Smt. Phoolwati Hakim vs Ramesh Manocha

S.C. Pandey, J.

This revision, u/s 23-B of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as ''the Act'') is filed by the tenant / applicant against the order dated 25.4.96, passed by the Rent Controlling Authority, Jabalpur, in Eviction Case No. 32-A-90 (7) / 91-92. The Rent Controlling Authority has disallowed the application of the tenant under Order VII, Rule 11 of the CPC read with Section 151 thereof and has also rejected the amendment application under Order VI, Rule 17 of the C. P. C. for amendment of the written statement by the impugned composite order.

In order to appreciate the controversy between the parties it is necessary to state the relevant facts in brief. The applicant is the occupant of the House No. 652, Napier Town, Jabalpur. The house, in question, belonged to Rai Bahadur Motiram Mathuradas. The house, in question, was attached by the Income Tax Department for recovery of tax-dues and T. N. Bhaskar purchased the suit house from the son of Motiram Mathuradas by private negotiation on 11.3.1997 and the same was confirmed by the Recovery Officer on 11.3.1974. Accordingly, a sale certificate was issued to T. N. Bhaskar. A sale-dead was also executed by Kastoorilal Mathuradas in favour of T. N. Bhaskar. It appears that T. N. Bhaskar treated the applicant as his tenant and had filed two civil suits against the applicant. Civil Suit No. 10-A of 1974 was filed for arrears of rent. Civil Suit No. 10-A of 1975 (3-A of 1990) was filed u/s 12 (1) (a), (c) and (e) of ''the Act''. It appears that during the pendency of the civil suit, T. N. Bhaskar died. The property, in question, was sold by the legal heirs of T. N. Bhaskar to the non-applicants who were substituted in place of late T. N. Bhaskar, under Order XXII Rule 10 of the C. P. C. it appears, the non-applicants were permitted to prosecute the suit only on the ground u/s 12 (1) (e) thereof, in Civil Suit No. 10-A/75 (3-A/90). On 24.7.92, this suit was dismissed in default under Order IX, Rule 8 of the C. P. C. The non-applicants did not get the suit restored. In this suit as well as in the suit for recovery of arrears of rent, the applicant had denied the title of T. N. Bhaskar. Therefore, the non - applicant, being handicapped person, filed an application under Sec. 23-A (a) of ''the Act'' for eviction under Chapter III-A thereof, providing summary procedure for eviction. The applicant, after obtaining leave to defend, resisted the application filed before the Rent Controlling Authority, Jabalpur. It appears that the applicant also filed an application u/s 10 of the C. P. C. stating that in Civil Suit No. 10-A/74, the question of title is under examination by the Civil Court the applicant had denied title of T. N. Bhaskar and the present non-applicant. Therefore, the proceedings before the Rent Controlling Authority should be stayed u/s 10 read with Section 151 of the C. P. C. The Rent Controlling Authority rejected the application. The applicant then approached this Court in Civil Revision by order dated 20.9.93 holding that section 10 was applicable only to a Court. It was, interalia, held by this Court at paragraph 7 of its order, as follows :-

...... The application for eviction before the Rent Controlling Authority, therefore, cannot be treated to be a suit. Similarly, the Rent Controlling Authority cannot be held to be a court for the purpose of Section 10 of the Code. I rely on a decision of the Andhra Pradesh High Court in the case of M. Subbaramayya and others vs. Batchu Narasinha Swamy and another in which under similar circumstances, application of a tenant for stay of eviction proceedings before the R. C. A. under the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, was rejected..........................instituted before the R. C. A.

