High Court of KeralaDivision BenchOriginal petition allowed; Ext.P5 set aside; am...

Varghese Mathew and Jessy Mathew v. T.R. Rajesh

Case / Petition Number:OP (RC) No. 4216 of 2013 (O)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • T.R. Ramachandran Nair
  • B. Kemal Pasha
Judgment Date
2014-01-22
Court Decision / Holding
The petition is allowed. Ext.P5 is set aside; the tenant’s amendment (Ext.P2) and related I.As are permitted, and the landlords are allowed to counter the amended pleadings. A Commissioner is to be appointed to conduct a local inspection and file a report, after which the matter should be disposed of expeditiously. Both parties may adduce additional evidence, and the tenant may file an additional written objection to the amendments. No costs.
Final Disposition
Original petition allowed; Ext.P5 set aside; amendment permitted; Commissioner to inspect; additional evidence permitted; no costs; expeditious disposal ordered.

Parties to the Case

Appellants / Petitioners

  • Varghese Mathew
  • Jessy Mathew

Respondents

  • T.R. Rajesh

Legal Representation & Advocates

Counsels for Petitioners

  • • Babu Paul

Counsels for Respondents

  • • Jacob P. Alex

Case Synopsis & Summary

Varghese Mathew and Jessy Mathew, petitioners in OP (RC) 4216 of 2013, challenged Ext.P5, the Rent Control Court’s order rejecting their application for amendment of the eviction petition under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act. The landlords’ evidence had already been closed when Ext.P2 sought to amend to add new paragraphs (28A to 28D) and the petition also included requests for appointment of a Commissioner. The Rent Control Court allowed the tenant to amend, but the landlords argued they should be given an opportunity to meet the new pleadings. The High Court examined whether decisions of the Supreme Court in J. Samuel and others v. Gattu Mahesh and others and Bagai Construction v. Gupta Building applied and, if so, whether those authorities were distinguishable. It noted that the facts differed, including the landlords’ failure to disclose a separate building, and emphasized the principle of due diligence in exercising discretion to permit amendments. Ultimately, the court held that the landlords must be allowed to counter the added pleadings and that the petition should be allowed, with Ext.P5 set aside and the amendment(s) permitted; it directed the Commissioner’s appointment for inspection and allowed the parties to adduce additional evidence, with no costs and a direction for expeditious disposal.

Provisions of Law Cited

Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act

Legal Doctrines & Maxims

  • Due diligence (test to determine whether court's discretion to allow amendment should be exercised)
  • Opportunity to amend pleadings (principle allowing a party to meet pleadings through amendments)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that Ext.P2 sought by the tenant to amend the eviction petition was necessary to reflect facts known to the tenant about the landlord's other property and to align pleadings with evidence. They contended that the amendment was permitted by the Rent Controller after evidence, consistent with due diligence, and that the landlords must be permitted to respond to the added pleadings. They asserted that denial would cause injustice and prejudice the tenant, and that the amendment should be allowed to avoid miscarriage of justice; they also highlighted that the landlords’ failure to disclose a separate building originally should be addressed by allowing amendment and counter-pleadings.

Contentions of Respondents

The respondents contended that the amendment, sought after evidence was closed, would amount to altering pleadings and prejudicing the landlords. They argued that J. Samuel and Gattu Mahesh and Others v. were applicable and that the amendments needed to be justified by special reasons under the proviso to Section 11(3). They asserted that the landlord should be given an opportunity to respond to added pleadings and that the court should adhere to the required sequence of evidence and pleadings. They emphasized that due diligence cannot override limitations and that the decisions cited were distinguishable or not directly applicable to the facts.”

Cited Precedents (2)

Case NameCitationTreatmentExplanation
J. Samuel and others v. Gattu Mahesh and others[(2012) 2 SCC 300]DistinguishedThe High Court discussed this decision but held it distinguishable on the facts of the case, thus not controlling the outcome.
Bagai Construction v. Gupta Building[2013 (1) KLT Suppl. 60(SC)]DistinguishedThe Court cited this decision but found it distinguishable on facts; did not apply its rationale to overrule or control the present case.

