Punjab-Haryana High Court
Gurnam Singh vs Roshan Lal on 11 November, 2008
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.1760 of 2008
Date of decision: 11th November, 2008
Gurnam Singh
... Petitioner
Versus
Roshan Lal
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. J.S. Verka, Advocate for the petitioner.
Mr. Sukhbir Singh, Advocate for the respondent.
KANWALJIT SINGH AHLUWALIA, J.
Gurnam Singh petitioner has filed the present revision petition with a prayer that impugned order dated 05.02.2008 passed by the Rent Controller, Baba Bakala, Amritsar, whereby the application to amend the ejectment application has been refused, be set aside and amendment as prayed for be allowed.
Gurnam Singh petitioner-landlord instituted an application for ejectment of tenant under Section 13-A of the Rent Restriction Act (III), 1949 (hereinafter referred to as, 'the Act'). The demised premises was a shop. The shop was let out by Piara Singh, father of the petitioner. After the death of Piara Singh, tenant has been paying the rent to the petitioner. Therefore, petitioner had stepped into the shoes of his father, Piara Singh, as landlord.
Petitioner retired as Chief Engineer, Public Health from the State of Punjab on 31st March, 2004. Application seeking ejectment of the tenant was filed on the ground that premises are required for the bonafide personal use and occupation, for establishing hospital and laboratory for Civil Revision No.1760 of 2008 2 his unemployed son Dr.Amrinderpal Singh, who after having passed his M.B.B.S. degree, has further obtained a diploma in Radio Diagnostics.
Admittedly, the ejectment application was filed under Section 13-A of the Act and Section 13-A is not applicable to commercial buildings. Therefore, another application was filed seeking amendment in the petition, with a prayer that petition be tried under Section 13 of the Act instead of Section 13-A of the Act. It was stated in the application that since an objection has been raised by the tenant that Section 13-A of the Act is not applicable to the commercial buildings and the petition is not legally maintainable, therefore, to overcome this objection, amendment has been sought. It was further prayed that the hypertechnicalities should not stand in the way and law of amendment being very liberal with an object to avoid multiplicity of proceedings, in order to reduce litigation, prayer of amendment be granted.
A perusal of the impugned order shows that reply to the application for amendment was filed by the tenant before the Rent Controller, in which preliminary objection regarding maintainability, estoppel, resjudicata were raised. It was stated therein that an objection was raised in the written statement that ejectment application under Section 13-A of the Act is not maintainable, as Section 13-A is not attracted in case of commercial property. It was stated that landlord remained silent for more than two years and when case has reached at the final stage, an application has been filed.
The Rent Controller declined the application for amendment and vide impugned order held that Gurnam Singh landlord had filed the application under Section 13-A of the Act from the demised premises, which is a shop and application was filed by the respondent-tenant seeking permission to contest the petition. While allowing the application to contest, it was observed by the Rent Controller that specified landlord is entitled to Civil Revision No.1760 of 2008 3 the possession of residential or scheduled building for his own occupation. It is stated that after the passing of the order granting permission to contest on 20th September, 2005, tenant filed written statement, in which an objection was taken that ejectment application under Section 13-A of the Act is not maintainable.
Issues were framed on 8th November, 2005. Landlord closed his evidence on 13th March, 2007. Thereafter, tenant closed his evidence on 18th September, 2007, except for tendering of documents. The documents were tendered on 6th November, 2007. Then case was fixed for rebuttal and arguments and the application for amendment was filed on 15th January, 2008. Counsel for the respondent has stated that since evidence of the parties has been concluded, by allowing the amendment, it will amount to de-novo trial. It has been further urged that in the present case, trial has commenced.
A perusal of the impugned order further reveals that during course of arguments, petitioner-landlord has placed reliance upon "Rulia Ram Sharma v. Amar Pal Singh Bhalla and others", 1991 (1) Rent Control Reporter 280.
The Rent Controller distinguished the judgment of Rulia Ram (supra) on the ground that as in the case of Rulia Ram, he was not held to be specified landlord as he had retired from service when he was not owner of the demised premises.
Counsel appearing for the respondent has laid much emphasis on the fact that in 2002, order 6 rule 17 of the Code of Civil Procedure has been amended and a proviso has been added that no application for amendment shall be allowed after the trial has commenced, unless court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. Civil Revision No.1760 of 2008 4
There is no doubt in the contention made by the counsel for the respondent. But it has been held in various judgments that technical rules of procedure of Civil Procedure Code are not applicable to proceedings under the Rent Act and Rent Controller can device his own procedure for the just adjudication of the case. It has been further held that in rent proceedings, Rent Controller, to find out the truth, can device appropriate procedure. Rent Controller cannot be held bound by the provisions of the Code of Civil Procedure. Therefore, provisions of Code of Civil Procedure would not apply ipso-facto on the Rent Controller. Reference can be made to Brij Lal v. Yash Pal, 1985(1) RCR (Rent) 551; Lal Chand and others v. Kishan Murari Goel and others, 1995(1) RCR 274 and Harcharan Singh v. Ashok Kumar, 2003(1) RCR (Rent) 696. It is now well settled that Rent Controller is not a Court. He is an officer persona designata, specially authorized to adjudicate upon disputes relating to urban property concerning ejectment and determination of fair rent of urban properties. Reference can be made to Inderjit Pal v. Shankar, 1985(1) Rent Control Reporter 508. Therefore, the Court of Controller is not, for all practicable purposes, a Court, nor the Code of Civil Procedure in entirety applies with all vigour and strength.
It was held in "Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil", AIR 1957 SUPREME COURT 363, as under:
"All amendments ought to be allowed which satisfy the two Conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ...but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be Civil Revision No.1760 of 2008 5 compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"
In "Croper v. Smith", 1884 (29) Ch D 700, it was stated by Bowen, L.J. as under:
"I think it is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights .... I know of no kind of error or mistake which if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist of the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace ... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy; it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case is a matter of right."
Guided by these parameters, the prayer of the petitioner to amend the petition can be allowed.
The courts have further held that there is one panacea, which heals every sour in litigation and that is cost. Admittedly, in the present case, there was a mistake and error on the part of the landlord. For correction of this mistake, landlord can be burdened with the cost. Since from the very beginning, it has been the case of the landlord that the shop Civil Revision No.1760 of 2008 6 in question is required for personal necessity to settle his son, for establishing his hospital and laboratory and he has led evidence on this score, no prejudice therefore, will be caused to the tenant.
Accordingly, the present revision petition is accepted, impugned order is set aside and application filed by the landlord for the amendment is allowed. He is permitted to amend the petition and amended petition (Annexure P-3) is allowed to be taken on record. However, since due to the mistake and error on the part of the landlord, tenants have suffered, to balance the equities, a cost of Rs.10,000/- is awarded in favour of the tenant. On deposit of the cost, the same shall be disbursed to the tenant. Tenant will have adequate opportunity to file reply to the amended petition and to lead evidence in support of the pleadings made in the written statement to be filed to the amended petition.
Accordingly, the present revision petition is allowed in above terms.
[KANWALJIT SINGH AHLUWALIA] JUDGE November 11, 2008.
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