LAWS(APH)-1987-9-37

M VENKATACHALAM Vs. M B RAMAIAH

Decided On September 09, 1987
MANDIPALLI VENKATACHALAM ALIAS MANDU Appellant
V/S
M.BHASKARA RAMAIAH Respondents

JUDGEMENT

(1.) this revision is preferred bv the tenant against an order allowing the appeal preferred by the respondent land-lord herein against the order rejecting the application seeking amendment under order 6 Rule 17 cpc.

(2.) the case in short is that rcc 74 of 1980 was filed in the month of SEPTEMBER, 1980 in the rent court and the case came up for trial before the court on 19-3-1986. Thereafter an application was filed in i.a. 849 of 1986 for amendment of the petition to the effect that the rent for the schedule premises was not Rs. 2,000/- but Rs. 200/-, it was a typographical error and, therefore, the same be allowed to be amended by substituting Rs. 200/- for Rs. 2000/-. This was opposed. Thereafter the application was dismissed by the rent court. The appeal preferred against it was allowed. Hence this revision petition. The facts which are not disputed are. Before rcc 74 of 1980 was filed in the trial court, a notice was issued by the respondent land-lord herein for payment of arrears of rent at the rate of Rs. 2,000/- per month. A reply to that notice was sent stating that the petitioner was not a tenant, the rent however is not and cannot be Rs. 2000/-. Thereafter, the rent case was filed. Tt is again alleged therein that the rent is Rs. 2,000/- per month and since the default is committed the eviction will have to be ordered. Counter to the petition has also been filed stating that he is not a tenant of the respondent land-lord, even otherwise the premises cannot fetch more than Rs. 200/- per month. Long thereafter in the month of April 1986 the amendment was sought for. It is not in dispute that in the month of June 1985, the supreme court held that under the Rent Control Act of the State that the "provisions to the effect that all those houses which have been onstructed prior to 1956 alone will be brought within the ambit of Rent Control Act and that subsequsntly constructed houses will not come tinder the purview of the act, are unconstitutional and illegal and therefore were struck down. Subsequently, the state government issued g.o. amending the provisions in February, 1986 to the effect that all the buildings, the rent of which is more than Rs. 1,000/- cannot be brought within the ambit of Rent Control Act and the buildings, which are less than 10 years old cannot fall within the purview of the act, it is thereafter this amendment petition was filed seeking to reduce the rent from Rs. 2000/- to Rs. 200/-. The trial court has rejected the amendment on the ground that not with standing and exchange of notices between the parties prior to the filing of the of the rent case, the landlord struck to the version that the rent is Rs. 2,000/ per month and therefore the proposed amendment cannot be allowed.

