High Court of KeralaDivision Bench2018-12-10Dismissed

Manoj Sreedhar S/o Late M.P Sreedharan Nair v. P.K. Vijayan

Case / Petition Number:OP (RC).No. 190 of 2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Harilal
Annie John
Judgment Date: 2018-12-10
Court Decision / Holding: The petition is dismissed. The Rent Control Court’s order dismissing Ext.P3 is upheld; OP (RC) No. 190 of 2017 stands disposed without amendment to the original petition.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Manoj Sreedhar S/o Late M.P Sreedharan Nair, AISWARYA, Thoppilkadav, Kollam West Village, Kollam - 691 012

Respondents

P.K. Vijayan S/o Kochukunju Panicker, Puthupparambil Veettil, Amalloor Muri, Kuttapuzha Village, Thiruvalla Taluk, Pathanamthitta District - 689 103

Legal Representation & Advocates

Counsels for Petitioners

• Sri. B. Mohanlal

Counsels for Respondents

• Sri. S. Subhash Chand

Case Synopsis & Summary

This High Court of Kerala (Ernakulam) petition challenges Ext.P5 order, which dismissed Ext.P3, an application for amendment to Ext.P1 original petition in Rent Control Case No. 13/2015 before the Rent Control Court, Thiruvalla. The petitioner-landlord, a practising lawyer, sought to amend the original petition after evidence had been closed to reflect a higher rent—Rs.11,400 per month instead of Rs.6,840 (i.e., Rs.50 per sq ft) — based on rental documents of nearby bank buildings, specifically Allahabad Bank (Rs.58 per sq ft) and Axis Bank (Rs.62 per sq ft). The aim was to adjust the prayer to Rs.11,400 and modify the relief accordingly. The Rent Control Court had considered Ext.P3 on 10-10-2017 and, upon evaluating the documents with fresh commission evidence, dismissed the amendment as not maintainable, noting that the amendment was being sought after trial and that the petitioner had knowledge of the documents earlier. The petitioner approached this Court under Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, 1965 r/w Order VI Rule 17 and Section 151 CPC, arguing that the appellate court can exercise its discretion to allow amendments. While the court discussed the proviso to Rule 17 and cited Gopinathan Pillai v. Sumathykutty Amma, the bench held that the Act limits amendments to defects in orders or proceedings and cannot be extended; consequently the petition was dismissed.

Provisions of Law Cited

Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, 1965Order VI Rule 17 of the Code of Civil Procedure, 1908Section 151 of the Civil Procedure CodeProviso to Rule 17 of Order VI CPC

Legal Doctrines & Maxims

No amendment shall be allowed after the trial has commenced unless the party could not have raised the matter before the commencement of trial due to due diligence.
Court has power to amend defects or errors in orders or proceedings under Section 23(1)(j) of the Kerala Building (Lease and Rent Control) Act, 1965.
CPC amendments during appellate stages may be entertained in some circumstances (as discussed in Gopinathan Pillai v. Sumathykutty Amma), but such power is constrained by the statutory scheme of the Act in question.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that amendment is necessary to reflect the modern prevailing rents derived from adjacent bank properties (Allahabad Bank and Axis Bank) and to revise the rent claim to Rs.11,400 (Rs.58-62 per sq ft). It is urged that Rule 17 of Order VI CPC, read with Section 23(1)(j) of the Act, permits amendments at any stage to determine the real controversy, and that due diligence delayed discovery of these documents rather than negligence. The counsel relies on Gopinathan Pillai v. Sumathykutty Amma (2015) (5) KHC 543 to support appellate authority to permit amendments under CPC provisions; requests the court to permit amendment and ensure fair rent assessment.

