PYARA SINGH Vs. MAHANT GURMUKH DASS

JUDGEMENT

(1.) Piara Singh petitioner had at an earlier stage come to this Court on revision from the order of the Appellate Authority dismissing his appeal and affirming the order of the Rent Controller directing his eviction from the premises in question. On that occasion, the question of law as to what is the first day of hearing was not pressed and a new point not taken before the Tribunals below was effectively canvassed. This point was that the tenant had taken on lease a vacant site, with the result that no order for his eviction from a huge building he had constructed on it could be passed by the Rent Controller. In other words, the contention raised was that the Controller had no jurisdiction to pass orders for the eviction of any person from the premises of which he is not a lessee and which in law and in fact is owned by him. The respondents urged that this was not the point raised before the Tribunals below and, therefore, should not be allowed to be raised. After looking at the lease deed, I felt that this point in the interest of justice required trial and I, therefore, considered it fair and just to set aside the orders of the Appellate Authority and of the Rent Controller and to remit the case back to the Rent Controller for considering the effect of the construction of the building on the rented land which was the subject-matter of the lease-deed. The tenant petitioner in this Court was in the circumstances permitted to amend his written statement so as to incorporate therein this plea, I expressly observed that the tenant was entitled to seek permission to amend his written statement to formally incorporate the plea of the construction of building on the rented land and its effect on the landlord's application for eviction from the building.

(2.) In pursuance to my previous order, the tenant is stated to have actually amended his written statement. In order to meet the amended written statement, the landlord has, it appears, sought permission to amend his original application so as to omit therefrom the relief regarding possession of the building. The learned Rent Controller has considered it in the interest of justice to permit this amendment. It is against this order allowing consequential amendment in the application for eviction that the present revision has been preferred.

(3.) The learned counsel for the petitioner, Shri K.N. Tiwari, has, to begin with, asserted with a certain amount of eloquence that the Rent Restriction Act does not in terms confer any power on the Rent Controller to allow amendment of pleadings. It has further been urged that the only power of a Court under the Civil Procedure Code conferred on the Controller or the Appellate Authority is that of summoning and enforcing the attendance of witnesses and controlling the production of evidence. This, according to the learned counsel, by necessary implication excludes the power of allowing amendment of the pleadings. This submission has been sought to be re-inforced by reference to some decided cases. The first case referred at the bar is Shah Devichand Moolchand V/s. Shah Dhanraj Kantilal, 1949 AIR(Mad) 53 where it is held that in the absence of incorporation of the provisions of the Civil Procedure Code in the rules of procedure for the tribunals under the Control Act there is no justification for the application of the principles of those provisions. There the landlord had died before the application for eviction came up for hearing. His son filed an affidavit before the Rent Controller to this effect and claiming himself to be the only son and legal representative of his deceased father, desired to be brought on the record as such. It was contended that there was no provisions for bringing on record the legal representatives and continuing the proceedings instituted already and that the petitioner's only remedy was to file a fresh petition. On this plea, it was held that the application for bringing on record the son of the deceased landlord contained all the material facts and that, therefore, the technical objection of filing a separate application instead of the application to be brought on the record could not stand. In my opinion, this decision is not directly applicable and by analogy I am disinclined to hold that the impugned order is without jurisdiction or contrary to law. In Khaja Gulam Chous V/s. Collector Medak,1958 AIR(AP) 442, is the next decision from which assistance is sought. It has been observed there that a remedy against the order of a right to set aside an ex parte decree belongs to the same category as an appeal or review and must be given by the statute. There being no such remedy under the Rent Control Order in force in that State, no application for setting aside an ex parte order was competent. This again, in my opinion, does not support the petitioner's contention. In Rup Lal Sitaram Bhagat V/s. Sheo Shankar Awasilal, 1953 AIR(Nag) 191, it was observed that a Rent controller has no inherent power to set aside an ex parte order, such power being excluded by clause 21(3) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949. Needless to say, that this dictum is also unavailing to the petitioner. Reference has lastly been made by Shri Tiwari to Rameshwar Dutt etc. V/s. Sheo Ram Kishan,1963 65 PunLR 1016 where I had observed that amendment sought cannot be allowed if it really begins a fresh challenge to the other party's right apparently settled after proper contest by putting forth an entirely new case, which would amount to an attempt to change the very question in controversy between the parties. This decision also does not support the petitioner in the contention that the Rent Controller had no power to allow amendment of the landlord's application on the facts and circumstances of this case. Indeed, Shri Tiwari has referred to this decision for the purpose of supporting the submission that on merits the order of amendment is unjustified.