This Court concluded in the same paragraph 7 :-

I am not impressed by the argument of the tenant that the question of derivative title pending in the civil court would be binding on the parties, and, therefore, the R. C. A. should have stayed the proceeding before it. If the argument advanced on behalf of the tenant is accepted, the specified category of landlords would be deprived of the summary and speedy procedure of seeking eviction from the accommodation. It is open to the tenant to raise all contentions and pleas based on derivative title and the Rent Controlling Authority would be competent to decide the same in the proceedings before it. Merely for the reason that the main defense of the tenant based on derivative title pending adjudication before the civil Court, proceedings for eviction in a summary manner, pending before a specially constituted statutory authority, cannot be stayed. Such a course would not be in the interest of justice and no inherent powers u/s 151 of the Code can be taken aid of

This Court shall, therefore, first, examine the question raised by me applicant under Order VII, Rule 11 of the C. P. C. However, it is necessary to clear the ground, if Order VII, Rule 11 is applicable to the proceedings before the Rent Controlling Authority, it had already been held by this Court in Civil Revision No. 1883 of 1983 that Order XI of the C. P, C. applied to proceedings before Rent Controlling Authority because section 23-D (2) of ''the Act'' has to follow as far as practicable the practice and procedure or Court of Small Cause. Order L, Rule 1 (b) of the C. P. C. omits certain orders which are inapplicable and Order XI of the C. P. C. is not one of then. On the parity of reasoning to which no exception can be taken, it is held by this Court that Order L, Rule (1) (b) of the C. P. C. does not mention Order VII, Rule 11 thereof to show it to be inapplicable. Therefore, it is concluded that Order VII, Rule 11 of the C. P. C. applies to proceedings u/s 23- A of ''the Act'' before the Rent Controlling Authority.

Now, the question that has to be decided if the applicant is correct in contending that the application filed by the non-applicant is liable to be rejected under Order VII, Rule 11 of C. P. C. It is, therefore, necessary to reproduce Order VII, Rule 11 of the C. P. C. which reads as under :-

Order VII Rule 11 : Rejection of plaint.

The plaint shall be rejected in the following cases :-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the pliant is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within time to be fixed by the Court, fails to do so,

(d) where the suit appears from the statement in the plaint to be barred by any law :

(Provided that the time..........................to the plaintiff,)

It may be readily seen that Order VII, Rule 11 of the C.P.C. applies to rejection of plaint. Therefore, we have to modify that order for our purposes to say that exercise of power under this Order would amount to rejection or application before the Rent Controlling Authority. Therefore, it is necessary to read the application alone and find out it if is liable be to rejected as such without more. No extraneous material can be considered. The case of applicant is not under clauses (b) or (c) of Section 12 of ''the Act'' because a perusal of the application shows that there is a cause of action against the applicant on the facts mentioned in the application. The application under clause (b) or (c) of section 12 of ''the Act'' does not arise in a case of this type. Nor was it pressed into service. Therefore, we must concentrate on clauses (a) and (d). Does the case of the non-applicants appear from the Statement made in application itself barred by any law or does it not disclose any cause of action the application filed by the non-applicants in form A. It states that the non-applicant is covered by special class of landlords u/s 23-J (iv) of ''the Act''. He claims to be Landlord of the applicant after having purchased the suit house from legal her is of T. M. Bhaskar, who had purchased it from Kastoorilal, to whom the applicant was paying rent. It was stated in the application that the applicant became his tenant by operation of law. The non-applicants No. 2 and 3 appear to be proforma parties. These are the salient features of the application. Reading the application as such, it does not appear to be barred by any law or it cannot be said that the application does not disclose any ''cause of action''. The question of rejection of praint has to be decided on mere perusal of it. It was held by the Supreme Court in the case of T. Arivinandam Vs. T. V. Satyapai and another (1) reported in that :-

.....The learned Munsif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexatious, and meritless. in the sense of not disclosing a clear right to see, he should exercise his power under O. VII, R. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled.......

On the test laid down by the Supreme Court there is no question of exercise of power under Order VII, Rule 11 of C.P.C. The application under Order VII, Rule 11 of the C.P.C. was rightly rejected by the Rent Controlling Authority.

The next question that has to be decided is whether the Rent Controlling Authority rightly refused the application under Order VI, Rule 17 of the C. P. C. for amendment of the written statement. It has been vehemently contended by the counsel for the applicant that the Court is not concerned with the merits of the case of the applicant while granting leave to amend the written statement and the Rent Controlling Authority entered into the merits of the claim sought to be made by the applicant by way of defence and, therefore, wrongly exercised its discretion in refusing the permission to amend the written statement. The learned counsel for the non-applicant equally vehemently refuted the argument of the learned counsel for the applicant.

