VISWANATHA SHET Vs. SREE GOPALAKRISHNA DEVASWOM

JUDGEMENT

(1.) This revision petition arises from R.C.P. No. 80 of 1986 on the file of the Rent Control Court, Kochi. The revision petitioner is the tenant and the respondent in the R.C.P. The respondent is the landlord and the petitioner in the R.C.P.

(2.) The landlord filed R.C.P. No. 80 of 1986 for eviction of the tenant under S.11(3) and S.11(8) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Act). After closing the evidence on both sides the landlord filed I.A. No. 1995 of 1989 for amendment of the petition for incorporating S.11(7) of the Act also. In the affidavit filed in support of the I.A. it was stated that at the time when the Rent Control Petition was prepared, in the cause title the petition was shown to be under S.11(3) and S.11(8) of the Act, instead of showing that the petition was under S.11(7). It was further stated that wrong sections were written by an inadvertent mistake. It was further stated that the amendment application was filed by way of abundant caution to avoid unnecessary arguments. It was prayed that in the cause title the figures and words S.11(3) and S.11(8) may be struck off and S.11(7) may be substituted. The tenant opposed the amendment contending that if the amendment was allowed it would change the character of the petition and would be prejudicial to him. Though the Rent Control Court accepted the position that the Rent Control Court can grant an order for amending the petition if the proposed ground was already available and was omitted to be incorporated in the petition by an inadvertent error, the court found that the petitioner in the R.C.P. really sought an order of eviction under S.11(3) and that there was no specific pleading under S.11(7). The Rent Control Court also found that even if the proposed amendment would not change the character of the petition it would definitely prejudice the right of the respondent as the respondent had not elicited evidence by cross examining P.W.1 with reference to the new proposed ground. The Rent Control Court further found merit in the argument of the respondent that the affidavit in support of the amendment application was not affirmed by the petitioner in the R.C.P. According to the Rent Control Court the counsel cannot plead that the petitioner is having bona fides unless the petitioner himself affirms the contents of the affidavit. Hence the Rent Control Court dismissed the application for amendment. Against the dismissal of the said application, the landlord filed R.C.A. No.107 of 1995 in the Court of the Rent Control Appellate Authority, Ernakulam. The Appellate Authority set aside the order dated 10.8.1989 of the Rent Control Court in I.A. No. 1995 of 1989 and the prayer in the said I.A. was allowed. Against the judgment of the Appellate Authority the tenant has filed this Revision Petition.

(3.) The first question to be considered is whether the Rent Control Court has power and jurisdiction to allow amendment of the petition in the R.C.P. It was contended by the learned counsel for the revision petitioner that the power of the Rent Control Court for allowing an amendment is restricted to the power conferred by S.23(1)(j) of the Act. As per S.23(1)(j) of the Act the Rent Control Court has power to amend any defect or error in orders or proceedings. The contention of the revision petitioner is that the amendment sought in this case is not to amend any defect or error in orders or proceedings and therefore the amendment should not have been allowed by the Appellate Authority. However, the Appellate Authority rejected the above contention of the tenant and relying on a decision in Ibrahim v. Joseph ( 1975 KLT 167 ) held that a Rent Control Petition is part of proceedings mentioned in S.23(1)(j) of the Act and therefore if grounds, other than those mentioned in the petition, were available for eviction and by an omission they were not mentioned in the petition, the said error in not stating them in the petition for eviction can be amended. The Appellate Authority has also referred to the decision in Abdulla v. Rent Controller ( 1984 KLT 865 ) wherein it is held that the Rent Controller has always jurisdiction to allow amendment as long as it is bona fide and necessary to do justice between the parties and so long as it does not lead to irreparable injury to the opposite party.