Hakeem Laxmaiah vs Smt. Kantha Devi

Honourable Mr. Justice Seetharam Reddy

Tenant is the petitioner herein. The respondent land lady filed R.C. No. 170 of 1975 before the Rent Controller for eviction of her tenant on the ground that the tenant committed wilful default in payment of the arrears of rent during the period from 1-4-1974 to 30-4-1976. The tenant denied these allegations. Just before the commencement of the trial, the land lady filed a petition in I.A. No. 711 of 1975 under order 6 Rule 17 read with section 151 of the CPC for the amendment of the eviction petition by adding an allegation that the tenant committed wilful default in paying the arrears of rent during the subsequent period from May to July, 1975. The Rent Controller rejected the amendment petition, against which R.A. No. 48 of 1976 was preferred and it was allowed by the Chief Judge, City Small Causes Court. Hence this revision. Sri Prakasa Rao the learned counsel for the Petitioner raised two contentions. (1) the appellate Court while reversing the order of the Rent controller erroneously exercised the jurisdiction which did not vest in it as much as no appeal lies from the order passed on an interlocutory application. Secondly the petition for amendment, if allowed, alters the very nature of the case which raises fresh cause of action. The landlady can as well file a separate petition for eviction on the ground which is sought to be raised by the interlocutory application for amendment and therefore no prejudice will be caused.

In support of the first contention, the learned counsel for the petitioner relied on the decision in Ma Shwe Mya vs. Maung Mo Hnaung 1922 PC 249 wherein he has been observed as under:

All rules of courts are nothing but provisions intended to secure proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none-the-less no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit.

He also relied on a Division Bench decision in Chagnalal (Died) Sardarilal vs. N. Pershad 1972 (1) APLJ 348. In this case the facts in brief are the landlord had filed a petition u/s 10 (2) (i) and 10 (2) (ii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act for the eviction of the tenant on the ground of wilful default in payment of rent and also on the ground that he had made unauthorised construction in the building. The tenant contended that he did not make any unauthorised constructions. During the enquiry, the landlord had filed a petition u/s 11 of the Act for directing the respondent tenant to deposit the arrears of rent. The rent controller, as the landlord had filed a sale deed in his favour as also a rental deed alleged to have been executed by the respondent, held that prima facie there was the relationship of landlord and tenant and further holding that there was no harm in directing the respondent to deposit the arrears of rent into court and also ordered that arrears of rent be deposited within 15 days from that order. Against that order the respondent filed an appeal before the Chief Judge, City Small Causes Court and the appellate court held that the Rent controller had without making further enquiry had ordered the appellant to deposit the arrears, that this type of order amounted to shirking the responsibility to enquire into and give a finding as to the points at issue and as no such enquiry was held, the appellate court remanded the case for taking evidence and disposing of the sane according to law. Against said appellate order, revision was preferred. In the revision, the contention was that the order of the Rent controller was not appealable and the appellate court ought not have entertained the appeal.

During the course of the proceedings before the rent controller while P.W. 1 was examined, the petitioner wanted to file two rental documents to prove the tenancy and that was opposed on the ground that the documents are not registered and therefore are not admissible. The court herd that they were executed only by one party, namely, the tenant that they would not amount to agreements and as such they are admissible without registration. On appeal to the Chief Judge, the order of the Rent Controller was set aside holding that those deeds are not admissible in evidence, as they were not registered. As against that the revision petition was preferred. In those circumstances, it was contended that the order of the Rent Controller directing the admission of the document is not appelable and as such the appellate authority cannot entertain the appeal.

Section 20 of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act may usefully be extracted here:--

20 (1) Any person aggrieved by an order passed by the Controller may, within thirty days from the date of such order prefer an appeal in writing to the Chief Judge, Small Causes Court in the cities of Hyderabad and Secunderabad and elsewhere to the subordinate judge, or if there are more than one subordinate judge, to the principal subordinate Judge having original jurisdiction over the area aforesaid. In computing the said period of thirty days, the time taken to obtain a certified copy of the order appealed against shall be excluded.

(2) On such appeal being preferred, the appellate authority may order stay of further proceedings in the matter pending decision in the appeal.

(3) The appellate authority shall send for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary after making such further inquiry as he thinks fit either personally or through the Controller shall decide the appeal.

Explanation;--The appellate authority may, while confirming the order of eviction passed by the controller, grant an extension of time to the tenant for putting the landlord in possession of the building.

(4) The decision of the appellate authority and subject to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any court of law, except as provided in section 22.

