V. Gowri vs Gandhi and another

S. Rajeswaran, J.—The above Civil Revision Petitions are filed against the Common Judgment dated 12.11.2007 passed by the Rent

Control Appellate Authority (VII Judge, Court of Small Causes), Chennai in R.C.A. Nos. 46 and 47 of 2001, confirming the dismissal order

dated 24.12.1998 in M.P. Nos. 610 & 611 of 1998 in R.C.O.P. Nos. 1339 and 1340 of 1997 on the file of the Rent Controller (XIII Judge,

Court of Small Causes) at Chennai. The petitioner/Landlady in R.C.O.P. No. 1340 of 1997 and R.C.O.P. No. 1339 of 1997 is the revision

petitioner before this Court.

R.C.O.P. No. 1339 of 1997 has been filed by the revision petitioner/landlady u/s 10(2)(ii)(a) and 10(2)(i) of the Tamil Nadu Buildings (Lease

and Rent Control) Act 1960, for passing an order of eviction, directing the respondents in that Petition to quit and deliver vacant possession of the

shop bearing No. 77/1, Redhills Road, Villivakkam, Chennai 49. The case of the petitioner/Landlady in R.C.O.P. No. 1339 of 1997 is that the

first respondent/tenant in that Petition vacated the premises in January 1995 and sublet the portion to the second respondent in that petition for

valuable consideration. It was also alleged that since 1995 no rent has been paid by the first respondent and hence R.C.O.P. No. 1339 of 1997

has been filed for eviction on the grounds of subletting and wilfull default in the payment of rents.

The very same landlady filed R.C.O.P. No. 1340 of 1997 against one John Kennedy (who is the second respondent in R.C.O.P. No. 1339 of

1997 u/s 10(2)(i) of the Tamilnadu Building and Rent Control Act 1960 for evicting him and delivering the vacant possession of the shop

measuring 10 x 14 at No. 77/2 Redhills Road, Villivakkam, Chennai-49. The case of the petitioner/Landlady in R.C.O.P. No. 1340 of 1997 is

that the respondent in that Petition has not paid rent from October 1995 to March 1997 resulting in arrears of rent of Rs. 6,300/-. Counter

statements have been filed in both the R.C.O.Ps. and the Petitions are being contested.

When both the Petitions are pending, the petitioner/Landlady filed M.P. No. 610 of 1998 in R.C.O.P. No. 1339 of 1997 and M.P. No. 611 of

1998 in R.C.O.P. No. 1340 of 1997. In M.P. No. 610 of 1998, it was stated by the petitioner/Landlady that the measurement of the shop is 10 x

14 and the total area of the entire property is 2160 sq. ft. Originally, there were thatched huts, which were under the occupation of her mother-in-

law and four other tenants. The two shops with RCC Roof were constructed only in the year 1985. Even after the construction of the shops, her

mother-in-law and the other tenants were living there. Later on, the other tenants and her mother-in-law vacated the portion in occupation in 1994.

Taking advantage of the fact that the petitioner/Landlady was not residing there, the remaining portion which was not let out, was encroached upon

by the tenant and he is falsely claiming that he is the tenant of the entire property. According to her, he is a tenant in respect of the shop only. As

these particulars were not given in the R.C.O.P., they have to be incorporated in the main Petition by way of an amendment. Accordingly, she

wanted to add a paragraph in the main Petition giving the above said particulars. It is also her further case that the property is situated at No. 77,

Redhills Road, Villivakkam, Chennai-49 and the subdivisions were only given by her as 77/1 and 77/2. In fact, there is no such two numbers and

therefore, the number 77/1 is to be deleted from the schedule and it is to be replaced as No. 77 only.

A similar Amendment Petition was filed by the petitioner/Landlady in M.P. No. 611 of 1998 in R.C.O.P. No. 1340 of 1997. Here also, she

wanted to narrate the entire particulars and to delete the No. 77/2 in the schedule and to replace it with just No. 77. Both the Petitions were

resisted by filing counter affidavits.