Contentions of Respondents

The respondent tenant opposes amendment, arguing it would prejudice him by introducing new facts and altering the relief sought, especially since the documents existed prior to filing and trial had begun. The Rent Control Court found the application for amendment to be unwarranted, citing lack of due diligence and limits under Section 23 of the Act. The appellate court’s role is constrained by the statute; reliance on Gopinathan Pillai is distinguished rather than controlling.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Gopinathan Pillai v. Sumathykutty Amma and Others	2015 (5) KHC 543	Distinguished	Cited to discuss appellate power to permit amendments under CPC; however, the Kerala Rent Control Act’s limitations prevail, and the court distinguishes this case as not controlling for the present matter.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** **OP (RC).No. 190 of 2017** **AGAINST THE ORDER IN I.A NO.3244/2017 IN RCP 13/2015 of RENT CONTROL COURT, THIRUVALLA DATED 12-10-2017** ## **PETITIONER/S:** **MANOJ SREEDHAR S/O. LATE M.P SREEDHARAN NAIR, AISWARYA, THOPPILKADAVU,KOLLAM WEST VILLAGE, KOLLAM - 691 012.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENT/S:** **SRI. P.K. VIJAYAN S/O. KOCHUKUNJU PANICKER, PUTHUPARAMBIL VEETTIL,AMALLOOR MURI, KUTTAPUZHA VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT - 689 103.** **BY ADV. SRI.S.SUBHASH CHAND** **THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 10.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 **OP (RC).No. 190 of 2017** ## **JUDGMENT** ## **ANNIE JOHN, J** **This petition is filed challenging Ext.P5 order, dismissing Ext.P3 application for amendment to Ext.P1 original petition passed by the Rent Control Court. The petitioner/landlord is a practicing Lawyer. The respondent/ tenant is the counter petitioner in R.C.P. No.13/2015 on the file of the Rent Control Court, Thiruvalla. The petitioner herein has filed Ext.P3 application for amendment of Ext.P1 original petition, for which the respondent has filed Ext.P4 objection. The Rent Control Court has considered Ext.P3 application on 10.10.2017 and posted for orders on 12.10.2017 and thereafter, closed the evidence of the petitioner on 10.10.2017. On knowing this fact of dismissal of Ext.P3 application, a copy application was filed and after obtaining the same, he has filed this petition before this Court, seeking** a **direction to the court below to issue a copy of the order within three days. The lower court without considering these facts, dismissed Ext.P3 application** 3 **OP (RC).No. 190 of 2017** **by Ext.P5 and directed to amend the original petition for fair rent at the rate of Rs.50/- per sq. feet. Aggrieved by the order of the Rent Control Court, the petitioner has filed this petition.** **2. The petitioner has filed the petition under Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, 1965 r/w Order VI Rule 17 and Section 151 of Civil Procedure Code. According to the petitioner, he has filed amendment petition after completing the evidence of the petitioner, on the ground that the lease deed of adjacent buildings, Allahabad Bank building and Axis Bank building, show the rent as Rs.58/- per sq.feet and Rs.62/- per sq.feet respectively and those are the prevailing rate of rents in that locality. On the strength of the same, the petitioner has sought for amendment to incorporate the rent as Rs.11,400/- instead of Rs.6,500/- @ Rs.50 per sq. feet and also in the prayer portion, he substituted Rs.11,400/- instead of Rs.6,840/-. It was listed for trial on 15.09.2017. After completing the evidence of petitioner and remitting back the commission report, a fresh commission report was filed. Thereafter, the petitioner filed amendment petition on the basis of the documents produced by the witnesses. According to the** 4 **OP (RC).No. 190 of 2017** **respondent, the petitioner is trying to fill the lacunae and drag the matter and it will cause prejudice to the respondent. The respondent has strongly opposed the said application and filed objection.** **3. In fact, it is a well settled fact that no amendment can be allowed after the trial has commenced, unless the court came to a conclusion that in spite of due diligence the petitioner could not have raised this matter before the court of trial. Here, the petitioner sought for amendment of the petition on the strength of Exts.A1 and A3 documents produced by PWs2 and PW3, who are the Bank Managers of Allahabad Bank and Axis Bank and the lease deeds of those banks are registered public documents of the year 2012. Rent control petition was filed in the year 2015. Hence, it could not be stated that the existence of this document was not known to him even after due diligence.