The Bench while relying on a decision in C.R.P. No. 619 of 58 arising out of Hyderabad Houses (Rent, Eviction and Lease) Control Act (Act XX of 1954) and relying on it construed section 25 (1) of the said Act, which is extracted here under.

(Notwithstanding anything contained in any law for the time being in force, an appeal from an order made by the controller shall lie within thirty days from the date of such order in the city of Hyderabad.

Quamar Hasan J. held as Under:

In my view, the interpretation put upon the section by the lower court is perfectly justified in view of the language of the section. If this contention is to be accepted, then every order which may be passed by the Rent controller would become appealable for instance orders for adjournments of cases, issuing of summonses to the witnesses etc.

Similar was the view expressed in Kanaya Pershad vs. Gajapathi Naidu ILR 1956 Hyd. 137 by the then Chief Justice of the High Court stating that an order must be a final order determining the rights of panics in order to be appealable, that an interlocutory order framing issues or shifting the burden of proof does not decide the rights of parties and hence is not appealable.

The division Bench while also relying on a decision in Central Bank of India Ltd. vs. Gokul Chand 1967 SCJ (2) 828 wherein the Supreme Court while considering the provisions u/s 38 (1) of the Delhi Rent Control Act, held.

The object of section 38 (1) is to give a right of appeal to party aggrieved by some order which affects his right or liability, in the the context of section 38 (1), the words "every order of the controller made under the Act", though very wide, do not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding the controller may pass any interlocutory orders under sections 36 and 37, such as order regarding the summoning of witneses, discovery, production and inspection of documents issue of a commission for examination of witnesses inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards, the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only and do not affect any right or liability of the parties. The legislature could not have intended that the parties would be harassed with endless expenses and delay by appeals from such procedural orders. It is open to any party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding. Subject to the aforesaid limitation, an appealed to the rent control. Tribunal from every order passed by the controller under the Act. Even an interlocutory order passed u/s 37 (2) is an order passed under the Act and is subject to appeal u/s 38 (1) provided it affects some right or liability of any party, Thus, an order of the Rent Controller refusing to set aside an exparte order is subject to appeal to the Rent Control Tribunal.

It was further held by the Division Bench that:

While the wording in Section 38 (1) of the Delhi Rent Control Act is that an appeal shall lie against every order of the Rent controllers, the wording of section 20 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act is not so specific. It only says "that any person aggrieved by the order passed by the Rent Controller". From the decision of the Supreme Court, which is binding on us, it follows that it is not every order of the Rent Controller that would become appealable, nor would it mean that only final orders passed by the Rent Controller are appealable and not interlocutory orders.

The Division Bench further held:

The test is whether it is an order affecting the rights or liabilities of the parties. Only such orders that affect the rights and liabilities of the parties would become appealable and not all interlocutory orders, which amount only to steps taken towards the final adjudication and for assisting the parties in the procedution of their cases in the pending proceedings, thus regulating the procedure and not affecting any right or liability.

The Division Bench eventually held that the order passed by the Rent Controller admitting the documents is not appealable.

The learned counsel for the petitioner also relied on a decision in Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, wherein it has been 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.

The view of the High Courts as Calcutta and Madras with regard to the meaning of ''Judgment'' are with respect of preferred to the meaning of ''Judgment'' given by the Rangoon and Nagpur High Courts. We are in agreement with the view expressed by the High Court at Calcutta in the M.B. Sirkar and Sons Vs. Powell and Co., as to when an order on an application for amendment can become a judgment within the meaning of Clause 15 of the letters patent. It an amendent merely allows the plaintiff to state 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 rise 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 which touches the merits of the controversy between the parties, where, on the other hand an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Clause 15 of the letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned.

Reliance was also placed by the learned counsel for the petitioner on the decision in Ashumati Debi vs. Rupendra Deb Rajkot AIR 1963 SC 198 wherein the Supreme Court held:

The question that requires determination in an application under Cl. 13 of the letters patent is whether a particular suit should be removed from any court which is subject to the superintendence of the High Court and tried and determined by the letter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case a single judge, of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a ''judgment''. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch. C.J.. In his observations quoted above, "An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under Cl. 13 of the letters patent, is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter, to be taken only from the stage at which they were left in the court in which the suit was originally filed.