The question of giving permission to amend the plaint or written statement is not a question of initial jurisdiction. The Courts have ample power to grant leave to amend the pleadings. However, this power is discretionary and, therefore, no hard and fast rule can be laid down for exercise of discretion. It must be remembered that the exercise of discretion in such matter is part of procedural law in aid of substantive law. Therefore, the procedural law should not override the considerations of substantive law.

Reverting to the problem at hand, we may ask the question; "What does a defendant do when he seeks leave to amend the written statement earlier. He is merely trying to raise certain additional grounds of facts or law which he earlier omitted due to inadvertence, oversight or negligence. Normally, therefore, amendment should be liberally allowed on costs thrown away, provided they do not impinge upon the substantive rights of the opposite party. On the other hand, amendment applications made with ulterior motive or with mala fide intention, have to be refused because the amendment sought then would be in order to trip up the opposite party. However, these are merely general rules, based on number of decided cases on amendment - "the humble branch of learning" as Beam Well, Lj. put in the case of Till disley Vs. Harper (1). Nevertheless, this Court is bound to examine the scope of controversy between the parties and the jurisdiction of Rent Controlling Authority to decide if the amendment should be permitted or not. It is very difficult to agree with the counsel for the applicant that in no circumstances the court can look into the merits of the amendment sought to be made. It is certain that it cannot turn down on amendment sought to be made from the point of view its ultimate success. There is little confusion of thought here. The counsel for the applicant would like the Rent Controlling Authority not to touch the merits of amendment application with a pair of tongs because it is not within its province to decide to reject the amendment on the possibility of its ultimate success. Before granting leave to amend, it is duty of the Court to see that amendment in pleading is necessary for deciding the controversy. The Court is bound to ask the question, if the application for amendment is in good faith or is it vexatious, useless or unnecessary. The Court is also bound to ask the question if the amendment sought to be made, can be decided by the Court or is it beyond the power of the Court. The Court can definitely take a birds eye view of the amendment sought to be made for these purposes and not for judging the ultimate success of the party, if amendment is allowed. The last exercise would be begging the question. Therefore, a court cannot reject an amendment on facts because it appears to it to be false or on the question of law that it is not likely to succeed ultimately. But, to look to amendment application from the point of view other than its ultimate success, is not a decision on the merits.