The Rent Controller by order dated 24.12.1998 dismissed both the Petitions on the ground that the petitioner/Landlady tried to bring in new set

of facts and therefore, the same could not be permitted. Aggrieved by the same, the petitioner/Landlady filed two Appeals in R.C.A. No. 46 and

47 of 2001 before the Rent Control Appellate Authority. The Rent Control Appellate Authority by a common Judgment dated 12.11.2007

dismissed both the Appeals and aggrieved by the same, the petitioner/Landlady filed the above Revision Petitions u/s 25 of the Tamil Nadu

Buildings (Lease and Rent Control) Act 1960.

Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent-2 in C.R.P. (PD) No. 482 of 2008 and the

respondent in C.R.P. (PD) No. 481 of 2008. I have also perused the documents and judgments filed in support of their submissions.

The learned counsel for the petitioner/Landlady submits that both the authorities adopted a hyper-technical approach and dismissed the

Amendment Petitions without realising that the proposed amendments do not introduce any new case or change the cause of action. According to

the learned counsel for the petitioner, what was required by the Landlady by filing the Amendment Petitions is to explain the matter clearly to avoid

any ambiguity and also to prevent the tenant from making misleading statements. He relied on the decision of this Court reported in G. Jayapandian

Vs. P.C. Manickam and Another, to submit that to decide the real matter in controversy, the parties are permitted to amend the pleadings and the

Rent Controller has ample power to allow the amendment of the Petitions.

Per contra, the learned counsel for the respondent submits that the amendments sought for by the petitioner/Landlady are in the nature of

introducing a new cause of action which will affect the nature and character of the Petition. Hence, according to him, both the authorities have

correctly decided the issue by dismissing the Petitions and the Appeals. He relied on the following decisions in support of his submissions.

K. Manickam Vs. R. Palanisamy,

Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam Vs. Udumalpet Samayapuram Ayira Vaisya Sangam,

3 S. Venkatachalam Vs. M. Sambamurthy,

Pachammal and Others Vs. Rathinasamy and Others,

Lalitha and Others Vs. K. Shanthi

I have considered the rival submissions carefully with regard to facts and citations.

A perusal of records will show that the petitioner/Landlady wanted to explain certain matter by bringing in a new paragraph and also to change

the Door Number given in the Petition schedule properties. On the fact of it, they do not seem to be objectionable. Further, strict rules of pleadings

are not necessary in Rent Control Petitions which are decided summarily by the Authorities constituted under the Act. This Court, has already in G.

Jayapandian Vs. P.C. Manickam and Another, , held that the Rent Controller has power to allow amendment of the Eviction Petition to decide the

real matter in controversy. The following passage in the above judgment is relevant and the same is extracted below:

It is in this connection, we have to consider the purpose of the amendment. An amendment to a pleading is necessitated to avoid multiplicity of

litigation and also to explain the vagueness, if any, in the pleadings. To decide the real matter in controversy, parties are permitted to amend the

pleadings. In certain circumstances, the existing pleadings becomes insufficient or inappropriate due to subsequent events. If amendment is refused

and if the party is directed to file another Suit or proceeding, the very purpose of coming to Court will be defeated. We must understand that both

Courts and Tribunals are intended to administer justice.

In view of the decisions cited above, the contention of the learned counsel for the petitioner cannot be accepted.

When the Act or Rule confers certain powers on the Authorities concerned, it does not follow that those are the only powers that could be

exercised by them. It cannot be expected that the powers exercised by the Tribunals should always be enumerated. All future contingencies cannot

be exhausted while drafting a statute or Rule. It is in that view, we have to consider whether a Tribunal can exercise a power which is not

specifically excluded. When a Tribunal is more or less a Court and is discharging judicial functions, even though it is a creature of a Statute, unless

it is specifically prohibited, we have to presume that the Tribunal also will have the same powers as a Court, and it can discharge those functions as

well.

