Andhra HC (Pre-Telangana)
Md. Kutubuddin vs Bhaikar Raja Mitraji Anand Kumar And ... on 16 July, 1999
Equivalent citations: 1999(6)ALD83, 2000(1)ALT83
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER
1. These five Civil Revision Petitions are directed against the orders in IA No.210 of 1995 in RCA No.108 of 1988, IA No.208 of 1995 in RCA No.107 of 1988, IA No.206 of 1995 in RCA No. 106 of 1988, IA No.212 of 1995 in RCA No. 109 of 1988 and IA No.214 of 1995 in RCA No.110 of 1988, on the file of senior civil Judge, Vizianagaram dated 20-1-1997 allowing the amendment of pleadings under Order VI, Rule 17 Code of Civil Procedure read with Rule 28 of Civil Rules of Practice. Since common questions of law and fact are involved they are being disposed of by a common order.
2. Respondent Nos.1 to 3, who are the landlords, filed eviction petitions against five different tenants, who are the revision petitioners herein, contending that they purchased the building consisting of several portions which are in occupation of the aforesaid tenants by a registered sale deed dated 7-12-1984 as members of Joint Hindu Family. The eviction petitions were dismissed by the Rent Controller, Vizianagaram. Hence, they preferred five appeals namely RCA Nos.108, 107, 106, 109 and 110 of 1988. The parlies will be referred to as appellants-landlords and tenants.
3. During the pendency of the appeals, one of them (appellant-landlord No.2) filed OS No.21 of 1994 for partition of all the joint Hindu family properties including the demised building and later they entered into a compromise under which that building fell to the share of two of the namely, appellants-landlord Nos.2 and 3. The suit was dismissed in terms of the compromise. It is their case that they became entitled to evict the tenants on the grounds already pleaded in the eviction petitions. Hence, they sought for amendment of pleadings in all the eviction petitions to the effect that (i) appellant-landlord No.1 ceased to have any right, title or interest in the demised building; (ii) that the remaining landlords are alone entitled to the said building and the same is also mutated in the municipal records in their names; (iii) that they have no other building in Vizianagaram municipality and hence they, they require not only for their residence, but also for their business and profession and for that they intimated the tenants that the building fell to their share in the partition and that they require the same bona fide for their personal use and occupation by means of registered Notice dated 5-10-1994 and (iv) that they are therefore entitled to evict the tenants. The affidavits of appellant-landlord No.2 are filed in support of the petitions to the above effect.
4. The revision petitioners-tenants resisted the petitions contending that the averment that the joint family purchased the building in question by registered sale deed dated 7-12-1984 is not admitted and that the averments that a suit OS No.21 of 1994 was filed for partition of all the joint family properties, including the demised building and that they partitioned the same and also that the said building fell to the share of landlords Nos.2 and 3 under a compromise dated 31-1-1995 are not binding upon them. It is added that any such suit or compromise is only a make believe transaction and it is a collusive one. It isalso averred that the alleged grounds mentioned in. the amendment petition give rise to a fresh cause of action and hence the same cannot be sought to be introduced by way of amendment. Then all the additional grounds sought to be introduced have been specifically denied and they are said to be factually incorrect.
5. The learned Subordinate Judge considered the rival contentions and held that Order VI, Rule 17 CPC is very wide and that the Court can allow amendment of pleadings even at this stage for the purpose of determining the real questions in controversy if it does not cause prejudice to the other side, following a judgment of this Court in M. Naresh Kumar Reddy v. N. Ramanamma, . It is further held that the proposed amendments do not change the nature of the petitions and that new relief is based on the same set of facts and hence the causes of action also do not change and therefore the amendments will not cause any prejudice to the revision petitioners. Consequently, the amendment petitions have been allowed in all the cases. Aggrieved by the above orders, the tenants filed these five civil revision petitions.
6. The effect of allowing the above amendments is that the following additional grounds are added:
That landlord Nos.2 and 3 herein alone are entitled to claim the said building which is mutated in the municipal records in their names; that they have no other building in Vizianagaram Municipality and that they not only require the same for their residence, but also for their business and profession.