(3.) on appeal it was held by the lower appellate court as under: "the stand taken by the respondent is not consistent and he wants to take advantage of a simple mistake that has been crept right from the noticestage in the petition by putting the figure Rs. 2,000/- instead of Rs. 200/-. Order 6 Rule 2(3) cpc envisages that every pleading where date, sum and number to be mentioned, they are also to be mentioned in words. This Rule is laid down for the purpose of avoiding mistakes, and any lapses will not be of any serious consequence at all. Both the from the facts and circumstances, it is quite evident that the figure Rs. 2000/- that has been claimed as rent is a bonafide mistake and there is no malafide intention on the part of the appellant to circumvent g.o. ms. No. 636 gad (accommodation-a) department which had been passed ousting the jurisdiction of the rent control where the rental is exceeding Rs. 1,000/- per month. It is hard to believe that any one would try to lose a sum of Rs. 1800/- towards rent by raising the plea that the rental was Rs. 200/- instead of Rs. 2000/-. His lordship has well observed that the Rules and procedure are only hand made enabling the court to arrive at the just decision and in the interests of justice taking into consideration the facts and circumstances it may allow the amendment in the pleadings. From the facts and circumstances of the case, there are sufficient grounds to allow the amendment of the pleadings." the case law relied upon bv the learned council for the petitioner may be referred to. In Padmanabha Talkies vs. Gowthami Pictures it is held that where an amendment if allowed, would be beyond the pecuniary jurisdiction of the court, the said amendment could not be allowed. The proper procedure is to return the plaint and the amendment petition for presentation to the proper court having jurisdictionl for consideration. In Ratan Chand vs. Mahendra Kumar, it is held that the court which lacks pecuniary or territorial jurisdiction to entertain the suites not competent to allow amendment of plaint to bring suit within its jurisdiction. In Zohra Khatoon vs. Mohd. Jane Alam it is held that granting an amendment postulates an authority of the court to entertain the suit and make an order for amendment therein but where the court inherently lacks jurisdiction to entertain the suit it cannot make any order for amendment to bring the suit within its jurisdiction. In that case the court will bs exercising jurisdiction which it has not. In Manoharlal vs. N.B.M.Supply, Gurgaon it is held thus : Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives ieave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side". In Gopala Rao vs. Kitamma it is held thus : "courts of law should bear in mind the sacred duty of doing justice between the parties in accordance with the provisions of the Code of Civil Procedure. They do not exist for the purpose of punish ing the parties. Rules of procedure are not framed to defeat justice. When the other party can be compensated by way of costs or other proper terms, the amendment ought not to be refused on the sole ground of delay or negligence. It cannot therefore be held that an amendment should not be allowed of the facts sought to be introduced by way of amendment were known to the party at the time of filing the plaint or the written statement." in Haridas Aildas vs. Godrej Rustom it is held thus : "the court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances." in M.Allauddin vs. P.S.Lakshminarayana it is held thus : where the plaintiff applied for an amendement of the plaint and it was found by the court that in case the amendment was allowed the value for the purpose of jurisdiction would probably exceed the court's powers : held : the right course to adopt was to allow the amendment, grant an opportunity to the plaintiff to pay the deficit court-fee, and if there was any question about pecuniary jurisdiction arising, examine the matter on a definite finding on that question, to decode whether the plaint should be retained or would to be returned to the plaintiff as one in excess of the pecuniary jurisdiction of that court". In Sobha vs. Mahale it is held thus : "order 2 Rule 2(2) c. P. C. Is not the only provision in the code for voluntary relinquishment of claims. Where the valuation of a suit is found to be beyond the pecuniary jurisdiction of a court, it is open to the plaintiff at any stage of the suit but betore the plaint is returned for presentation to the proper court to abadon any part of his claim under o. 23 r. 1 (1) c. P. C. So as to bring it within the jurisdiction of the court. This can be done by a Unilateral Act of plaintiff by making a statement to the court and the court would noramlly record the statement and proceed to try the suit with regard to the rest of the claim. Even if the plaintiff applied for such amendment the court should treat it as a statement abandoning part of the claim. The court is not justified in refusing the amendment merely on the ground that as it has no jurisdiction to try the suit it has also no jurisdiction to allow amendment of plaint or even to record the statement of the plaintiff abandoning part oi the claim. As long as the court has not given a finding that it has no jurisdiction and the plaint should be returned for presentation to the proper court, it is seized of the matter because the court has the right to decide the question of its own jurisdiction even if the decision ultimately be that it has no jurisdiction". In Patel Construction & Co. Vs. S.R. Amulakh it is held thus : "where the effect of the amendment would be to oust the jurisdiction of the court, which it originally had the proper course is to allow the amendment and then to return the amended plain for presentation to the proper court. To reject the application for amendment on the ground that the amendment would take the suit out of the pecuniary jurisdiction of the court is not in consonance with the spirit of order 6 Rule 17 nor is it open to the court to return the plaint along with the application for amendment to be filed in the proper court". In Ram Gopal vs. Man Chand it is held thus : "the immediate cause of action for a suit between a landlord and tenant for the latter's eviction is the determination of tenancy. That was done in the present case by the notice to quit. The notice stood unchanged. It could not therefore be said that there was any change in the cause of action for the suit................................ Held, amendment of the plaint taking the suit out of the Purview of Up Act (3 of 1947) on the ground that the building in question was constructed in 1952 did not change the cause of action". In Punjab National Bank vs. Lalji Tandon it is held thus : "thus, in view of the said authorities, i find that even if the court has no jurisdiction to award the relief for damage caused to the building, it could have allowed the amendment. There was no lack of pecuniary jurisdiction in the court below, because the suit was entertainable by the district judge on small causes court's side so far as the valuation of the suit was concerned. The next contention raised on behalf of revisionist was that the amendment was malafide ; it should have been refused specially when the learned trial judge himself found that the relief about the damages caused to the building could not be awarded by a judge on small causes court side ; the damages for use and occupation were claimed at the rate of Rs. 150/per month and now the plaintiff sought to claim the damages at the rate of Rs. 200/per day". In V.Gopal Pillai vs. N.S.I.Corpn. Ltd. It is held thus : "in a suit instituted in high court, the plaintiff claimed two reliefs (1) refund of earnest money and (2) damages. The refund claimed was Rs. 24, 447/- and there was a prayer for inquiry into damages and decree for the amount found due. The plaintiff ought to have valued the suit on the basis of these two claims. But his lawyer omitted to do so. On the contrary he valued the suit on a nonexistent and/or imaginary basis at Rs. 1050/the pleading for damage and prayer for damages were already in the plaint, what was lacking is the plaintiff's assessment of the damages. Held, this is a pure case of blunder or omission by the draftsman, and not a case of lack of inherent jurisdiction of court. The plaintiff's application for the amendment of the plaint by valuing the suit at Rs. 54,445/-viz., refund for Rs. 24,445/and damages Rs. 30,000 with leave to pay additional court fee and other consequential orders is is therefore allowable". On a survey of the above case law what becomes manifest is that amendment of the pleadings is indeed a Rule and it should be liberal. But however amendment if it ousts the jurisdiction of the court then it must stay its hands off. Again if the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs, in such circumstances also the court may not allow the amendment sought for.