# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
**&**
**THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR**
**THURSDAY, THE 22[ND] DAY OF SEPTEMBER 2022 / 31ST BHADRA, 1944**
**O.P.(RC) NO. 99 OF 2022**
**AGAINST THE ORDER DATED 08.03.2022 IN I.A.NO.12 OF 2022 IN R.C.P.NO.1 OF 2020 OF THE RENT CONTROL COURT (MUNSIFF), MUVATTUPUZHA**
## **PETITIONER:**
**BOBY PAUL, AGED 51 YEARS, S/O PAUL JOSEPH, KOOTTAPPILLIL HOUSE KUTHUKUZHY P.O, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN – 686691.**
**BY ADVS. N.ABHILASH E.S.SANEEJ M.P.UNNIKRISHNAN M.K.SAMYUKTHA DEEPU RAJAGOPAL SANDRA S.KUMAR PRAVEEN K. JOY**
## **RESPONDENT:**
**MATHEW J.MATHAI, AGED 25 YEARS, S/O K.V MATHAI, KOCHUPARAMBIL BUILDINGS, KOTHAMANGALAM, KOTHAMANGALAM VILLAGE, ERNAKULAM DISTRICT, PIN – 686691.**
**BY ADVS.**
**K.K.CHANDRAN PILLAI (SR.) AMBILY S**
**THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 25.08.2022, THE COURT ON 22.09.2022 DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## Ajithkumar, J.
Ext.P7, which is the order in I.A.No.12 of 2022 in R.C.P.No.1 of 2020 on the file of the Rent Control Court (Munisff), Muvattupuzha, is under challenge in this Original Petition filed under Article 227 of the constitution of India.
2. I.A.No.12 of 2022 was filed by the petitionertenant seeking leave to amend the objection filed by him in R.C.P.No.1 of 2020. The respondent-landlord filed R.C.P.No.1 of 2020 seeking eviction of the petitioner from the petition schedule building under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner filed an objection, Ext.P2 and the trial in the matter has been scheduled. It was after filing of an affidavit before the court by the respondent as PW1, the petitioner filed I.A.No.12 of 2022 invoking the provisions of Order VI, Rule 17 of the Code of Civil Procedure, 1908.
3. The respondent filed a counter, Ext.P6, resisting the application for amendment. It was contended that the trial
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in the case was already commenced, which disentitles the petitioner to seek leave for an amendment. On the application of the petitioner, the rent deed dated 15.03.2019 was impounded and the deficit stamp duty and penalty were paid by the respondent. The petitioner has no dispute regarding the deficit stamp duty and penalty paid by the respondent. It was thereafter the petitioner filed I.A.No.12 of 2022. The intention behind filing of the petition is nothing but protraction of the Rent Control Petition. Having admitted execution of the rent deed dated 15.03.2019, the petitioner ought not to have sought amendment of his pleadings in the fashion he seeks. The averments proposed to be added by way of amendment are in the nature of withdrawal of admission regarding the rent deed dated 15.03.2019. Additional pleading sought to be added are explanation regarding the evidence proposed to be tendered by the respondent.
4. The Rent Control Court after hearing both sides dismissed I.A.No.12 of 2022 as per the impugned order. The reasons for declining leave to amend the statement of
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objection are given by the Rent Control Court in paragraph No.8, which reads,-
“8. Considering the arguments advanced by the parties and going through the pleadings it is clear that the respondent has admitted the existence of lease or license was renewed on 15/03/2019 in the statement of objection. The respondent has every chance right from the beginning of the institution of the RCP to challenge the authenticity with respect to the proposed Ext.A1 document. With regard to the subsequent events the respondent has every right to cross examine the petitioner when the petitioner mount the box, even though an amendment in this regard is not incorporated in the statement of objection. The petition itself can only be seen as a ruse to delay the proceedings in the RCP. As the respondent has admitted the existence of the agreement dated 15/03/2019 later on by way of an amendment he cannot withdraw the same. Even if the petitioner is contending that the same document was not produced as proposed Ext.A1, he can very well put questions with respect to the same while in cross examining the petitioner. There is no need to the statement of objection. Hence, the petition is dismissed.”
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5. The petitioner would contend that since the trial was not commenced, that is to say, the respondent-landlord has not mounted the box although has filed the affidavit in lieu of chief-examination, there is no bar for allowing amendment and that the Rent Control Court went wrong in holding that there was admission by the petitioner regarding existence of the rent deed dated 15.03.2019 and dismiss I.A.No.12 of 2022.
6. On 06.05.2022, notice was ordered to be served on the respondent. On 17.08.2022, an interim order directing the Rent Control Court to defer further proceedings in R.C.P.No.1 of 2020 was granted for a period of one month.
7. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
8. The learned counsel for the petitioner would submit that the proposed amendment is not in the nature of withdrawal of any admission in Ext.P2 objection. The learned counsel further would contend that the trial in the case was
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not started, and therefore, the bar created by the proviso to Order VI, Rule 17 of the Code does not get attracted. In order to fortify his contention that in the matter of amendment, a liberal approach is required to be taken and that the trial did not commence in this case, the learned counsel has placed reliance on the decisions in **Sushil Kumar Jain v. Manoj Kumar and another [(2009) 14 SCC 38], Mohinder Kumar Mehra v. Roop Rani Mehra and others [(2018) 2 SCC 132]** and **Salim P.M. v. Vasudevan Namboothiri and others [2021 (5) KHC 740]** .