This decision was followed by another learned Judge of this Court reported in S. Venkatachalam Vs. M. Sambamurthy, wherein it was held

that the Rent Controller has power to allow amendment of the Petition. So, this aspect has been well settled now that the Rent Controller has got

power and jurisdiction to allow Amendment Petitions filed in Rent Control proceedings.

So what is to be considered in the above Revision Petitions is whether the authorities have correctly dismissed the Amendment Petitions filed

by the petitioner/Landlady?

In Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam, Nerinchipetti, Bhavani Taluk, Erode District v. Udumalpet

Samayapuram Ayira Vaisya Sangam, rep. by its President, No. 5, Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam Vs.

Udumalpet Samayapuram Ayira Vaisya Sangam, a learned Judge of this Court set forth the following guidelines while dealing with an Application

under Order 6, Rule 17, C.P.C. seeking for amendment:

A perusal of the above judgments could set forth the following guidelines, while dealing with an Application under Order 6, Rule 17, C.P.C.,

seeking for amendment of the prayer:

(1) The general Rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a Suit on new

case or cause of action is barred.

(2) it is well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts

to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of

limitation.

(3) The object of Courts and rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. Further, a party is

strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already

in the pleading sought to be amended.

(4) Even though the amendment sought to be made is subject to law of limitation, if the cause of action is not going to be changed, it is open the

affected party to take necessary steps for amendment of the Plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the

prejudice of any right acquired by any party of lapse of time.

(5) For merely allowing an Application for amendment, there is no adjudication of the merits of the amended pleas introduced that the merits of the

amended pleas have go to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer to the same and that

certainly the additional pleadings may take in also the plea of bar of limitation.

(6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the

amendment being ordered. The amendment Application should be allowed, since it is not going to change the nature of the plea nor does it affect

the rights of the defendants. The defendants are entitled to put forward all their contentions even after the amendment is allowed.

(7) The question of limitation should not have been decided by the Court below at present, since it is a question to be decided on merits with oral

and documentary evidence. At present, we are concerned with the Amendment Application, which is governed only under Order 6, Rule 17,

C.P.C. The Amendment Application should be allowed, if it is not going to change the nature of Suit nor does it affect the rights of the defendants.

(8) the basic structure of the Suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the

plaintiff. In the opinion of the Trial Court, it is open to the plaintiff to file a fresh Suit and that is one of the reasons, which has prevailed with the

Trial Court. We fail to understand, if it is permissible for the plaintiff to file an independent Suit, why the same relief, which could be prayed for in a

new Suit, cannot be permitted to be incorporated in the pending Suit.

(9) Where a Suit filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the Suit automatically, but to allow the

plaintiff to make necessary amendment, if he seeks to do so.

(10) Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after

conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of

meeting the case of the plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be

answered by reference to the facts and circumstances of each individual case.

(11) The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation

an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not

allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances. If the granting

of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed.

(12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an

admitted fact. While the defendants pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the plaintiffs in

this case ought to have been within three years when the right to sue first accrued, the plaintiffs contend that the same does not fall under the said

entry but falls under Entry 64 or 65 of the said Schedule to the Limitation Act, which provides for a limitation of 12 years, therefore, according to

them, the prayer for declaration of title is not barred by limitation. In such a situation, where there is a dispute as to the bar of limitation, the

amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea of limitation,

being disputed, could be made a subject-matter of the issue, after allowing the amendment prayed for.

In K. Manickam Vs. R. Palanisamy, , a learned Judge of this Court, on the basis of the facts and circumstances of that case, held that when the

plaintiff in that Suit elected to treat the Suit agreement dated 01.02.1983 as at an end resulting in the discharge of both the parties from the

obligations, it is not open to him to seek by way of an amendment the relief of a specific performance of the same agreement.

In Pachammal and Others Vs. Rathinasamy and Others, , this Court held that an Amendment Application cannot be allowed if it is

unsupported by any material particulars, belatedly filed and lacking any bona fide.

