Indian Kanoon - Search engine for Indian Law

Punjab-Haryana High Court

Murari Lal Kalra vs Parkash Chand on 9 December, 2014

Author: G.S.Sandhawalia

Bench: G.S.Sandhawalia

            CR No.8371 of 2014                                                        -1-


               IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

                                                                    CR No.8371 of 2014
                                                                    Date of decision:09.12.2014

            Murari Lal Kalra
                                                                                       ....Petitioner
                                                       Versus
            Parkash Chand
                                                                                   ......Respondent

            CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA

            Present:           Mr.Vishal Gupta, Advocate, for the petitioner.

                                                 *****

            G.S.Sandhawalia J.(Oral)

Challenge in the present revision petition, filed by the petitioner- plaintiff, under Article 227 of the Constitution of India, is to the order dated 07.10.2014 (Annexure P11), whereby the application, filed under Order 6 Rule 17 CPC by the landlord for amendment of the rent petition has been allowed.

Vide the amendment application, the landlord sought to incorporate the factum that the tenant owns another shop which is lying closed since long whereas the landlord was doing the business of readymade garments in a rented shop. He wanted to repair/replace the wooden batons of the roof which was also leaking and the shop was unfit and unsafe for human habitation. The application has been allowed by the Rent Controller by placing reliance upon the binding precedent of the Apex Court in Abdul Rehman & others Vs. Mohd. Ruldu & others 2012 (4) CCC 584 (SC). The Trial Court came to the conclusion that for the purpose of determining the real question in controversy, amendment should be allowed and the basic nature of the eviction petition cannot be changed and complete justice is to be done between the parties and costs of `2000/- have been imposed upon the landlord, which had to be paid to the tenant, in view of the application for amendment being allowed.

2014.12.16 10:05 I attest to the accuracy and integrity of this document CR No.8371 of 2014 -2-

Counsel for the petitioner has vehemently argued that the ground which is now sought to be amended was in the knowledge of the landlord and he has pointed out that the Local Commissioner was appointed vide order dated 30.08.2010 who submitted his report that the landlord has sought to incorporate as a new ground of amendment. It is submitted that once the evidence stood closed and the trial was at the fag end, the amendment should not have been allowed. It is submitted that in such circumstances, the judgment of the Apex Court in Abdul Rehman's case (supra) was not applicable since the due diligence aspect was missing.

After hearing counsel for the petitioner, this Court is of the opinion that there is no merit in the present revision petition. Firstly, the present revision petition has been filed under Article 227 of the Constitution of India and therefore, is not maintainable. The Apex Court in Shalini Shyam Shetty & another Vs. Rajendra Shankar Patil 2010 (8) SCC 329 held that once there is an alternative remedy under the statute, then Article 227 cannot be invoked on the asking especially when there was provision of filing revision under Section 15 of the East Punjab Urban Rent Restriction Act, 1949, before the competent Court. In such circumstances, the present revision petition itself is not maintainable. The relevant paras read as under:

"62. On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 SAILESH RANJAN 2014.12.16 10:05 and have been discussed above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court."

Even otherwise, it is settled principle that general principles of CPC apply in rent cases and not the strict principles of Order 6 Rule 17 CPC will apply, as such. The landlord is only seeking to bring on record the fact that the tenant is also owner of another property and that the shop in question is also liable to be vacated on the ground that it is unsafe and unfit and then, the order vide which the amendment has been allowed is not liable to be interfered with. It is the primary duty of the Court to decide the real dispute between the parties. The issue is of evicting the tenant and only an additional ground has been taken by virtue of the amendment and a contradictory stand is not being taken.

In Rajesh Kumar Aggarwal & others Vs. K.K.Modi & others 2006 (4) SCC 385, the Apex Court held that it was mandatory for the Court to go to the real question of controversy between the parties, in the larger interest of justice and procedural obstacles should not come in the way of dispensation of justice. In such circumstances, if the landlord can file a second petition for eviction on the same ground of unfit and unsafe, which remedy, admittedly, is available to him, if the pleadings are allowed to be amended, no prejudice can be caused to the petitioner-tenant, who has already been granted costs of `2000/- and, as such, has been duly compensated. Even otherwise, he will not be prejudiced in any manner since the Rent Controller has to decide the issue on merits. It is also settled principle that the Courts are not to go into the merits of the case at the initial stage of allowing the amendment, which is best left to be decided at the SAILESH RANJAN 2014.12.16 10:05 I attest to the accuracy and integrity of this document CR No.8371 of 2014 -4- final time.

Accordingly, finding no merit in the present revision petition, the same is, hereby dismissed.

            09.12.2014                                                  (G.S.SANDHAWALIA)
            sailesh                                                            JUDGE




SAILESH RANJAN
2014.12.16 10:05
I attest to the accuracy and
integrity of this document