B SURYANARAYANA RAJU Vs. B RAMALINGESWARARAO

JUDGEMENT

(1.) THIS is a tenant's revision petition filed under the Andhra Pradesh Buildings (Lease Rent and Eviction) Control Act, 1960. The landlord sued the tenant for eviction on the basis that he requires the building for his personal occupation and also on the ground of wilful default alleged to have been committed by the tenant in payment of rents. The trial Court ordered eviction of the tenant. Against that the tenant preferred a rent appeal. During the pendency of that appeal, the tenant filed an application seeking permission to amend his counter so as to permit him to raise two new pleas. That application was rejected by the appellate Court. It is against that order the tenant has filed this revision.

(2.) THE eviction petition has been filed by the landlord seeking eviction of the tenant in the year 1976. It appears that the same was allowed some time in the year 1981. It was filed on the basis that the building which has been let out belongs to the petitioner and the building falls within the purview of the Rent Control Act. THE tenant in his counter did not challenge any one of these assumptions. In fact the tenant has partly succeeded on the basis of his contest, based on his counter showing that the landlord does not require the building for his personal occupation. Now on ths second finding that there was wilful default the eviction petition has been ordered. THE question now is, whether the tenant should be permitted to raise these new pleas at the appellate stage. It must be noted that permitting the tenant to raise new pleas would clearly prolong this five-year old eviction litigation. THE reason assigned by the tenant for not raising these pleas in the Court below earlier is that by oversight he had forgotten to raise these pleas In the circumstances of this case, where that oversight could only be corrected at the cost of great legal detriment to the laadlord I think, it is not justifiable to permit the tenant to raise these new pleas by way of an amendment at this late stage. THE first plea now sought to be raised is to the effect that the Act does not apply to the petition schedule premises as it is a boarding house under the nams and style of Ambiva Hotel." This plea cannot be adjudicated without letting in further evidence. How the building was leased out and subject to what terms and conditions calls for fresh evidence. That course is bound to take considerable time. Similarly the second plea which the tenant wants to raise for the first time also raises a question of fact calling for fresh evidence. That second plea is that the landlord cannot sue without his co-owners joining him in the viction petition. That also would require some evidence though not so much as the first plea, This issue also consumes considerable time. In the circumstances of the case, where the tenant has not raised these pleas in the Court below on the ground of forgetfulness and suffered an order of eviction after trial, I do not think it just to permit him to raise these new issues which would protract and prolong this litigation. But the learned Counsel for the appellant has relied upon three judgments of the Supreme Court reported in Manohar Lal v. N.B. M. Supply Gurgaon Mohd. Mustafa v. Abu Bakar and Ishwardas v. state of M. P. Order 6, rule 17 of the Civil Procedure Code gives a discretion to the Court to permit either party to a suit to alter, amend his pleadings in such manner and on such terms as may be just. This discretionary power should be exercised by the Court consistent with the demands of justice in a case. THE question that should be asked is whether in the circumstances of this case is it just to permit the tenant to amend his pleadings which would involve a fresh trial. THE reason which the tenant has assigned for his failure to amend his pleadings before the trial Court is his forgetfulness. It is no doubt that Supreme Court in Mohd. Mustafa v. Abu Bakar, allowed the amendment of pleadings and ordered further trial. But that was done by the Supreme Court only in the interests of justice and in order to avoid grave miscarriage of justice to one of the sons of a Muslim father. In that case the appellant-defendant pleaded that his father Sanaullah had three pharmacies and had gifted away one pharmacy to each one of his three sons and for that reason the pharmacy originally known as Darul Adviya did not constitute the joint family property and was therefore, not available for partition. He also contended that some other items shown in the plaint schedule are his self-acquisitions which were not available for partition. On that basis he went for trial. He had, however, failed to take an alternative plea that in case the Court negatives his plea of separate property, all the three pharmacies were liable to be divided equally among the three children of Sanaullah. On these pleadings the only issue considered by the Courts below was whether the concern known as Darul Adviya was the joint family property and if so, what was the share of the plaintiff? THE first issue was held against the defendant appellant. In the High Court the appellant made an application seeking permission to plead that the other two pharmacies were also the joint family properties and should, therefore, be divided among the sons. But that amendment was rejected. Although the High Court had concluded that the three pharmacies referred to above, belonged to Sanaullah and on that basis the three pharmacies should be considered as the joint properties of the parties to the suit, the High Court refused to grant any relief in respect of those items of property on the sole ground that the appellant did not take the plea that those items of property were the joint family propsrties of the parties in the suit. It is under those circumstances, the Supreme Court had permitted the amendment of the written statement. THE ratio decidendi of that case appears to me that the amendment should be permitted to be made even at a late stage provided the Court is satisfied that by so doing the interests of justice are promoted. Manohar Lal v N. B. K. Supply, Gurgaon on which the learned Counsel relied upon has this passage :-