8 The (earned (sic) for the applicant relied upon the decision in the case of Dharmalinga Chetti Vs. A. M. Krisanswami Chetty, (2) wherein Panchapakesa Aiyar, J. has observed that the Court is not concerned with the truth or falsity of the case while considering the application for amendment. No exception can be taken to this proposition. However, the learned Single Judge made it clear in paragraph 1 at page 467 of the order that, in that particular case it could not be judged whether the amendment was bona-fide or not. It would be determined when the evidence is led. It appears that in that particular case the trial Court had held that amendment was not bona-fide on the ground that the pleadings appeared to be false. For the reason, the learned single Judge held that the Court could not say if the amendment is false or not. This question has to be decided on merits when the case is decided on evidence. In the opinion of this Court, the learned single Judge has expressly confined the decision to the facts of the case and has not laid down a broad proposition to the effect that Court cannot look at the amendment application holistically for determining if it is in good faith. Another decision of Madras High Court in the case of T. P. Palanis-wami and another Vs. Deivensimmal and others, (1) says that the Court cannot look into the merits or demerits of an amendment application. This decision follows the decision in Dharmaiinga Chetti''s case (supra). Similar view was expressed by Tata Chari, J., in the case of Mangal Dass Sant Ram Gauba vs. Union of India and others, (2), following Dharmalinga Chetti''s case (supra). As already stated in all these cases, the amendment was soguht to be turned down from the point of view of ultimate success of the party. If the amendment is allowed. This Court agrees that the. learned Judges were right in holding that the amendment cannot be turned down on that basis. Reliance was also placed on the case of Chhotelal Bhailal Patel Vs. Akbarali and another (3). A careful examination of that case reveals that the Full Bench was required to give its opinion if the landlord could amend the plaint and claim a new ground for eviction u/s 12 (1) (i) of ''the Act'' during the pendency of the suit on the foundation of subsequent events. The Court held that it can do so relying on the Supreme Court''s decision in the case of Hasmat Rai and another Vs. Raghunath Prasad, (4). it is true that the Full Bench considered general principles in paragraph 4 regarding the question of amendment. In the opinion of the Court they are no different, then those already stated earlier and there is nothing in that Full Bench case which is contrary to what is stated earlier in this order regarding the general principles. This Court reiterates that the Court is not entitled to judge the merits of an amendment and nip it in the bud on the ground that if allowed, the case is not likely to succeed. However, this rule does not prevent the Court from looking at amendment application from the points of view (i) if it is made in good faith (ii) if it is necessary for resolving the controversy (iii) if it is frivolous or vexatious (iv) if the amendment is allowed whether the court shall have jurisdiction to decide the case (v) whether the opposite party is prejudiced by the amendment or imposition of costs thrown away, shall meet the ends of justice. These tests are not, however, exhaustive in themselves. These considerations are part of administration of justice. in other cases, many more categories can be found. The assessment so made shall be for the purpose other than factual merits of amendment. Thus, the Court does not agree with the learned counsel for the applicant that is no case, the Court will look to amendment sought to be made for its merits and it can only be judged during the course is trial. The court is definitely not concerned with merits of the amendment application but it can assess it holistically in order to see if justice shall be done to both the parties. That is not with an atomistic view to analyze the details of the matrix of the amendment but with concern how the amendment is related to a plaint or written statement, as the case may be, a whole if allowed, and if allowing it, would serve the ends of justice.

Having considered this humble branch of leanings somewhat pedantically, the stage is set for determining if the Rent Controlling Authority was right in refusing the amendment. We have already seen the crux of the application filed by the non-applicant No. 1 in the eviction case No. 32/91-92. We shall now examine in short, the written statement of the applicant. The paragraph 1 begins with denial of ownership of the non-applicant No. 1 and relationship of landlord and tenant. The title of T. N. Bhaskar is denied. The competence of legal heirs of T. N. Bhaskar to execute the sale-deed dated 9.11.83 is denied. It is also denied that the non-applicant is physically handicapped person as per section 23-J (iv) of ''the Act''. The bona fide requirement of applicant is also denied. The ownership of non-applicants No. 2 and 3 in respect of part of bunglow is also denied. It is also denied that medical certificate dated 29.5.91 has been procured (sic). Then by way of additional pleadings it is sought to be shown that sale-deed dated 13.3.74 is invalid. The written statement was filed on 29.9.93.

In the amendment application dated 13.12.95 the following amendment was sought to be made :-

B. That the civil suit was filed by late Sri T. N. Bhaskar. the alleged predecessor of present applicant and non-applicants No. 2 and 3 on 19.7.1975 which was registered as CS/10A/75 with the prayer for eviction of present non-applicant No. 1 on the grounds of Disclaimer of Title, non-payment of rent since September, 1974 and bona fide need of said late Sri Bhasker. In para 12 of said civil suit it was pleaded by late Sri Bhaskar that the tenancy of present non-applicant was determined with effect from 1.10.1974 for denial of title and land lordship of plaintiff in that suit. The present non-applicant also filed her WS. and denied the title and land lordship of late Shri T. N. Bhaskar in said civil suit. The present applicant and non-applicants No. 2 and 3 entered into the shoes of a civil suit filed by late Shri T. N. Bhaskar before Civil Judge Class II, Jabalpur in civil suit No. 10A/75 later re-numbered as C/3A/90 under the provisions of Order 22 Rule 10 of C. P. C. TO CONTINUE THE CIVIL SUIT BEING THE ALLEGED TRANSFEREE of disputed property. Further the option was already exercised by LRs. of late Sri Bhaskar to continue their remedy in civil courts u/s 12 of M. P. Accommodation Control (Amendment Act), 1983 which was followed in principal by present applicant and the civil suit continued in civil court. -C. That the present applicant and his co-owners who alleged to have purchased the property under dispute ultimately abandoned the civil suit as the whole which was dismissed in default for want of prosecution by order of Civil Court dated 24.7.1992. Therefore, the dispute between present parties came to an end on 24.7.1992 and the present non-applicant (Smt. Phoolwati Hakim) perfected her title by way of adverse possession on completion of 12 years from the date of alleged determination of tenancy on 1.10.1974 which is not disputed by present applicant in present application also. Therefore, the maxim ''INVITO BENEFICIUM NON DATUR'' Shall strictly come into play against applicant Ramesh Manocha and his alleged co-owners which means whosoever waives, abandons or disclaims a right will loss it.

