Madras High Court
J. Madan Lal, Proprietor Milan Jothi ... vs P.K.M.S. Jailani Beevi on 21 September, 1998
Equivalent citations: 1998(2)CTC727
ORDER
1. The revision petitioner is the tenant in R.C.O.P.No.987 of 1993 on the file of the Rent Controller, Madras and the respondent in R.C.A.No.284 of 1995 on the file of the Appellate Authority, Madras. The respondent is the landlord before the Rent Controller in that proceedings and the appellant before the Appellate Authority; In this order, the parties to the revision will hereinafter be called as the landlord and the tenant. The landlord filed an application before Rent Controller seeking eviction of the tenant on the ground of owner's occupation of a non-residential building falling under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter called as the Act. The claim of the landlord was hotly contested by the tenant and ultimately the Rent Controller was inclined to dismiss the landlord's petition for eviction. It appears that the learned Rent Controller dismissed the petition on the ground that the petition as one falling under Section 10(3)(a)(iii) of the Act is not maintainable and instead the eviction should have been sought for on the ground falling under section 10(3)(c) of the Act. This order of dismissal is challenged by the landlord and it is now pending on the file of the Appellate Authority as R.C.A.No.284 of 1995. In the appeal the landlord filed M.P.No.63 of 1998 to amend the pleadings by adding Section 10(3)(c) alongside Section 10(3)(a)(iii) of the Act. That petition was ordered on merits and the correctness of that order is questioned in this revision before this court by the tenant.
2. I heard Mr. N.S. Varadachari, learned counsel appearing for the petitioner and Mr. N. Krishna Mitra, learned counsel appearing for the respondent. Mr. N.S. Varadachari, learned counsel appearing for the petitioner, contended that though the Appellate Authority may have the power to order any amendment, yet the amendment ordered in this case on the facts available is wholly unwarranted. In other words, conceding the power of the Appellate Authority to order amendment, it is argued that the Appellate Authority had completely erred in law and on facts in ordering the amendment especially when the landlord was not diligent enough to take appropriate steps to have the amendment brought about when the case was pending before the Rent Controller. In other words, the argument of the learned counsel is, by allowing the amendment as prayed for, the Appellate Authority is invited to consider an additional ground of eviction for which there is neither pleading nor proof and therefore the amendment cannot be allowed. The learned counsel brought to my notice the judgment of a learned single judge of this Court in Munisamy Naidu v. Kasim Khan, 1971 (II) M.L.I. 379, which according to him is similar on facts as available in this case and contended that in that decided case, an amendment sought for, as in the case on hand, was rejected. Mr. N. Krishna Mitra, learned counsel appearing for the respondent, argued that the Rent Controller was inclined to dismiss the petition for eviction on a technical ground namely that the petition ought to have been filed seeking eviction on the ground of additional accommodation falling under Section 10(3)(c) of the Act! The learned counsel elaborated the same saying that assuming that the provision of law had been given incorrectly as one falling under Section 10(3)(a)(iii) of the Act, yet there is no legal bar for the Rent Controller to grant the relief under Section 10(3)(c) of the Act if the materials brought out on record make out a case for such a contingency as well. The learned counsel for the respondent also contended that the Rent Controller as well as the Appellate Authority, are now considered as 'Courts' which was not the previous trend of the line of thinking of this Court. Once if it is accepted that the Rent Controller as well as the Appellate Authority are 'Courts', then there would be no difficulty at all in upholding the order of the Appellate Authority allowing the amendment since ordering amendment is a power which can be exercised by the Court, at any stage of the proceedings. The learned counsel for the respondent also contended that though on facts, the decided case viz. Munisamy Naidu v. Kasim Khan, 1971 (II) M.L.J. 379 brought to the notice of this court by the learned counsel for the petitioner is similar on facts as well as similar in the nature of relief asked for, yet that decision came to be rendered at a point of time when the Rent Controller and the Appellate Authority were not treated as 'Courts' but were only treated as persona designata. In view of the change in the line of thinking in the years that passed holding that the Rent Controller as well as the Appellate Authority are 'Courts', it cannot be said that the decided case brought to the notice of this court by the learned counsel for the petitioner can still be said to be the law holding the field. Therefore according to the learned counsel for the respondent, this court may decide the issue in the context of the various decisions not only of this court but also of the other courts holding the Rent Controller and the Appellate Authority as 'Courts'.
