IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 43 of 2008(E)
1. T.A. THAMPAN, S/O. T.C.ABRAHAM,
... Petitioner
2. T.A. SUNNY, S/O. T.C.ABRAHAM,
Vs
1. M.O. MANI, S/O. UTHUP MANI,
... Respondent
2. VALSA THAMPI, W/O. THAMPI,
3. MANI JOSHUA,
4. THOMAS JOSHUA,
5. ANNIE JOY, W/O. JOY,
6. ABRAHAM JOSHUA,
7. SUSAN JOSHUA,
8. KUTTIAMMA ABRAHAM, W/O.T.C.ABRAHAM,
9. SHYLA THOMAS, W/O. C.A.THOMAS,
For Petitioner :SRI.T.KRISHNANUNNI(SR)
For Respondent :SRI.S.VINOD BHAT
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :28/05/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
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W.P.(C) No.43 of 2008
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Dated this the 28th May, 2008.
J U D G M E N T
Petitioners are the defendants and first respondent the
plaintiff in O.S.No.200/1992, on the file of Additional Sub Court,
Kottayam. First respondent had originally claimed eviction by filing a
Rent control petition, as R.C.O.P.25/1983 under Section 11 of Kerala
Building (Lease & Rent Control) Act, Act 2 of 1965 (for short ‘the Act’).
Petitioners disputed the title of the first respondent in the rent control
petition. Rent Control Court, upholding the bona fides of the dispute
of title directed first respondent to approach the Civil Court. It is
thereafter O.S.No.200/1992 was filed seeking recovery of possession.
In the plaint, recovery of possession was sought contending that first
respondent needs the building to conduct a printing press and binding
business, which he is conducting in another building contending that
that building is proposed to be acquired. Recovery of possession was
also sought on the ground of arrears of rent. It was also contended
that defendants are not depending on the income derived from the
business being conducted in the plaint schedule building for their
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livelihood. Defendants in their written statement denied the title
contending that based on the unprobated Will, first respondent is not
entitled to claim title. The need for recovery of possession for shifting
the business was denied. Petitioners also claimed benefit under Sub-
section 17 of Section 11 of the Act , contending that their predecessor
have been in possession of the property prior to 1937. They also
contended that they are depending for their livelihood solely on the
income being derived from the business being conducted in the plaint
schedule building. The trial court under Ext.P3 judgment dismissed
the suit holding that first respondent is not entitled to the decree as
the title is based on an unprobated Will. It was challenged before
District Court, Kottayam, in A.S.No.139/2000. Under Ext.P4
judgment, learned District Judge found that the Will need not be
probated, in view of the subsequent legislation. It was found that first
respondent has title. Finding that no issue regarding the grounds
provided under Section 11 of the Act was raised or considered, the
learned District Judge remanded the suit for fresh disposal after
framing the necessary issues restricting evidence to be recorded on
the grounds for eviction, under Section 11(2) & (3) of the Act. The
order of remand was challenged before this Court in
F.A.O.No.136/2005 by defendants 1 and 3, and F.A.O.No.158/2003 by
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3
the plaintiff. Under Ext.P6 judgment, this Court confirmed the order of
remand and dismissed both the appeals. Before the appeal against
the order of remand was filed, defendants filed Ext.P5 application
(I.A.No.3055/2003) under Order VI Rule 17 of the Code of Civil
Procedure, to amend the written statement incorporating additional
paragraphs 16 to 25. It was opposed by the plaintiff by filing Ext.P7
objection. Under Ext.P8 order, learned Sub Judge dismissed the
application finding that the order of remand only enables the parties
to adduce evidence on the issues framed by the learned District Judge
and there is also a direction to dispose the suit within three months
from the date of receipt of copy of the judgment. Ext.P8 order is
challenged in this petition filed under Article 227 of the Constitution of
India.
2. The learned senior counsel appearing for the
petitioners and the learned counsel appearing for the respondents
were heard.
3. The learned senior counsel pointed out that there
was confusion as to whether in a suit instituted consequent to finding
on the bona fide dispute of title under Section 11(1) of the Act, the
W.P.(C) No.43/2008
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grounds for eviction as provided under Section 11 of the Act, is to be
established or not, and consequently the grounds for eviction as
provided under Section 11 of the Act was neither raised in the plaint
nor denied by the defendants in the written statement in the proper
perspective. It was pointed out that claim for recovery of possession
based on bona fide need of the plaintiff, though met in the written
statement, necessary and relevant details were not pleaded and the
fact that no issue on the grounds for eviction were framed by the trial
court, and first appellate court found that parties did not decide this
aspect, and, therefore, remanded the suit, establish that failure to
incorporate the necessary details sought to be introduced by Ext.P5
application was due to a bona fide omission, and for the sole reason
that there is a direction to dispose the suit within a time limit, trial
court should not have rejected the claim for amendment. The learned
counsel also submitted that the plea for amendment of the written
statement has to be liberally construed, and in such circumstances,
amendment sought for under paragraphs 16 to 22 should have been
allowed, even if the other paragraphs are not allowed.
