Varghese Mathew and Jessy Mathew Represented by their Power of Attorney Holder vs T.R. Rajesh

T.R. Ramachandran Nair, J.—The petitioners herein, being the petitioners in RCP 7/2011, are aggrieved by Ext. P5 order passed by the Rent Control Court, rejecting the application for amendment of the eviction petition. The main reason pointed out by the court below for rejecting the application is that the said application was filed after the closure of the evidence of the landlords. Further, it is pointed out therein that in the light of the principle laid down by the Hon''ble Apex Court in J. Samuel and Others Vs. Gattu Mahesh and Others, also, the application cannot be entertained. We heard the learned counsel appearing for the petitioners Sri. Babu Paul and the learned counsel appearing for the respondent Sri. Jacob P. Alex. Sri. Babu Paul submitted that the amendment was required in the light of the amendment allowed by the very same court after the evidence of the landlords was over, permitting the tenant to add some more paragraphs, i.e. paragraphs 28A to 28D. It is therefore submitted that this is not a case where the law laid down in the decision in J. Samuel and Others Vs. Gattu Mahesh and Others, is applicable. More importantly, the learned counsel points out that at the time of examination of the landlords, tenant had nothing in his pleadings that the landlords own a three storied building in the very same locality and therefore there is failure to offer special reason under the first proviso to Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. It is submitted that during the examination of the landlords no question was put in cross examination about the said aspect. Therefore, the landlords did not get any opportunity to explain or offer any reason. This according to the learned counsel can be introduced only by way of an amendment as the tenant was allowed to bring in additional pleadings by way of Ext. P2 application for amendment and naturally the landlords should also be furnished with an opportunity to amend the pleadings. Sri. Jacob Alex, during his strenuous arguments, submitted that the Apex Court in J. Samuel and Others Vs. Gattu Mahesh and Others, has explained the significance of ''due diligence'' as ''test to determine whether court''s discretion to allow amendment should be exercised or not''.

In this case, the learned counsel submits that the said principle cannot come to the aid of the landlords as the amendment now sought to be introduced is a matter which was specifically within their knowledge even at the time of filing of the eviction petition. Therefore, the learned counsel submits that paragraph 19 of the judgment of the Apex Court will squarely support the plea raised by the tenant. The learned counsel for the petitioner had relied on another decision of the Apex Court in Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store,

We have perused the documents. The petitioners have filed eviction petition u/s 11(3) of the Act. As already noted Ext. P2 is an application for amendment filed by the tenant which is dated 17.10.2013. It is clear that the landlords'' evidence was closed on 18.10.2013. Ext. P2 petition filed by the tenant was ordered subsequently. The petition filed by the landlords for amendment is dated 12.11.2013, which is clear from Ext. P3.

In fact, the approach made by the Rent Control Court is that even though the application filed by the tenant was allowed, the situation herein is different from the earlier one. The fact that the landlords have another building was not disclosed earlier and therefore the principles enunciated by the Hon''ble Supreme Court in Samuel, J. and others'' case will squarely apply and the application cannot be allowed. It was also stated by the court below in paragraph 9 that this Court has directed the matter to be disposed of on or before 29.11.2013.

We have considered the rival submissions. The crucial question to be considered is whether the landlords should be given an opportunity to amend the pleadings. Even though in a fit case the principles stated by the Apex Court in J. Samuel and Others Vs. Gattu Mahesh and Others, may come into play, in the peculiar facts and circumstances of this case we are of the view that the approach made by the Rent Controller is not correct. Here, the tenant was allowed to amend the pleadings as evidenced by the proceedings of the court below pursuant to Ext. P2 application. When the tenant is allowed to amend the pleadings, normally and naturally the landlords should also be allowed to reply to the same. The same can be done only by way of filing amendment application, as it is not a counter claim. If the landlords are not allowed to do so, it will remain as a handicap for the landlords to contest the matter and therefore legally the landlords are entitled to counter the additional pleadings of the tenant and the same can be brought only by an amendment of the RCP itself. We have no reason to deny that opportunity to the landlords. Of course, the landlords have filed the application only after the evidence is over. The landlords cannot be blamed for the same, since Ext. P2 application filed by the tenant was also ordered by the Court after the closure of evidence of the landlords. In that view of the matter, even though the learned counsel Sri. Jacob Alex has brought our attention to the decisions of the Apex Court reported in J. Samuel and Others Vs. Gattu Mahesh and Others, and Bagai Construction Thr. Its Proprietor Mr. Lalit Bagai Vs. Gupta Building Material Store, the same are distinguishable on the facts of this case.

Apart from an application for amendment of the RCP the landlords had filed another I.A. No. 1779/13 for appointment of a Commissioner to conduct a local inspection and to file a report. The same is evident from the common order passed by the court below through Ext. P5.

It is seen from the counter affidavit filed by the tenant that along with the objections, a work memo is also shown for the Commissioner to ascertain, if the court was inclined to allow the application of the landlord.

In the light of the above, we allow this original petition and set aside Ext. P5 order of the Rent Control Court and the I.As. filed for amendment of the eviction petition and seeking permission for appointment of Commissioner will stand allowed. The Commissioner will conduct an inspection in terms of the points stated in the application filed by the petitioners and in the work memo filed by the tenants. After the filing of the report the court below shall expeditiously dispose pf the matter. Both parties are permitted to adduce additional evidence, if any, and the tenant is permitted to file an additional written objection to the amendments sought to be introduced by the landlords.

This original petition is, accordingly, allowed. No costs.