Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 959 (MAD)

G. Selvam, Chennai v. B. Rajalakshmi, Chennai

2007-03-16

R.BANUMATHI

body2007
Judgment :- Aggrieved by allowing of Petition ordering Amendment of Schedule of Property i.e. amending "First Floor" as "Ground Floor", Tenant has preferred this Revision. 2. It is a very unfortunate case where two RCOPs were filed and inadvertent mistake crept in numbers of the RCOPs and the corresponding Schedule of petitioned property and the Tenant is trying to take advantage of that mistake. The point falling for consideration is whether Rent Controller has no powers to allow Amendment after passing order of eviction. 3. 1. For better appreciation of contentious points, we may refer to brief facts: Respondent / Landlady filed RCOP.1082/98 in respect of Ground Floor portion and RCOP.1083/98 pertaining to First Floor portion located at No.349, T.H.Road, Chennai against the Revision Petitioner on the ground of Wilful Default. As the Tenant failed to pay rental dues even after filing of Eviction Petitions, Landlady has filed Petitions under Sections 11(3) and 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act (in short "the Act") in both RCOPs. M.P.No.766/99 filed in RCOP.1083/98 was allowed since the conditional order was not complied with. M.P.No.566/2000 filed in RCOP.1082/98 was dismissed. Against the order passed in M.P.No.766/99 in RCOP.1083/98, Tenant has preferred Appeal in RCA.156/2000. Against the order passed in M.P.No.566/2000 in RCOP.1082/98, Landlady has preferred Appeal in RCA.294/01. In the meantime, Tenant has surrendered possession of First Floor portion and Landlady has made an endorsement of taking possession of the said First Floor portion and consequently, RCOP.1083/98 was dismissed. 3. 2. The Appeal in RCA.294/01 was contested and the same was allowed. Aggrieved by the same, Tenant has filed CRP.1269/02 and the said Revision was dismissed on 30.06.2005. Consequently eviction was ordered in RCOP.1082/98. When Landlady has obtained Certified Copy in RCOP.1082/98, she came to know that eviction order was passed in respect of First Floor, which was already vacated and the Eviction Petition in respect of Ground Floor portion has been wrongly assigned the number RCOP.1083/98 and whereas First Floor has been assigned the number RCOP.1082/98. Stating that only regarding Ground Floor portion, the matter was agitated upto the High Court, Landlady has filed Petition seeking Amendment of Schedule of property in RCOP.1082/98. Tenant has resisted that Petition contending that after disposal of RCOP.1082/98 on 110. Stating that only regarding Ground Floor portion, the matter was agitated upto the High Court, Landlady has filed Petition seeking Amendment of Schedule of property in RCOP.1082/98. Tenant has resisted that Petition contending that after disposal of RCOP.1082/98 on 110. 2005, Rent Controller has no power to amend the description of the property in the Schedule and the remedy of the Landlady is only to file a fresh RCOP on account of dismissal of RCOP.1083/98. 3. 3. Pointing out the mistake occurred in the description of property and in the numbering of Petitions and also observing that it is only a trivial mistake, Rent Controller allowed the Amendment Petition. Landlady was under the bonafide mistaken impression that RCOP.1082/98 has been filed for Ground Floor portion. Referring to the decision in 1996 (I) M.L.J. 350 , the Appellate Authority confirmed the order of Rent Controller allowing Amendment Petition. 4. Challenging the order of the Authorities, learned counsel for Revision Petitioner has submitted that after disposal of RCOP, Rent Controller has become functus officio and has no power to order Amendment. Learned counsel made elaborate submissions contending that mistake in description of property is not an inadvertent mistake, but the Amendment introduces a new Statement of fact and after disposal of RCOP, the Court cannot allow such an Amendment introducing a new Statement of fact and by doing so Tenant would be subjected to great hardship. 5. Learned counsel for Landlady has submitted that the Tenant was quite aware that he is fighting out only for Ground Floor and very well knew that RCOP.1082/98 related only to Ground Floor. Placing reliance upon the decisions in A.I.R. 1951 MADRAS 766 and 1998 (I) L.W. 512 , learned counsel urged that Court has inherent power to order Amendment and the concurrent findings of Courts below cannot be interfered with. 6. Since elaborate arguments were advanced on the mistake crept in, RCOP Register, Numbering Register and Records from Lower Court were called for. I have carefully examined the records and considered the submissions. .7. Admittedly, pending Appeals preferred against the order in the Petitions filed under Sec.11(4) of the Act, Tenant has vacated First Floor. Without verifying the description of Schedule of Property, under the bonafide impression that RCOP.1083/98 relates to First Floor, Landlady has allowed RCOP.1083/98 for dismissal after making necessary endorsements of taking over possession. 