D. That under Article 67 of Limitation Act, 1963 which applies in present case, the period of limitation is 12 years from the date of determination of tenancy for seeking possession of property from tenant by landlord. Therefore, in this fiction also the application of present applicant in ex-facie badly time barred which has been presented before the Hon''ble Tribunal on 04.12.1992 i. e. more than 19 years after determination of tenancy. Therefore, the application is liable to be rejected in limine." It is clear that the applicant claims that his tenancy was determined on 1.10.1974 as alleged in civil suit No. 10-A/ 75. The applicant denied the title of T. N. Bhaskar in that suit. The suit was dismissed in default on 24.7.1992 after the non-applicant was brought on record. The dispute between the applicant and the non-applicant No. 1 comes to an end on 24.7.92 and, therefore, the applicant, who had denied the title, has perfected the title by adverse possession as per Article 67 of Limitation Act. Further, the non-applicants have waived their rights too.

The Rent Controlling Authority has rejected this amendment by long order. Therefore, it is necessary to examine the amendment as a whole. It is clear that this plea was not taken by the applicant initially and there is delay of two years. It is also clear that the Rent Controlling Authority is required to follow the procedure of Small Causes Courts as far as possible in view of Section 23-D (2) of ''the Act''. The procedure given in Provincial Small Causes Courts Act governs the procedure of Small Causes Courts. Section 23 of that Act prohibits a Small Cause Court from trying small cause cases depending upon proof or disproof of title in immovable property and directs the Court to return the plaint for trial in a court of competent jurisdiction. It is true that Section 23-D (2) of ''the Act'' does not incorporate Section 23 of Provincial Small Cause Courts Act by reference but it is reasonable to hold that the ''question of title'' of immovable property cannot be decided by Rent Controlling Authority which is enjoined to dispose of application filed before it within six months from the date of grant of leave to defence. Moreover, there is no right of appeal in cases decided by Rent Controlling Authority and only a revision could be filed against its order. Further, the intendment of legislature has been made impliedly clear in section 23-A (a) and 23-A (b) of ''the Act'' as compared to Section 12 (1) (e) and (12) (1) (f) thereof, respectively. The landlord, filing an application u/s 23-A (a) and 23-A (b) of ''the Act'' is not required to prove his ownership whereas, if he is required to file a suit u/s 12 (1) (e) and 12 (1) (f) of ''the Act'', he has to prove his ownership in order to evict the tenant. The legislature, in its wisdom, has dropped the words if he is owner thereof found u/s 12 (1) (e) and 12(1) (f) of ''the Act'', in Section 23-A (1) and 23-A (b) of ''the Act''. This distinction has been noticed in the case of Ramchandra Singh Jadon Vs. Satya Prakash Gupta, (1). It appears to this court, that the Rent Controlling Authority being a tribunal of limited jurisdiction, enjoined to follow the procedure of Small Cause Courts by the legislature, cannot be held to have jurisdiction to decide complicated questions of title as is done in a Civil Court. Therefore, the plea of a tenant denying the relationship of landlord and tenant would be sufficient. This plea is the only material plea that the Rent Controlling Authority is competent to decide and this is only question that can be raised before it. This is the only question which is directly and substantively in issue. The rest of the case of the applicant is mere verbiage. If the transfer is invalid, she cannot be a tenant. It is not necessary for her to prove that she has perfected her title by adverse possession. So far as plea of limitation under Article 67 of the Limitation Act is concerned, it applies to a suit. The suit is ordinarily filed in a Civil Court. The Rent Controlling Authority has been conferred with power of a civil Court, but it cannot be said to be a Court. It is an authority under ''the Act''. It does not function as a Court. The procedure indicated in Chapter III-A is eloquent by itself. The landlord is required to file an application. The tenant is to file his defence after obtaining permission from the Rent Controlling Authority. Therefore, by no stretch of imagination Rent Controlling Authority can be said to. be Court. In any case, this Court has already decided in C. R. No. 235 of 1981, decided on 20.9.1993 that the Rent Controlling Authority is not a civil Court for the purpose of Section 10 of the CPC and the proceedings before the Rent Controlling Authority are not suits. The SLP of the applicant has already been dismissed. Thus, the applicant is barred from raising a plea that the Rent Controlling Authority is a Civil Court and proceedings before it are suits on the ground of res-judicata. In view of this matter, the Rent Controlling Authority had no initial jurisdiction to decide and plea based on Limitation Act. The Supreme Court, in the case of Vidyacharan Shukla Vs. Khubchand Baghel and others, (2) had taken the view that Limitation Act and the CPC are, in parimatena, both being statutes of procedure. For this reason, it is not appropriate to consider the scope of plea of limitation sought to be raised and hotly debated at the Bar. The amendment on the plea of limitation is liable to be rejected on the basis that proceedings before the Rent Controlling Authority cannot be held to be suits. Further, it is held that the Rent Controlling Authority cannot decide, if the applicant had perfected her title by adverse possession. All that the applicant is entitled to say that she is not tenant of the non-applicant and in this process she can say that the non-applicant No. 1 never acquired the title as he claims to have done through T. N. Bhaskar who himself was without any real title. Such plea was already there in the original written statement.