** **4. After examining both sides and arguments, the Rent Control Court has held that the petitioner had knowledge of the document and he was aware of the facts before filing the application for amendment of the petition and as per Section 23(1)(j) of the Kerala Buildings (Lease and Rent Control) Act, 1965, the Rent Control** 5 **OP (RC).No. 190 of 2017** **Court has got power to amend any defect or errors in orders or proceedings. Of course, the Rent Control Court can adopt the provisions under the Code of Civil Procedure 1908, while considering the application.** **5. The petitioner's counsel has placed before us a decision of this Court reported in Gopinathan Pillai v. Sumathykutty Amma and Others [2015 (5) KHC 543] and argued that even at the appellate stage also, the Court can invoke Order VI Rule 17 and Section 151 of Civil Procedure Code. In that decision, it is held that an application for amendment of plaint is maintainable in an appeal filed after the enactment of the CPC Amendment Act, 2002.** ## **Rule 17 of Order VI of the Code of Civil Procedure reads as follows:** "17. Amendment of pleadings.-- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." ## **6. Rule 17 of Order VI consists of two parts. The first part** **provides that the Court may, at any stage of the proceedings, allow** **either party to amend his pleadings and the second part provides** 6 **OP (RC).No. 190 of 2017** **that such amendment shall be made for the purpose of determining the real controversy between the parties. The second part is imperative and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. It is true that the appellate court would ask the party applying for amendment as to why he did not make an application before the trial court and why he did not make an application before the commencement of trial. So, the appellate court may also ascertain whether the party applying for amendment could not have raised the matter before commencement of trial. All those parameters were being applied by the appellate courts even before the introduction of the proviso to Rule 17 of Order VI of the Code of Civil Procedure. Accordingly, in** _**Gopinathan Pillai**_ **, it is held that the appellate courts have not lost such powers and discretion after the introduction of the proviso to Rule 17 of Order VI CPC. It is true that Rule 17 of Order VI CPC is applicable to the matter which comes under the provisions of civil matters. But, according to Section 23(j) of the Kerala Building (Lease and Rent Control) Act, 1965, it gives power only to amend any defect or** 7 **OP (RC).No. 190 of 2017** **errors in orders or proceedings, if found by the petitioners or respondents during the trial. So this Court cannot exceed the power other than what is stated under Section 23 of the Act. Therefore, the argument placed by the learned counsel for the appellant will not stand. The lower court has considered this matter in detail and found that this petition is not maintainable; accordingly it was dismissed. We do not find any ground to interfere with the order of the lower court. Therefore the petition filed is liable to be dismissed. In the result, this OP is dismissed.** **Sd/-** **K.HARILAL** **JUDGE** **Sd/-** **ANNIE JOHN JUDGE** **SB/11/12/2018** 8 **OP (RC).No. 190 of 2017** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **THE TRUE COPY OF THE APPLICATION BRC (OP) NO: 13/2015 FILED BY THE PETITIONER BEFORE THE RENT CONTROL COURT, THIRUVALLA.** - **EXHIBIT P2 THE TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT IN BRC (OP) NO:13/2015 BEFORE THE RENT CONTROL COURT, THIRUVALLA.** - **EXHIBIT P3 THE TRUE COPY OF THE APPLICATION IN I.A NO:3244/2017 IN R.C.P NO:13/2015 FILED BY THE PETITIONER BEFORE THE RENT CONTROL COURT, THIRUVALLA.** - **EXHIBIT P4 THE TRUE COPY OF THE OBJECTION DATED 27/09/2017 FILED BY THE RESPONDENT BEFORE THE RENT CONTROL COURT, TNIRUVALLA.** - **EXHIBIT P5 THE TRUE COPY OF THE ORDER DATED 12/10/2017 IN I.A NO: 3244/2017 IN R.C.P NO:13/2015 ON THE FILE OF THE RENT CONTROL COURT, THIRUVALLA.** **RESPONDENTS EXTS: NIL** ## **// TRUE COPY //** **P.A TO JUDGE**