4. The learned counsel appearing for the respondents
argued that there is no reason to interfere with Ext.P8 order. It was
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argued that petitioners are attempting to introduce new plea and facts
for evidence by amending the written statement. It was also argued
that order or remand does not provide for amendment of the
pleadings and only permit to adduce evidence on the issues framed by
the first appellate court.
5. Under Ext.P4 judgment, upheld by this Court under
Ext.P6 judgment, trial court was directed to decide the issues framed
in Ext.P4, viz., the issues regarding the grounds for eviction, provided
under Section 11(2) & 11(3) of the Act, as well as the claim of
defendants for the benefit of second proviso to Section 11(3) of the
Act. In the plaint, though there is no specific plea that the need is
bona fide, plaintiff has contended that there is a threat of acquisition of
the building in which he is conducting the business, and, therefore, it
is necessary for him to shift the business to the plaint schedule
building. It was also contended that the plaint schedule building has
more advantages. In the written statement, there is no specific denial
of these allegations, though it was contended that plaintiff is not
entitled to the recovery of possession for conducting the business. By
the proposed amendment under paragraph 16, petitioners sought to
plead that the need alleged is not bona fide and the advantages
W.P.(C) No.43/2008
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pleaded are not available, and there is no threat of acquisition, and
even if there is any acquisition, the entire building will not be
acquired, and, therefore, the need alleged is not bona fide. As
additional paragraph 17, the plea sought to be introduced is that first
respondent is in possession of other buildings owned by him, and he
had also obtained possession of other buildings from tenants. Under
paragraph 18, plea sought to be introduced is based on second proviso
to Section 11(3) of the Act, contending that they have no other means
of livelihood, except the business being conducted in the plaint
schedule building, and no other building is available in the locality. In
fact, in paragraph 15 of the original written statement, petitioners
have contended that they are depending on the income being derived
from the business being conducted in the plaint schedule building, and
there is no other suitable building available in the locality to carry on
the business. What is sought to be introduced in paragraph 19 is a
denial of the claim for arrears of rent, contending that during the
connected litigations, rent was deposited and so there is no arrears.
In paragraph 20 to 22, the contentions sought to be raised are that
the property obtained by first respondent under the Will, was alienated
and, therefore, he has no right to claim recovery of possession.
Paragraphs 23 to 25 relate to the identity of the property which the
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learned senior counsel submits that petitioners are not pressing. The
question is whether defendants are to be permitted to raise the
amendment sought for under paragraphs 16 to 22.
6. From Exts.P4 and P6 judgments, it is clear that
parties originally proceeded with the trial with the impression that
grounds for eviction, as provided under the Act, are not to be
established. It could only be the reason why necessary ingredients
were not specifically pleaded in the plaint or in the written statement.
The question whether first respondent is entitled to a decree for
recovery of possession is necessarily to be considered by the trial
court, as directed in Ext.P4 judgment, after deciding the entitlement
under Section 11(3) of the Act including the second proviso
thereunder. The amendment sought under paragraphs 16 and 17
relate to the bona fide need. Even without the said pleading,
petitioners-defendants-are entitled to cross examine the plaintiff on
those aspects. In such circumstances, permitting defendants to
amend the written statement, by introducing paragraphs 16 and 17
will not prejudice the first respondent-plaintiff. As far as paragraph 18
is concerned, those contentions were already pleaded in paragraph
15. There is no necessity to allow the amendment sought for in
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paragraph 18. As eviction under Section 11(2) of the Act is sought,
contentions raised in paragraph 19 is relevant. The plea sought to be
introduced is regarding payment of rent in the connected litigations
and no prejudice will be caused by allowing the defendants to raise the
amendment sought for as paragraph 19. Paragraphs 20 to 22 are
matters for evidence. Therefore, I do not find that it is necessary to
grant the permission sought for in paragraphs 20 to 22. Paragraphs
23 to 25 are not pressed by the learned counsel. Petitioners are
therefore to be permitted to amend the written statement
incorporating paragraphs 16, 17 and 19. To that extent, Ext.P5
application is to be allowed.
7. Ext.P8 order is therefore quashed. I.A.No.3055/2003 is allowed permitting defendants to amend the
written statement incorporating additional paragraphs 16, 17 and 19.
The fact that amendment sought for under paragraphs 20 to 22 were
not allowed will not prevent defendants from cross examining the
plaintiff on the alienations alleged, as it will be relevant while deciding
the question of bona fides. Learned Sub Judge is directed to dispose
the suit, as expeditiously as possible, without any delay, bearing in
mind that time limit was fixed even in Ext.P4 order of remand and
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Ext.P6 judgment of this Court.
Writ petition is disposed of as above.
M.SASIDHARAN NAMBIAR,
JUDGE
nj.