In Lalitha and Others Vs. K. Shanthi a learned Judge of this Court extracted the principles to be considered in an Application filed under

Order 6, Rule 17, C.P.C. which reads as under:

I am afraid that such a conclusion of the Court below while dealing with an Application under Order 6, Rule 17, C.P.C. can be sustained. The

relevant principles while dealing with the Applications filed under Order 6, Rule 17, C.P.C. Have been repeatedly set out and in as much as, His

Lordship Mr. Justice A.S. Venkatachalamoorthy has elaborately dealt with the said question in the judgment referred to earlier, namely, in the one

reported in Palaniammal Vs. V.K. Ramanathan and Others wherein, the learned Judge has taken pains to refer to all the earlier case laws before

summing up the principles to be considered in an Application filed under Order 6, Rule 17, C.P.C., I feel that it would be suffice if those principles

are extracted for our present purpose.

To sum up the legal position:

(1) The power to allow amendment is wide and hence the Court should not adopt hyper technical approach but on the other hand liberal approach

should be the general rule particularly in cases where the other side can be compensated with costs.

(2) The general rule is that the party is not allowed to set up new case or new cause of action.

(3) Technicalities of law should not be permitted to hamper the administration of justice between the parties and amendments are allowed in the

pleadings to avoid multiplicity of litigation.

(4) Courts cannot go into the truth or falsity of the proposed amendments sought for at the time of considering the Application for amendment.

(5) All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the Suit provided the

proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.

(6) All reliefs ancillary to main relief and reliefs which are in the nature of additional reliefs should be allowed as general rule.

(7) Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed but however, the party who is

put to inconvenience should be suitably paid. The Court has to only see that the error is not incapable of being rectified so long as remedial steps

do not unjustifiably injure rights accrued.

(8) The delay in filing Petition for amendment should be properly compensated by cost and the error or mistake, if not fraudulent, should not be

made a ground for rejecting the application for amendment of plaint or written statement.

In the light of the above judgments and in the light of the facts and circumstances of the case, if these Revision Petitions are considered, I am of

the considered view that both the authorities below have wrongly dismissed the Amendment Petition filed by the petitioner/Landlady.

First of all, strict rule of pleadings as applicable to a Civil Suit will not apply to a Petition filed under the Rent Control Act. Further, what was

sought for by the petitioner/Landlady by way of an Amendment Petition is to add a para by way of explanation of certain facts and to change the

door number of the suit property. If that being so, it cannot be held that these amendments, if allowed, would bring in a new cause of action and it

would also change the nature and character of the Eviction Petitions. The merits and demerits of the amendments need not be gone into at the time

of considering the Amendment Application. Further, there is also an opportunity which is available to other side to question the new pleadings by

filing additional counter. When the petitioner/Landlady comes and pleads that some particulars have been omitted to be included in the Petition and

she wants to add those particulars, the authorities should adopt a liberal approach and permit the Landlady to include those particulars to decide

the matter effectively.

Hence, I am inclined to interfere with the orders passed by the Authorities below and accordingly, I set aside the common Judgment dated

12.11.2007 passed by the Rent Control Appellate Authority in R.C.A. No. 46 and 47 of 2001. Consequently, Amendment Petitions filed by the

petitioner/Landlady in M.P. No. 610 of 1998 in R.C.O.P. No. 1339 of 1997 and in M.P. No. 611 of 1998 in R.C.O.P. No. 1340 of 1998 are

allowed as prayed for.

In the result, both the Civil Revision Petitions No. 481 and 482 of 2008 are allowed. No costs. Connected Miscellaneous Petitions are closed.

Considering the fact that the R.C.O.Ps. were filed in the year 1997, I direct the Rent Controller (XIII Judge, Court of Small Causes), Chennai, to

show utmost urgency to dispose of both the R.C.O.Ps. on merits and in accordance with law within four weeks from the date of receipt of a copy

of this orders.