However, the plea regarding the fact that since the non-applicant got his suit dismissed in default under Order XI, Rule 8 of the C. P. C. He cannot pursue his remedy before the Rent Controlling Authority, is not to be considered. It appears to this Court that Rent Controlling Authority has ample jurisdiction to device that the amendment sought to be made is within its jurisdiction or not. It can also consider if the application is vexatious or frivolous. It can also consider it is malafide. Here, it may be noticed that looking to its limited jurisdiction the Rent Controlling Authority can give permission to leave to defend to the applicant u/s 23 (c) of ''the Act''. It is implied in the power u/s 23 (c) of ''the Act'' that it can permit the applicant leave to amend only on limited grounds and not all the grounds sought to be raised by the tenant. Initially, the permission may not have been sought on the amendment sought to be incorporated. The applicant raises these grounds after two years of filing the application. The Rent Controlling Authority is equipped with jurisdiction to try simple question of bonafide requirement. It cannot decide the question of title. It was not disputed before the Rent Controlling Authority that after substitution, the applicant and others were entitled to continue the suit u/s 12 (1) (a) and 12 (1) (c) of ''the Act''. The result of dismissal of that suit would be that non-applicant No. 1 was not entitled to file suit on the same cause of action. These very grounds were not taken earlier in the application u/s 23 (c) of ''the Act'' before the Rent Controlling Authority. The Rent Controlling Authority was not concerned with the plea of the applicant in the suit but with the effect of dismissal of the Suit under Order IX Rule 8 of the C. P. C. Order IX. Rule 8 of the C.P.C. does not prevent a plaintiff from filing a suit on different ''cause of action''. Since Order IX rule 8 of the C. P. C. is also applicable to proceeding before the Rent Controlling Authority as it is not barred by Order L of the C.P.C., the question that is to be decided is if the applicant can take a plea that the effect of dismissal of the civil suit would bar an application u/s 23-A (a) of ''the Act''. In the suit, in question, so far as the non applicant No. 1 was concerned, the court was required to determine if the applicant had done an act to the detriment to the title of non-applicant and that if she was in arrears of rent as stated in the plaint, to give him a right of decree. The cause of action'' in that suit was altogether different. More important the Court of limited jurisdiction i. e. Rent Controlling Authority cannot even consider these questions in the application before it. The application before it was on bona-fide requirement of the non-applicant for his residence. This claim is not directly and substantially in issue in the suit. The Rent Controlling Authority cannot decide on the effect of dismissal of the suit because : (i) the application before it is not a suit (ii) the cause of action before it is altogether different (iii) the dismissal of suit at best would disentitle the non-applicant No. 1 to bring a suit on the same cause of. action. The cause of action is different before Rent Controlling Authority. It is not based on grounds u/s 12 (1) (a) or 12 (1) (c) of ''the Act'' in that plaint (iv) that there is tacit assumption on the part of the applicant that the dismissal of suit impliedly amounted acceptance of defence raised by the applicant where as even in that suit it cannot be said that the question of title was directly and substantially in issue (v) it cannot be said that after the suit of non applicant No. 1 was dismissed, there was no relationship of landlord and tenant. However, what was definitely conceded that he did not want to press the suit on the facts forming part of that cause of action. For judging the cause of action the entire bundle of facts constituting ''cause of action'' have to be looked into. The applicant cannot pick up one of the material fact to raise a defence of non-maintainability, particularly, when that material fact i. e. question of title of plaintiff or defendant qua owner is not directly and substantially in issue between landlord and tenant.

