Madhusoodhanan vs Haridas
2023 Latest Caselaw 10166 Ker

        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 21ST 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

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

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-in-

interest 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

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

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.

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

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