cause any prejudice to the tenant. 4. The application was opposed on the ground that this was mala fide attempt on the part of the landlord to further harass the petitioner as the application was filed at a belated stage. It was also claimed that the parties have led evidence and attempt is being made to fill up the lacunae in the case left by the landlord and thus it was claimed that the amendment sought would seriously prejudice the rights of the petitioner-tenant. 5. Learned trial court rightly rejected the plea of the petitioner, that no amendment could be allowed after the commencement of the trial in view of the fact that amendment of Order 6 Rule 17 of the Code was prospective in nature. 5. Learned trial court rightly rejected the plea of the petitioner, that no amendment could be allowed after the commencement of the trial in view of the fact that amendment of Order 6 Rule 17 of the Code was prospective in nature. However, plea of the petitioner that the application was mala fide and was moved at belated stage was wrongly rejected by observing that there could no straightjacket formula for allowing or disallowing the amendment. It was observed by the learned trial Court that the case set up by the landlord was that two rooms at the time of filing of the petition were not included. It was observed that the court has to see whether the amendment really serves the ultimate cause of justice and avoids the further litigation. Thus, it was held that the application being necessary for the just decision of the case the same was ordered to be allowed. It was also observed that the relief could not be refused because of some mistake, negligence or even wrong interpretation of rules and procedure. 6. Learned counsel for the petitioner has challenged the said amendment primarily on the plea that even in the application for amendment the landlord has not taken a plea that the petitioner was inducted as a tenant in four rooms and it was due to inadvertence that two rooms were left. The case set up by the landlord was that petitioner was in fact tenant in two rooms and other two rooms have been forcibly occupied, without the consent of the landlord qua which an FIR has also been registered. In this view of the matter it was the question of jurisdiction to entertain the plea and not mere decision on merit of the case. In case the plea of the petitioner-landlord was to be accepted in that event also the learned Rent Controller would have no jurisdiction to entertain and try the petition qua two rooms now sought to be included in the rent petition. The position would have been different if the case set up was that on account of negligence or due to inadvertence the part of tenanted premises could not be included. The learned trial Court was, therefore, not justified in coming to the conclusion that the amendment sought was required for just and proper adjudication of the case and to do the justice to the parties. 7. The learned trial Court was, therefore, not justified in coming to the conclusion that the amendment sought was required for just and proper adjudication of the case and to do the justice to the parties. 7. Learned counsel for the respondent by placing reliance on the judgment of Honble Supreme Court in the case of Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006(2) RCR(Civil) 577 : 2006(1) PLJ 556 contended that the court should not record finding on the merits of the amendment as the same are not to be adjudged at the stage of allowing prayer for amendment. This contention of the learned counsel for the petitioner that the court should take notice of subsequent events in order to shorten the litigation and to preserve and safeguard the rights of both parties and to subserve the ends of justice. The contention of the learned counsel for the respondent, therefore, was that the present amendment having been allowed in the interest of justice, there is no ground to interfere with the said order. The learned counsel for the respondent-landlord thereafter placed reliance on the judgment of Honble Supreme Court in Pankaja and another v. Yellappa (D) by LRs. and others, 2004(3) RCR(Civil) 723 (SC) to contend that if the amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. It was further contended that there can be no straightjacket formula for allowing or disallowing an amendment. As a matter of fact, this judgment was relied upon by the learned trial Court for allowing the amendment of the petition. However, the reading of the judgment shows that even in this case Honble Supreme Court was pleased to observe that a clear cut time barred claim should not be allowed to be included by way of amendment. It is only in case there is a debatable question involved, the amendment can be allowed. However, the reading of the judgment shows that even in this case Honble Supreme Court was pleased to observe that a clear cut time barred claim should not be allowed to be included by way of amendment. It is only in case there is a debatable question involved, the amendment can be allowed. This judgment could not be applied in the present case as it could not be disputed that even if the case set up by the landlord is accepted in that event also the court would have no jurisdiction to entertain and try the present petition qua the two rooms sought to be included by way of amendment as the learned Rent Controller would have no jurisdiction with regard to the premises possession of which is alleged to have been taken forcibly by the tenant and the tenancy is not accepted. Learned counsel for the respondent also placed reliance on the judgment of Honble Supreme Court in the case of Kalpakamani v. Shajathan, 2006(1) RCR(Civil) 316 (Kerala) to contend that the jurisdiction exercised by the learned trial Court is not open to challenge in revision under Article 227 of the Constitution as even error of facts or error of law cannot be the subject matter of correction under Article 227 of the Constitution. The Court under Article 227 of the Constitution exercises jurisdiction of superintendence which is primarily to correct the jurisdictional error. The respondent also placed reliance on the judgment of the Honble Supreme Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others, 2007(2) RCR(Civil) 830 : 2007(1) RCR(Rent) 457 : 2007(2) R.A.J. 502 which is also to the same effect. 8. The judgment relied upon by the learned counsel for the respondent cannot be applied to the present case as by way of amendment the landlord in the present case has sought to include two additional rooms without admitting the factum of tenancy of the said two rooms. In the application moved for the amendment stand of the landlord was that the possession of two rooms was unauthorisedly taken during the absence of the landlord. In the application moved for the amendment stand of the landlord was that the possession of two rooms was unauthorisedly taken during the absence of the landlord. In that situation, prima facie the tenant would be deemed to be a trespasser and the possession in that situation can only be obtained from the civil court by filing a suit for possession as the learned Rent Controller would have no jurisdiction to entertain and try the amended petition. 9. Consequently, this revision petition is allowed. The impugned order is set aside. The application moved by the petitioner landlord is dismissed. Petition allowed.