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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 T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935 OP (RC).No. 4216 of 2013 (O) ----------------------------- AGAINST THE ORDER/JUDGMENT IN RCP 7/2011 of M.C.,PATHANAMTHITTA PETITIONER(S): -------------------------- 1. VARGHESE MATHEW, AGED 58 YEARS S/O. A.V.MATHEW, RESIDING AT ASSANPARAMBIL HOUSE KOZHENCHERRY P.O., PATHANAMTHITTA DISTRICT. 2. JESSY MATHEW, VARGHESE MATHEW, AGED 56 YEARS, RESIDING AT ASSANPARAMBIL HOUSE, KOZHENCHERRY P.O. PATHANAMTHITTA DISTRICT BOTH THE PETITIONERS ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER, JOSE MATHEW, AGED 50, S/O. A.V.MATHEW RESIDING AT ASSANPARAMBIL HOUSE, KOZHENCHERRY P.O. PATHANAMTHITTA DISTRICT. BY ADV. SRI.BABU PAUL RESPONDENT(S)/DEFENDANT : -------------------------------------------------- T.R. RAJESH, AGED 46 YEARS S/O. T.N.RAJAPPAN NAIR, THOMPIL VEEDU KOZHENCHERRY P.O., PATHANAMTHITTA DISTRICT. R BY ADV. SRI.JACOB P.ALEX R BY ADV. SRI.JOSEPH P.ALEX THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 22-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (RC).No. 4216 of 2013 (O) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- P1 : COPY OF JUDGMENT IN OPC NO.2499/13 DTD.30.7.2013. P2 : COPY OF THE IA NO.1518/13 BY THE RESPONDENT IN RCP NO.7/11 HON'BLE MUNSIFF'S COURT, PATHANAMTHITTA. P3 : COPY OF THE IA NO.1778/13 IIN RCP NO.7/11 BEFORE THE HON'BLE MUNSIFF'S COURT, PATHANAMTHITTA. P4 : COPY OF THE IA NO.1779/13 IN RCP NO.7/11 BEFORE THE HON'BLE MUNSIFF'S COURT, PATHANAMTHITTA. P5 : COPY OF THE DTD.20.11.13 PASSED BY THE HON'BLE MUNSIFF'S COURT, PATHANAMTHITTA. RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R1(a) TRUE COPY OF OBJECTION FILED BY THE PETITIONERS FOR IA 1518/2013 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA. EXT.R1(b) TRUE COPY OF THE OBJECTION TO IA 1778/2013 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA. EXT.R1(c) TRUE COPY OF THE OBJECTION TO IA 1779/13 BEFORE THE MUNSIFF'S COURT, PATHANAMTHITTA. ## **T.R. RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **-----------------------------------------------------** O.P.(RC) No.4216 of 2013 **-------------------------------------------------------** Dated this the 22[nd] day of January, 2014 ## **J U D G M E N T** ## _**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 principles laid down by the Hon'ble Apex Court in _**J. Samuel and others v. Gattu Mahesh and others** [(2012) 2 SCC 300]_ also, the application cannot be entertained. 2. We heard the learned counsel appearing for the petitioners Sri.Babu Paul and the learned counsel appearing for O.P(RC) 4216 of 2013 -:2:- 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 v. Gattu Mahesh and others** [(2012) 2 SCC 300],_ 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 ## O.P(RC) 4216 of 2013 -:3:- 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 v. Gattu Mahesh and others** [(2012) 2 SCC 300]_ has explained the significance of 'due diligence' as 'test to determine whether court's discretion to allow amendment should be exercised or not'. 3. 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 v. Gupta Building** [2013 (1) KLT Suppl. 60(SC)]._ 4. We have perused the documents. The petitioners ## O.P(RC) 4216 of 2013 -:4:- have filed eviction petition under Section 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. 5. 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. 6. We have considered the rival submissions. The crucial question tobe considered is whether the landlords O.P(RC) 4216 of 2013 -:5:- 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 v. Gattu Mahesh and others** [(2012) 2 SCC 300]_ 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 O.P(RC) 4216 of 2013 -:6:- 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 v. Gattu Mahesh and others** [(2012) 2 SCC 300]_ and _**Bagai Construction v. Gupta Building** [2013 (1) KLT Suppl. 60(SC)]_ , the same are distinguishable on the facts of this case. 7. 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. 8. 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. 9. In the light of the above, we allow this original O.P(RC) 4216 of 2013 -:7:- 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. 10. 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. ## **Sd/- T.R. RAMACHANDRAN NAIR, JUDGE** ## **Sd/- B. KEMAL PASHA, JUDGE** ul/- [True copy] _P.S. to Judge_