9. Contention of the petitioner in regard to the tenancy arrangement and also the rent deed dated 15.03.2019 is quite relevant to appreciate his plea for amendment. In the Rent Control Petition, the respondent had pleaded that on 15.03.2019 the petitioner-tenant executed a lease agreement in respect of the tenanted premises (ground floor and second floor) and on 30.05.2019, the petitioner vacated the second floor of the building. In answer to the same, the petitioner pleaded in Ext.P2 as follows:-
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“3. The respondent is conducting a business in the plaint schedule property by name and style M/s Matha Enterprises in the entire ground floor of the petition schedule building bearing Door No.XIV/631 of Kothamamgalam Municipality in Kochuparambil buildings in 4 cents, Kothamangalam Village, Ernakulam District. The respondent has been in the business of hardware and sanitary items and established in the name of 'M/s Matha Enterprises' for the last 14 years, occupying the entire building in the same place as tenant. The petition schedule building is a three storied building having building number XVII/1045, 1046, 1047 and the ground floor and the petition schedule building was entirely used by the respondent. When the building was leased out to the respondent, only ground floor of the building was completed. The petition schedule building has been rented out to the respondent by the petitioner as per the lease deed dated 18/01/2007 a monthly rent amount of Rs.2500/- and other charges for facilities. The amount of Rs 1 lacs was taken from the respondent and additional construction was done in the building. At the point of time, for additional construction of building amount was taken and hence there is charge over the building too and has to be construed as license. Thereafter the rent is increased from time to time and now at present the rent is Rs 11000/. The license, lease is continuing. Thereafter it was renewed on 15.03.2019 with the rent of Rs.11000/- and from the period 15.12.2020, it is continuing, as per the arrangement for 10 years.”
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10. The Rent Control Petition was filed seeking eviction of the petitioner under Section 11(3) of the Act. The ground for eviction set out is that the respondent, who is a postgraduate in Dental Surgery, wanted the petition schedule building to run a dental clinic. The petitioner does not deny the tenancy arrangement. In the context of the plea for eviction and the grounds set out, the admission made by the tenant regarding existence of the tenancy arrangement in respect of the ground floor area of the building precludes him from raising any further contention which amounts to denial of the rental arrangement. Contents of the rent deed dated 15.03.2019 do not have any role in resolving the dispute whether or not an eviction on the ground of bona fide need for own occupation can be allowed. In that view of the matter, the proposed amendment referring to the rent deed dated 15.03.2019 are irrelevant and not required to be added as part of the pleadings of the respondent.
11. It is seen from Ext.P1 that the rent deed dated 15.03.2019 was produced along with the Rent Control Petition
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and thereby it has become part of the pleadings. After admitting in unequivocal terms in Ext.P2 objection that the rental arrangement was renewed on 15.3.2019, it is not possible for the petitioner to come forward with a proposal for amending the objection so as to add explanations regarding the document evidencing the tenancy. In that view of the matter also, the proposal to amend the objection referring to the rent deed dated 15.03.2019 is not liable to be allowed.
12. The petitioner wants to add paragraph Nos.23 and 24 by way of amendment. Besides, plea regarding nature and contents of rent deed dated 15.03.2019, other details proposed to be added are explanations regarding the documents proposed to be proved by the respondent. Those documents were made mention of in the affidavit in lieu of chief-examination. A perusal of the proposed amendment certainly reveals that those are only matters of evidence and not of material facts required to be pleaded. Pleadings can contain only material facts. The averments proposed to be added with reference to the documents made mention of in
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the affidavit of the respondent are evidentiary in nature. Therefore, the same are also not required to be added in Ext.P2 objection by way of amendment. The petitioner will get ample opportunity to cross-examine the respondent with reference to the said documents and that will protect his right during the trial of the Rent Control Petition. In the said circumstances, we are of the view that the plea for amendment is not liable to be allowed and the Rent Control Court rightly had rejected it.
13. Since the leave for amendment is not liable to be allowed on merits, the legal contentions raised by the petitioner do not require consideration. For that reason, whether the bar created by the proviso to Order VI, Rule 17 of the Code interdicts Section 23(1)(j) of the Act is also not germane for consideration in this case. Hence, the decisions referred to by the learned counsel appearing for the petitioner or the learned counsel appearing for the respondent require no deliberations.
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Accordingly, we hold that this Original Petition is devoid of merits and liable only to be dismissed. Hence, this petition is dismissed.
Sd/-
## **ANIL K. NARENDRAN, JUDGE**
Sd/-
**P.G. AJITHKUMAR, JUDGE**
dkr
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## **APPENDIX OF OP (RC) 99/2022**
**PETITIONER EXHIBITS**
**EXHIBIT P1 TRUE COPY OF THE RCP NO. 1/2020 BEFORE RENT CONTROL COURT, MUVATTUPUZHA DATED 01.01.2020**
**EXHIBIT P2 TRUE COPY OF THE OBJECTION IN RCP NO. 1/2020 FILED BY THE PETITIONER.**
**EXHIBIT P3 TRUE COPY OF THE COMMISSION REPORT EXHIBIT P4 TRUE COPY OF THE E-COURT PROCEEDINGS DATED 10.02.2022**
**EXHIBIT P5 TRUE COPY OF THE AMENDMENT PETITION EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA NO.12/2022**
**EXHIBIT P7**
**TRUE COPY OF THE ORDER IN IA NO.12/2022 IN RCP NO. 1/2020DATED 08.03.2022 OF RENT CONTROL COURT, ERNAKULAM**