8. .7. Admittedly, pending Appeals preferred against the order in the Petitions filed under Sec.11(4) of the Act, Tenant has vacated First Floor. Without verifying the description of Schedule of Property, under the bonafide impression that RCOP.1083/98 relates to First Floor, Landlady has allowed RCOP.1083/98 for dismissal after making necessary endorsements of taking over possession. 8. There is no dispute that Ground Floor was not vacated. Parties were hotly contesting RCOP.1082/98 and the Petitions thereon under the bonafide impression that RCOP.1082/98 relates to Ground Floor. As against dismissal of Petition filed under Sec.11(4) of the Act in RCOP.1082/98, Landlady has preferred RCA.294/01, which was allowed by the Appellate Court. As against that order in RCA.294/01, Tenant has preferred CRP.1269/02. In CRP.1269/02 filed by the Tenant, the Schedule of Property is described only as "Shop Portion in the Ground Floor". At the time when CRP.1269/02 was heard, arguments were advanced only in respect of Ground Floor portion, which has been shown as Schedule of Property in Memorandum of Grounds of Revision. That apart, having surrendered First Floor portion, the other rented premises in occupation of the Tenant was the Ground Floor. Parties have fought out litigation in RCOP.1082/98 under the bonafide impression that it relates to Ground Floor Portion. 9. Yet another aspect would show that Tenant has fought out the litigation for Ground Floor and was quite aware of the same. Tenant has filed another RCOP.1306/02 for depositing arrears of rent into Court in respect of Ground Floor portion. Referring to copy of the Affidavit filed in RCOP.1306/02, Appellate Authority has observed that the averments in the Affidavit would show that Tenant was under the impression that RCOP.1082/98 was filed only in respect of Ground Floor portion and on that premise, RCOP.1306/02 was filed for depositing the rental arrears. Subsequent filing of RCOP.1306/02 filed relating to Ground Floor portion would clearly show that the Tenant was quite aware that RCOP.1082/98 relates to Ground Floor portion. .10. On behalf of Tenant, learned counsel Mr.P.K.Sivasubramaniam has made forcible submissions contending that Rent Controller has become functus officio and the Rent Controller has no power to entertain Petition for Amendment of Schedule of Property and the proposed Amendment is intended to set up a new case, which would cause serious prejudice to the Tenant. As discussed earlier, parties contesting RCOP.1082/98 being aware that they are contesting only for Ground Floor. As discussed earlier, parties contesting RCOP.1082/98 being aware that they are contesting only for Ground Floor. When Tenant had faced the order of eviction in respect of Ground Floor, it is not open to the Tenant to raise objection to the Amendment. The Tenant cannot take advantage of the inadvertent mistake crept in. 11. Under Sec.18 of the Act, the Rent Controller shall have all the powers of the Civil Court in execution of the orders passed under the Act. After passing the order of Eviction, Rent Controller has all the powers of the Civil Court in execution of the orders passed under the Act. While having the powers of Civil Court, Rent Controller has the inherent power. 12. Holding that a quasi-judicial Tribunal like the Rent Controller or the Appellate Tribunal has an inherent power to set right mistakes made by inadvertence so long as the amendment does not amount to a review of the adjudication already made, in the decision In Re ..Vs.. S.N.Komarasawami Goundan (A.I.R. (38) 1951 Madras 766), this Court has held as under:- "...It was contended by the learned counsel on behalf of the petitioner that the application was made under S.151 C.P.C which did not apply and also that the landlord should have approached the Rent Controller and not the appellate tribunal for an amendment, even assuming that he was entitled to that relief. We see no substance in either of these contentions. It may be that S.151 C.P.C by itself does not apply to proceedings under the Madras Rent Control Act XV of 1946. But we are of opinion that a quasi-judicial tribunal like the Rent Controller or the appellate Tribunal has an inherent power to set