The aforesaid consideration for disallowing the amendment cannot be said to be judging the case on merits. It is not an exercise for non-suiting the applicant on the ground that the amendment, if allowed, would succeed or not. It is, however, an attempt to look at the amendment on the face of it and assessing if the applicant has a bonafide claim. The Court has looked the case holistically not with a view to its ultimate success. The Court has considered the nature of claim and jurisdiction of the Rent Controlling Authority and also the scope of application before it. The discretion for granting leave to amend has to be exercised in a sound manner and not capriciously. By refusal to grant amendment the applicant does not suffer. She can always raise the ''question of title'' in a properly constituted Suit. The non-applicant No. 1 definitely is liable to be prejudiced if these questions are permitted for the reason the Rent Controlling Authority meant to decide simple question of relationship of landlord and tenant and not complicated question of title. They cannot be permitted to be tried their lest they be held to be res judicata under Explanation VIII to section 11 of the Code of Civil Procedure. This Court is further of the view that the amendment sought by the applicant is mala fide. The application for amendment was not filed for raising a genuine defence to the claim of the non-applicant but with a view to halt the progress of the case. There is considerable delay in filing the application for amendment. The application for-amendment was filed in the month of December 1975. The written statement was filed on 29.9.93 after obtaining leave to defend. It is obvious in the application for leave to defend u/s 23 (c) of ''the Act'' no such ground must have been taken. Now, after litigating in the matter for almost three years, the applicant wants to amend these pleas. Such an amendment can be nothing but mala-fide. It is delayed. It may be remembered here that the application u/s 23-A of ''the Act'' a suit wherein leisurely procedure is permitted due to long pendency of suits. The legislature itself has taken the category of cases which non-applicant No. 1 has claimed to belongs, out of jurisdiction of Civil Court and directed that they be finally decided within six months from the date of leave to defend has been granted. To take such a long time to take defence and permit it to be decided by itself would be against the intention of Legislation. For all these reasons, this Court holds that the non-applicant No. 1 is likely to be prejudiced if this Court permits amendment of written statement and compensation in cash would not be an adequate relief.

The result, is, the revision fails and is dismissed with costs, the Rent Controlling Authority, Jabalpur, shall proceed to decide the case pending before it in accordance with the provisions of ''the Act'' at an early date, as the time prescribed for its decision has already expired. Counsel fee Rs. 150/-, (Rupees one hundred fifty), if certified.