Madhusoodhanan v. Haridas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR THURSDAY, THE 21[ST] DAY OF SEPTEMBER 2023 / 30TH BHADRA, 1945 O.P.(RC) NO. 45 OF 2023** **AGAINST THE ORDER DATED 11.01.2023 IN I.A.NO.4 OF 2022 IN R.C.P.NO.17 OF 2021 OF THE ADDITIONAL MUNSIFF COURT, IRINJALAKUDA** ## **PETITIONER:** **MADHUSOODHANAN, AGED 60 YEARS, S/O NARAYANAN NAMBOODIRI, PUTHILLATH MANA, IRINJALAKUDA.P.O, THRISSUR, PIN – 680121.** **BY ADVS. V.M.KRISHNAKUMAR P.R.REENA** ## **RESPONDENT:** **HARIDAS, AGED 64 YEARS, S/O SEKHARAN, NAYARUSERY HOUSE, KEERTHI FURNITURE, IRINJALAKUDA, IRINJALAKUDA P.O, THRISSUR, PIN – 68012.** **BY ADV RAJESH CHAKYAT C.** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 18.09.2023, THE COURT ON 21.09.2023 DELIVERED THE FOLLOWING:** **2** O.P.(RC) No.45 of 2023 ## JUDGMENT ## P.G.Ajithkumar, J. The petitioner in this Original Petition filed under Article 227 of the Constitution of India is the petitioner in R.C.P.No.17 of 2021 before the Rent Control Court (Additional Munsiff), Irinjalakuda. He filed I.A.No.4 of 2022 seeking leave to amend the rent control petition. The respondent resisted it by filing an objection. The Rent Control Court dismissed that petition as per order dated 11.01.2023. The said order is under challenge in this Original Petition. 2. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 3. In the rent control petition, it was averred that the petitioner was the owner of the petition schedule room. As against the plea of the petitioner that the respondent is a tenant liable for eviction under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, 1965, the respondent contended in his objection that he was a permanent tenant in terms of the agreement between the father of the petitioner and the respondent. In the wake of such an objection, the **3** O.P.(RC) No.45 of 2023 petitioner had filed I.A.No.4 of 2022 to add an averment in the rent control petition that the petition schedule room along with other properties was obtained by the father of the petitioner and other co-owners. The objection of the respondent is that by adding such a plea, the admission of the petitioner in the rent control petition that he was the sole owner of the petition schedule room would stand withdrawn and that will workout prejudice to the respondent. 4. The respondent admits that he is a tenant in the petition schedule room and he obtained the tenancy right from the father of the petitioner. In view of the provisions of Section 116 of the Evidence Act, 1872, the petitioner is estopped from denying his status as a tenant. Whether he is a tenant liable for eviction or is a permanent/perpetual tenant is a matter required to be decided at the trial in the rent control petition. Of course, the question whether the father of the petitioner was the sole owner or a co-owner may have relevance. That does not, however, bar the petitioner from bringing on record the real state of affairs concerning the title to the room in question. Title to an immovable property **4** O.P.(RC) No.45 of 2023 cannot be conferred by admission and it is not a matter of mere pleadings, but is a fact to be proved with the aid of admissible evidence. R.C.P.No.17 of 2021 is at the pre-trial stage. The purpose of the proposed amendment is to explain the nature of the title of the petitioner and his predecessor-ininterest to the petition schedule shop room. Allowing such an amendment will not, therefore, amount to withdrawal of any admission of a fact which has the effect of conferring right on the respondent. Hence, no prejudice shall be caused to the respondent by such an amendment. 5. In Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another [AIR 2022 SC 4256] the Apex Court laid down the parameters for allowing or declining a plea for leave to amend pleadings, which are,- “Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II R.2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in **5** O.P.(RC) No.45 of 2023 controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI R.17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of **6** O.P.(RC) No.45 of 2023 pleadings, the Court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. **7** O.P.(RC) No.45 of 2023 (xi) Where the amendment is sought before commencement of trial, the Court is required to be liberal in its approach. The Court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the Court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” 6. Viewed in the light of the law laid down in the aforesaid decision, this petition is liable to be allowed. Hence, the petition is allowed and on setting the order dated 11.01.2023 of the Rent Control Court, I.A.No.4 of 2023 is allowed. Upon carrying on the amendment, the respondent shall be given a reasonable opportunity to file his additional objection, if any. Sd/- ## P.B. SURESH KUMAR, JUDGE Sd/P.G. AJITHKUMAR, JUDGE dkr **8** O.P.(RC) No.45 of 2023 ## **APPENDIX OF OP (RC) 45/2023** ## **PETITIONER EXHIBITS** **Exhibit P1** **TRUE COPY OF THE RENT AGREEMENT DATED 05.02.1986 EXECUTED BETWEEN NARAYANAN NAMBOODIRI AND HARIDAS** - **Exhibit P2** - **TRUE COPY OF PETITION, RCP.NO.17/2021 FILED BEFORE THE RENT CONTROL COURT IRINJALAKUDA** - **Exhibit P3** **TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN RCP.17/2021 BEFORE THE RENT CONTROL COURT IRINJALAKUDA DATED 24.02.2022** **Exhibit P4** - **TRUE COPY OF IA.NO.4/2022 AND THE ACCOMPANYING AFFIDAVIT IN RCP.17/2021 FILED BEFORE THE RENT CONTROL COURT IRINJALAKUDA** **Exhibit P5** **TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT DATED 09.11.2022 TO EXT.P4 PETITION** **Exhibit P6** **TRUE COPY OF THE ORDER IN IA.NO.4/2022 IN RCP.17/2021 OF THE COURT OF THE RENT CONTROLLER, IRINJALAKUDA DATED 11.01.2023 IN IA.4/2022 IN RCP 17/2021**