3. In the light of the arguments advanced by the learned counsel on either side, I perused the order under challenge with care and caution. Even at the outset, I make it very clear that I have decided not to enter into the area of controversy between the parties namely whether the petition filed under Section 10(3)(a)(iii) of the Act is maintainable or only a petition under Section 10(3)(c) of the Act is maintainable as found by the Rent Controller since the entire issue is at large before the Appellate Authority. I am also informed that the Appellate Authority had heard the arguments at length and after hearing the arguments when the Appellate Authority reserved orders, this application for amendment came to be filed. Likewise, I am also not deciding the question whether the Court should be aided only by the provision of law quoted in the petition filed before it or could it apply its mind to the facts made available by way of pleadings and evidence and choose to grant eviction on a ground not put forward in the petition. Under the circumstances I am focussing my attention only to the limited question whether the order of amendment passed by the Appellate Authority can be sustained or not. It is needless to state that till a few years before, the Rent Controller as well as the Appellate Authority were only considered as persona designata till it came to be authoritatively decided by a Division Bench of this Court in 1985 (95) L.W 552 that the Appellate Authority would be a court entitled to receive and dispose of an application filed under Section 5 of the Limitation Act before it. Justice Rengasamy, as his Lordship then was, held in a judgment in B.C.S. Enterprises v. Ashok Kumar Lunia, that the Rent Controller is a court and has inherent powers to order amendment of pleadings. Justice Raju, as his Lordship then was, in a judgment in Kannaiyan v. Subramania Pathar, followed the judgment of Justice Rengasamy referred to above and held that the Rent Controller is a Court. The learned judge also said as follows:
"Even de hors the said line of approach, I am of the view that a Forum of Authority, which has been conferred with jurisdiction to entertain a lise for adjudication of a dispute involving a decision of the rights parties before it, must be considered to have all the essential and necessary powers to effectively discharge its duties".
A learned judge of this Court in a judgment in G. Jayapandian v. P.C. Manickam and another, 1996 (I) M.L.J. 350 held as follows:
"When an Act or Rule confer 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 (like the Rent Controller) 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 State, 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. 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 pleading becomes insufficient or inappropriate due to subsequent events. If amendment is refused and if the party is directed to file another suit or proceedings, the very purpose of coming to Court will be defeated."
Justice Abdul Hadi, as his Lordship then was, in a judgment in Mohamed Gani v. Rajamani, 1996 (I) MLJ 364 held as follows:
"The settled law is that the Rent Controller is a Court and not a persona designata. The Rent Control Act of Tamil Nadu is silent about the power of the Rent Controller to allow amendment of petition for eviction. In the present case, the amendment is necessitated because of a subsequent event after the filing of the R.C.O.P. where the petitioner denied the title of the Respondent. Therefore the Court is of the view that even though Order 6 Rule 17, Civil Procedure Code as such is not applicable, the principle behind the same is certainly applicable and there is no point in driving the respondent landlord to another R.C.O.P. on the ground of denial of title. The main principle is, multiplicity of proceedings must be avoided unless the amendment sought for totally alters the character of the original action which is not, the case at all in the present case. It is quite clear to the Court that the Rent Controller has jurisdiction to make the abovesaid amendment".
