VARGHESE MATHEW Vs. T.R. RAJESH

JUDGEMENT

(1.) THE petitioners herein, being the petitioners in RCP 7/2011, are aggrieved by Ext.P5 order passed by the Rent Control Court, rejecting the application for amendment of the eviction petition. The main reason pointed out by the court below for rejecting the application is that the said application was filed after the closure of the evidence of the landlords. Further, it is pointed out therein that in the light of the principles laid down by the Hon'ble Apex Court in J. Samuel and others v. Gattu Mahesh and others[(2012) 2 SCC 300] also, the application cannot be entertained.

(2.) WE heard the learned counsel appearing for the petitioners Sri.Babu Paul and the learned counsel appearing for the respondent Sri.Jacob P. Alex. Sri. Babu Paul submitted that the amendment was required in the light of the amendment allowed by the very same court after the evidence of the landlords was over, permitting the tenant to add some more paragraphs, i.e. paragraphs 28A to 28D. It is therefore submitted that this is not a case where the law laid down in the decision in J. Samuel and others v. Gattu Mahesh and others[(2012) 2 SCC 300], is applicable. More importantly, the learned counsel points out that at the time of examination of the landlords, tenant had nothing in his pleadings that the landlords own a three storied building in the very same locality and therefore there is failure to offer special reason under the first proviso to Section 11(3) of the Kerala Buildings(Lease and Rent Control) Act. It is submitted that during the examination of the landlords no question was put in cross examination about the said aspect. Therefore, the landlords did not get any opportunity to explain or offer any reason. This according to the learned counsel can be introduced only by way of an amendment as the tenant was allowed to bring in additional pleadings by way of Ext.P2 application for amendment and naturally the landlords should also be furnished with an opportunity to amend the pleadings. Sri. Jacob Alex, during his strenuous arguments, submitted that the Apex Court in J. Samuel and others v. Gattu Mahesh and others[(2012) 2 SCC 300] has explained the significance of 'due diligence' as 'test to determine whether court's discretion to allow amendment should be exercised or not'.

(3.) WE have perused the documents. The petitioners have filed eviction petition under Section 11(3) of the Act. As already noted Ext.P2 is an application for amendment filed by the tenant which is dated 17.10.2013. It is clear that the landlords' evidence was closed on 18.10.2013. Ext.P2 petition filed by the tenant was ordered subsequently. The petition filed by the landlords for amendment is dated 12.11.2013, which is clear from Ext.P3.