right mistakes made by inadvertence so long as the amendment does not amount to a review of the adjudication already made. In this case it is not denied that both the landlord and the tenant knew to which property the proceedings related. In fact, when the Rent Controller passed an order of eviction against the Petitioner, he filed an Appeal to the Appellate Tribunal, presumably on the assumption that the proceedings related tot he house which he was occupying. It does not lie in his mouth to oppose the present Application for amendment....." The above decision squarely applies to the present case. 13. A similar factual situation arose in the decision reported in A.Shamsuddin ..Vs.. It does not lie in his mouth to oppose the present Application for amendment....." The above decision squarely applies to the present case. 13. A similar factual situation arose in the decision reported in A.Shamsuddin ..Vs.. K.Chellappan ( 1998 (1) L.W. 512 ). Consequent on Amins report that he could not identify the property, Landlady filed Application giving a better description of the property. The same was objected by the Tenant on the ground that Rent Controller had no jurisdiction to correct or amend the Schedule and the power is within the four corners of the Statue, which does not permit any Amendment. Referring to the above said decision in A.I.R. (38) 1951 Madras 766, S.S.Subramani, J., has held as under:- "...The decision in 1971 II M.L.J. 379 = 84 L.W. 521 was taken into consideration by Rengasamy, J., in 1995 (II)C.T.C. 281 (B.C.S. Enterprises ..Vs.. Ashok Kumar Lunia). The learned Judge has not followed it. Learned Judge has rightly taken the views of the Honble Supreme Court as well as other decisions of this Court to come to the conclusion that the Rent Control Court has got the power to allow amendment applications. That decision was followed by Raju,J. In the decision reported in the same Volume at Page 577. I have also held in 1996-I-M.L.J. 350 that Tribunals which are given certain powers to adjudicate upon the rights of parties also will have incidental power to allow amendment Applications. The decision of the Supreme Court regarding the power of the Tribunals was not considered by the learned Judge, and I do not think that that decision holds good as on this date. That apart, even if Order 6 Rule 17 C.P.C itself may not apply, it does not prohibit the Rent Controller from following the principle enunciated therein as held by Abdul Hadi, J. in 1996 I M.L.J. 364. Merely because the Authority is created by the Statute, it does not follow that the Authority is prohibited from taking guidance from the procedure adopted by Courts...." 14. In 1978-I-M.L.J-10 = (1977)90 L.W. 711 (Usman Koya ..Vs.. Muthukrishnan), a learned Judge of this Court has held that the Rent Controller, being a quasi-judicial authority, has power to rectify a mistake and pass orders, in the interest of justice. .15. In 1981-II-M.L.J.-354 = 94 L.W. 745 (Gunaraju Naidu ..Vs.. In 1978-I-M.L.J-10 = (1977)90 L.W. 711 (Usman Koya ..Vs.. Muthukrishnan), a learned Judge of this Court has held that the Rent Controller, being a quasi-judicial authority, has power to rectify a mistake and pass orders, in the interest of justice. .15. In 1981-II-M.L.J.-354 = 94 L.W. 745 (Gunaraju Naidu ..Vs.. Bavani Bai), S. Ratnavel Pandian, J., as he then was, in paragraph 9 said thus:- ."...The Tribunal, in exercise of its inherent power, so long as the proceeding pending before it is alive, has to consider such a request and order the amendment to be carried out if it is warranted in the interests of justice....". .16. The order allowing Amendment of Schedule of Property would only set right the mistake and bringing the order of eviction / decreetal order in consequence with the subject matter over which the parties agitated knowing fully well that RCOP.1082/98 related to Ground Floor. Having fought out the litigation and facing an order of eviction, it is not open to the Tenant to contend that prejudice has been caused to him. There is no manifest error or injustice being done to the Tenant by allowing the Amendment Petition. The concurrent findings of the Authorities allowing Amendment of Schedule of Property does not suffer from any illegality or perversity, calling for interference. 17. For the foregoing reasons, the concurrent findings of the Courts below ordering Amendment of Schedule of Property in RCOP.1082/98 is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.1 of 2007 is closed. Three months time from the date of this order is granted to the Revision Petitioner / Tenant to vacate and hand over vacant possession to the Respondent / Landlady.