The learned former Chief Justice of this Court also held in a judgment reported in Raja v. Mohamadabi, 1993 (2) LW 171 that the Rent Controller is a Court. Justice Abdul Hadi in another judgment reported in Ganapathy Ammal v. Chandaresan, 1994 (2) L.W 622 held as follows:
"So, the correct view, as held in the above referred to T.R. Kannan, v. K. Govindan, 1988 (1) L.W. 73 and Raju v. Mamohamadabi, 1993 (2) L.W. 171 is that the Rent Controller and the Appellate Authority are not persona designata but only a Court not only for the purpose of Section 5 of the Limitation Act but for other purposes as well".
4. Therefore there is no difficulty at all as far as this Court is concerned that the settled position of law as on date is that both the Rent Controller and the Appellate Authority are not persona designata but Courts. On this admitted position if the order under challenge is tested, I am of the opinion that it cannot be said that either the Appellate Authority has no power at all to order any amendment or even if it has a power the amendment sought for is not warranted. Mr. N. Krishna Mitra, learned counsel appearing for the respondent very firmly stated that except incorporating Section 10(3)(c) of the Act as an additional provision of law in the Rent Control Petition, his client is not going to seek for any consequential amendment of the pleadings on the basis of the amendment allowed. The learned counsel also stated that to that effect an affidavit sworn to by his client would be filed before this court concerned but yet it has not come on record. The learned counsel also stated that the materials available on record will enable the Appellate Authority to decide the requirement of the landlord either under Section 10(3)(a)(iii) of the Act or under Section 10(3)(c) of the Act. Though the judgment of this Court in Munisamy Naidu v. A. Kasim Khan, 1971 (II) M.L.J. 379 directly applies to the case on all force, with respect, I wish to point out that the said judgment has come to be pronounced at a time when there was a line of thinking by the Courts here that the Rent Controller is not a Court. The learned judge in that judgment stated as follows:
"6....I am of the view that the preponderance of judicial opinion is that the Code of Civil Procedure as such will not apply to the proceedings before the authorities constituted under the Madras Buildings (Lease and Rent Control) Act and that Order 6, Rule 17, cannot be invoked by them".
On facts the learned judge found in that case that though the landlord filed a petition for eviction on the ground of owner's occupation of a residential building, yet he adduced evidence as to his requirement for additional accommodation and that he did not seek to have the petition amended before the Rent Controller before he adduced evidence in relation to his requirement for additional accommodation. He sought the amendment only at the appellate stage. In that background of facts, the learned judge held as follows:
"7. Even assuming that the Rent Controller or the appellate authority had an inherent power to set right mistakes committed by inadvertance in a petition for eviction, the respondent in this case is not entitled to have the amendment sought for by him. The respondent has taken a chance of a decision in his favour before the Rent Controller and therefore he cannot seek an amendment of the petition after the Rent Controller has pointed out the mistake is now seeking eviction on the ground of additional accommodation.....".
5. Therefore the two circumstances which made the learned judge to deliver the judgment are very clear from that judgment itself. However Mr. N. Krishna Mitra, would contend that such a fact situation is not available in this case and in any event, the materials already available on record can bring the case of the landlord's requirement exclusively within the requirement of Section 10(3)(a)(iii) of the Act itself or in the alternative under Section 10(3)(c) of the Act. On a consideration of the facts available in this case, I am of the opinion that the amendment will definitely avoid multiplicity of proceedings and it is not going to prejudice the tenant in any way. Though a statement was made before this Court on behalf of the landlord by his learned counsel that the landlord is not going to seek for any consequential amendment in the pleadings or let in evidence, yet I am of the opinion that if the tenant wants an opportunity to meet the case of the landlord under Section 10(3)(c) of the Act, if he had not already applied his mind to that requirement and adduced evidence, then it is always open to the Appellate Authority to provide the necessary opportunity to him in a manner known to law in this regard. I find no merits in the revision and accordingly it is dismissed. Consequently, C.M.P.No.5860 of 1998 is dismissed. However there will be no order as to costs.