7. Smt. M. Bhaskara Lakshmi, learned Counsel for the revision petitioner contended that the respondents herein sought for eviction originally on the ground of bona fide requirement of additionalaccommodation for all of them and whereas by the amendment sought for respondents 2 and 3 are setting up partition and allotment of the entire building to their shares and they want to seek eviction for their residential needs as well as business purposes and evidently there, is a change in the cause of action as well as its nature and such an amendment is not permissible. She also argued that a completely new cause is being introduced and hence the amendment is bad on that ground also.
8. On the other hand Sri P.R Prasad, learned Counsel for the respondents raising a preliminary objection as to the maintainability of the revision petitions, contended that a revision does not lie against an order of amendment which is only an interlocutory order and it does not fall within the purview of Section 22 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, for short the 'Act'. He added that the Rent Control Act is a complete Code. He cited catena of decisions in support of the above contention and they are reported in Ms. Jetha Bai and Sons, Cochin v. M/s. Sunderdas Rathenai, ; Nagabhushanam v. Raghavayya, ; Vishesh Kumar v. Shanti Prasad, ; Prithvichand Ramchand Sablok v. S.Y. Shinde, and Shaik Bandagi Saheb v. Shaik Nuruila Saheb, 1997 (1) ALD 566.
9. Replying to the above preliminary objection, Smt. Bhaskara Lakshmi contended that it is an elementary principle that every order passed by any Forum or authority has to be subjected to a second test either by way of appeal or revision and the order of amendment cannot be an exception. She has very ably projected her view point by citing the judgments in Chhagan lal v. Indore Municipality, and Slryamarajuv.U.V. Bhat, and argued that CPC is applicable to the proceedings under the Act; wherever theAct is silent and in such a case a CRP is maintainable under Section 115 CPC. She wondered as to how the respondents invoked the Order VI, Rule 17 CPC for seeking amendment and in another breath, they are now contending that Section 115 CPC is not applicable. She alternatively contended, relying upon the judgment in Murugesan v. C.P. Nataraja Mudaliar, 1988(1) RCJ 165, that a revision lies under Article 227 of the Constitution of India, if not under Section 115 CPC. In this context, she is relying upon the judgments in Mahadevo Savlaram Shelke v. Pune Municipal Corporation, and Shyam Sunder Agarwal and Co. v. Union , of India, .
10. Sri P.R. Prasad, learned Counsel for the respondents is heard once again and he vehemently argued that the so called new case is only a subsequent development and it has been held in Raj Kumar Sharma (died), per LRs., v. M/s. J. Satyanarayana and Sons, and Ramesh Kumar v. Kesho Ram, , that subsequent events can be based for granting the eviction. He also argued that it is open to the revision petitioner to challenge the amendment in (he main matter as and when it is filed in the High Court under Section 22 of the Act. In any event, he argued in unmistakable terms that a revision is not maintainable either under Section 115 CPC or under Section 22 of the Act. He referred to the following case-law in support of the above contention. S.B.H. Co-operative Bank Officers Welfare Association v. Government of A.P. (DB), ; Krishna Murthy v. Smt. Bondili Bhavani Bai, 1985 (2) ALT 421; Soni v. K. Nageswara Rao (DB), and Anil Kumar v. Rent Controller and Eviction Officer, 1992 (1) RCJ 60.
11. In view of the above contentions of both sides, the following points emerge for consideration:
I. Whether an order allowing amendment of pleadings by an appellate authority under the Act is revisable by High Court under Section 22 of the Act or under Section 115 CPC?
II. Whether the amendments introduce new case or new cause of action and if so what is the effect ?
It is well settled that the Rent Control Act is a special enactment, by which the statutory protection is granted to the tenant and at the same time the landlord is provided with a speedier remedy. Although Code of Civil Procedure is held to be applicable to the Rent Control Proceedings, it is hedged by certain limitations viz., 'where no adequate provision is made in the Act or in the Rules and that the provisions sought to be applied are not inconsistent with any express provisions of the Act or with the scheme and purpose of the enactment'. That is the view taken by a Division Bench of this Court in Hari Kishan Singh v. U. Narayana, 1969(2) APLJ 290 and the said view has been approved by a Full Bench of 5 Judges in P.N. Rao v. K. Radhakrishnama Charyulu, AIR 1978 SC 319. On the above basis Sri P.R. Prasad, learned Counsel for the landlords contends that Section 22 of the Act provides for a Revision to the High Court, but the scope of the said provision is limited to any order passed or proceeding taken by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20. It is argued that since the impugned order is neither an order passed in execution under Section 15 or an appeal under Section 20, it is not revisable under Section 22 of the Act. That is the preliminary objection raised by the learned Counsel for the landlords.