The decision in Mahalingam vs. C. Natesa Aiyar AIR 1917 Mad 350 was cited for the proposition that an order refusing leave to amend the plaint is in the nature of an interlocutory order and is not appealable as a judgment. Whereas Sri Satyanarayana the learned counsel for the respondent submits that (sic) order passed by the Rent Controller u/s 19 is an appealable order, as this is a provision in the special enactment and any analogy with the provisions in the CPC is of no avail The test is, according to the learned counsel for the respondent, whether it is an order affecting the rights or liabilities of the parties and such orders that effect the rights and liabilities of the parties would become appeable, since the amendment affects the rights of the parties, it affortiori becomes in a appealable order.

Sri Satyanarayana, the learned counsel for the respondent argued firstly, that this point was not raised in the appellate court and secondly, it is certainly an appealable order. No authority has been cited in favour of this proposition. On a consequences of cases and in view of the bench judgment in Chagnnlal (died) Sardarilay vs. N. Pershad AIR 1970 Mad 230. I have no hesitation in holding that the order passed by the Rent Controller of the interlocutory application rejecting the amendment sought for, is not an appealable order, in as much as it does not affect the rights or liabilities of the parties at that stage; besides, the amendment sought for in this case merely allows the petitioner to state a new cause of action which is not a final decision on the issue on its merits. Such an amendment does nothing more than to regulate the procedure applicable to the petition. It does not decide any question which touched the merits of the controversy between the parties. In other words, amendment does not take away from the opposition party the dence of immunity from any liability which could be termed as a judgment as to make it a final order. It is open to the party to set forth the error or irregularity, if any, in such as order as a ground of objection in the appeal from the final order in the main proceedings. There is yet another aspect of this case. Section 105 (1) which is extracted here under. "105 (1) Save and as otherwise expressly provided, no appeal shall lie from any order made by a court in the exercise of its original or appellate jurisdiction, but, where a decree is appealed from, any error, defect or irregularity in any order, effecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal".

It is also an indication that no appeal shall lie from such an order as is passed in this case by the Rent Controller for there is no express provision in the Rent Control Act, other than section 20, which Seeks to confer explicit power pertaining to such matter against the impugned order in appeal. From the foregoing, in my judgment, it is manifest that the appellate court had no jurisdiction to entertain the appeal preferred by the respondent herein against the orders of the Rent Controller in interlocutory application No. 711 of 1975 Besides, the party can raise at any stage the objection with regard to jurisdiction, which is now well settled, hence the contentions of the counsel for the respondent are untenable.

In support of the second contention, the learned counsel argued that the proposed amendment was neither just nor necessary, as the petition has been filed in order to harass the tenant and that he was always ready and willing to pay or deposit the arrears of rent and also in future as per the directions of the Rent Controller and that if the amendment is allowed, it alters the very nature of the claim by giving fresh cause of action and the petitioner cannot take into account the subsequent events for the purpose of seeking amendment. Whereas, the learned counsel for the respondent submitted that the amendment was sought for by incorporation of an allegation about the subsequent default made by the petitioner in paying the rent in order to avoid multiplicity of the proceedings and in particular no prejudice would have been caused to the tenant, if the proposed amendment was allowed as the trial had not yet commenced.

The circumstances which gave raise to this interlocutory application for amendment of the petition may briefly be stated in order to appreciate the rival contentions. The eviction petition (R.C. No. 170 of 1975) was filed on the ground of wilful default in paying arrears of rent from April, 1974 to the end of the April, 1975. The tenant filed the counter in the main case on the next date of hearing which is 11-7-1975. The tenant presented the petition I.A. No. 583 of 1975 u/s 11 (1) of the Act for depositing the rent to the tune of Rs. 600/- and also to continue to deposit the future rents in the court on the allegation that the petitioner here in has been avoiding and refusing to receive the rents on the ground that the landlady refused to pass the receipt for the rents paid. The Amendment petition in I.A. No. 711 of 1975 was presented on 6-8-1975 during the pendency of of the aforesiad I.A. 583 of 1975, presented by the tenant. The tenant paid the sum of Rs. 700/- to the petitioner''s counsel in the court and the same was received without any prejudice to the rights of the parties and consequently, the petition I.A. No. 583 of 1975 was closed. It is under those circumstances, the amendment petition was not pressed.

I feel it is needless for me to go into those circumstances and give any judgment in so far as the second point is concerned, as I have already held that no appeal lay from the order of the Rent Controller passed in an interlocutory application for amendment of the eviction petition, as it was not final order within the meaning of Section 20 of the Act. In the result, the civil revision petition is allowed but in the circumstances, with no order as to costs.