12. Section 22 of the Act is reproduced for ready reference:
"Revision:
(1) The High Court may, at any time, on the application of any aggrieved parry, call for and examine the records relating to any order passed or proceeding taken under this Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20, for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceeding, and may pass such order in reference thereto as it thinks fit.
(2) The costs of and incident to all proceedings, before the High Court under sub-section (1) shall be in its discretion."
A plain reading of the above provision shows that only two orders are contemplated therein. As rightly pointed out by Sri P.R. Prasad, an order passed or proceeding taken under the Act by the Controller in execution under Section 15 or by the appellate authority on appeal under Section 20 are those two orders. It is not in dispute that the impugned order was not passed under the Act, but it was passed under Order VI, Rule 17 CPC. It is evident to the naked eye that an order under Order VI, Rule 17 CPC is outside the scope of Section 22 of the Act. In that view of the matter, it is not necessary to burden this order with catena of decisions cited by Sri Prasad.
13. On the other hand Smt. Bhaskara Laxmi contended that every order passed by any Forum or authority has to be subjected to a second test or by way or appeal or revision and according to her a CRP is maintainable under Section 15 CPC, On a careful consideration of the scheme and purpose of the Act and since it is authoritatively held that CPC has limited application, I do not agree. When there is a specific provision for revision under the Act, there is no question of invoking Section 115 CPC. It is not necessary that every order passed by any Forum has to be subjected to a second test either by way or appeal or revision. In fact Section 115 CPC itself is hedged with limitations by a proviso to subsection (1) which excludes umpteen types of orders passed by the lower Courts. In such cases neither there is revision nor appeal. Hence, I hold that Section 115 CPC is not applicable to the proceedings under the Act.
14. She alternatively contended that the revision would He under Article 227 of the Constitution.
15. I carefully considered the above contention. In N.S. Reddy v. T.V. Reddy, , my learned brother Y.N. Narayana, J., following the ratio in the judgment Vishesh Kumar v. Shanti Prasad cited (supra) held that a revision petition filed under Section 115 CPC is a separate and distinct and it cannot be converted into one under Article 227 of the Constitution. That case arose under the provisions of A.P. (Andhra Area) Tenancy Act which is also a special enactment and it has been held that a Revision under Section 115 CPC is not applicable nor can it be permitted to be converted into a petition under Article 227 of the Constitution. I, therefore, do not see any merit in the contention of Smt. Bhaskara Laxmi.
16. The preliminary objection in my view is, therefore, merited and for the above reasons I hold that no revision lies against an order passed by the appellate authority allowing amendment of pleadings under Order VI, Rule 17 CPC. Point No.1 is answered accordingly.
Point No. 2:
In view of my finding on point No.l, it is not necessary to dilate much on this point.
However, it may not be out of place to refer to the judgment Ramesh Kumar v. Kesho Ram cited (supra), wherein it is held:
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to reliefer on aspects which bear on the moulding of the relief occur, the Court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.
Since the landlords are contending that allotment of the demised premises to them under a compromise is a subsequent event which has a bearing on their entitlement to relief, they are justified in seeking the amendment of pleadings. In such circumstances, amendment cannot be resisted on the ground that there is a fresh cause of action or a new plea. The fact remains that the landlords had joint interest before the compromise and hence they claimed the relief along with their father and now they are claiming the same relief to the exclusion of their father. I do not think that the amendment of pleadings on such grounds is not permissible on the aforesaid reasons. Point No.2 is answered accordingly.
17. In the result, all CRPs are dismissed, but without costs. The lower Court is directed to dispose of the appeals as expeditiously as possible preferably within two months from the date of receipt of a copy of this order.