JUDGMENT
G.B. Patnaik, J.
1. The order of the Controller dated 1-6-1989 allowing an application for amendment filed by the landlord to include the prayer for fixation of fair rent is being challenged in this writ application.
2. The petitioner is the tenant in respect of the house in question and the landlord (opposite party No. 2) filed the application for eviction on the ground of wilful default and bona fide requirement in 1987 which was registered as H.R.C. Case No. 32 of 1987. The House Rent Control Act ceased to have any effect with effect from 3-5-1988. The landlord filed an application for amendment on 10-4-1989. The amendment sought for was to insert the prayer for fixation of fair rent. The tenant filed an objection on the ground that an application for fixation of fair rent within the ambit of Section 5 of the Orissa House Rent Control Act is an independent cause of action and the Act itself having expired, the said application for amendment cannot be allowed. The Controller, however, by the impugned order dated 1-6-1989 has allowed the amendment on the finding that the prayer for fixation of fail rent and the prayer for eviction can be made simultaneously in one application and, therefore, there is no bar for allowing the amendment in question.
3. Mr. Misra, the learned counsel for the petitioner, in assailing the order of the Controller contends that the jurisdiction of the Controller to fix fair rent arises on an application being made and when such an application is made, the Controller can fix the fair rent with effect from the date of the application. Therefore, unless an application is made for fixing the fair rent and unless rent is fixed by the Controller no right can be said to have acquired or accrued and consequently, the Act having expired its life since May, 1988, the Controller could not have entertained the application for fixation of fair rent on 10-4-1989. What he could not have entertained cannot be permitted to entertain the same by virtue of an amendment to the original application for eviction which was pending on the date. In support of his aforesaid contention, he places reliance on the decision of this Court in the case of Sri Jagannath Ayurvedic Pharmacy v. House Rent Controller, Cuttack, 1989 (2) OLR 415 : (AIR 1990 Orissa 168), as well as the decision of this Court in the case of Umakanta Pradhan v. Sub-Division Judl. Magistrate-cum-House Rent Controller, Bhubaneshwar, (1990) 69 CLT 207.
Mr. Das, the learned counsel for opposite party No. 2, on the other hand, contends that in the aforesaid decisions the expression “omitted to be done before the expiration thereof occurring in Sub-section (4) of Section 1 of the Orissa House Rent Control Act has not been considered and since the landlord had the right under the Act to get the rent fixed, that right cannot be taken away even after the expiry of the Act and by application of Section 5 of the Orissa General Clauses Act, a landlord could make an application. Mr. Das further urges that the genera! principles with regard to amendment being that an amendment can be made at any stage of the proceeding, the Controller has not committed any error in allowing the amendment and, therefore, this Court should not interfere with the order in question. The rival contentions require a careful examination of the provisions of the Orissa House Rent Control Act as well as the Orissa General Clauses Act and some decisions cited at the Bar.
4. The Orissa House Rent Control Act ceased to have any effect on the 4th May, 1988, but by virtue of Sub-section (4) of Section 1, things done or omitted to be done before the expiration of the Act survived and by a legal fiction, Section 5 of the Orissa General Clauses Act has been made application even though there has been no repealing of the Act. Section 1(4) of the Orissa House Rent Control Act as well as Section 5 of the Orissa General Clauses Act came up for consideration in Sri Jagannath Ayurvedic Pharmacy’s case, 1989 (2) OLR 415 and after an elaborate discussion of the law on the point and referring to several decided case laws, it was held by this Court that though an Act had expired yet the effect of things done or omitted to be done could be saved. What was answered in that decision was that proceedings initiated under the Act prior to 4-6-1988 were not invalidated and were open to adjudication even after 4-5-1988 and section 5 of the Orissa General Clauses Act applied and the proceedings could be validly continued. In Umakanta Pradhan’s case (1990) 69 CLT 207, the question that was posed for consideration was whether a House Rent Controller would have jurisdiction to entertain a proceeding under the Orissa House Rent Control Act, 1967 after its expiry on 4-5-1988. It was held by their Lordships that a close reading of section 5 of the Orissa General Clauses Act would indicate that that was unaffected by repeal of the statute was a right acquired or accrued under it and not a mere possibility of acquiring a right. It was, therefore, observed that a distinction had to be kept in mind between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. In relation to an eviction proceeding under Section 7 of the Orissa House Rent Control Act, it was held that though under Section 7 default in payment of rent or requirement of house for bona fide use could be a ground for eviction of the tenant which arose before the expiry of the Act, yet it did not create that right in favour of the landlord and it merely gave a right to approach the House Rent Controller with a prayer to evict the tenant and put him in possession of the house. Consequently, that would not be a right acquired or accrued within the meaning of Section 5(1)(c) of the Orissa General Clauses Act. It was, therefore, held that an application for eviction could not be entertained even in respect of default committed during the subsistence of the Act after the life of the Act expired. In our considered opinion this decision lays down the correct principle interpreting section 5 of the Orissa General Clauses Act.
5. Mr. Das, however, strenuously urges that the aforesaid Orissa decision has not taken into consideration the expression “omitted to be done” in Section 1(4) of the Orissa House Rent Control Act and, therefore, contends that the landlord who had the right to ask for fixation of fair rent having omitted to do so could maintain an application for the same even after the act has expired. In support of the aforesaid contention, reliance was placed by him on the decisions in State of Madhya Pradesh v. Hiralal Sutwala, AIR 1959 Madhya Pradesh, 93 and Seth Jugmendar Das v. State, AIR 1951 Allahabad, 703. But having gone through those two decisions, we do not find anything therein which supports the contention of Mr. Das. What has been stated in both those cases is that a prosecution which was launched before the expiration of the Act for offence committed under the Act could be continued even after the expiration of the Act. There is no dispute with the aforesaid proposition laid down in the aforesaid two cases, but by no stretch of imagination it supports the contention of Mr. Das, as noticed earlier.
6. As has been held by us, a right for determination of fair rent under section 5 would accrue only on an application being made and, therefore, after the expiry of the Act, an application for determination of fair rent cannot be entertained even for the period for which the Act was in force, since section 5 of the Orissa General Clauses Act will not apply to such a case. Section 5 of the Orissa General Clauses Act saves certain right, privilege, obligation or liability acquired, accrued or incurred under the repealed Act. In other words, the said provision does not affect rights accrued, penalty incurred or duty imposed or proceedings started under the statute which has been repealed and in that context the expression “omitted to be done” has to be understood. But in view of our analysis of section 5 of the Orissa House Rent Control Act and in view of our conclusion that no right accrues in favour of the landlord unless an application is made, in our opinion, no application for fixation of fair rent could be filed after the expiry of the Act even in respect of a period when the Act was in force. We would, therefore, reject the submission of Mr. Das, the learned counsel for opposite party No. 2 and accept the submission of Mr. Mishra for the petitioner on this score.
7. The question then arises for consideration is that even though an application for fixation of fair rent could not have been entertained after the expiry of the Act but a proceeding for eviction having been filed and being pending, could that relief be inserted by way of amendment? The answer to this question must be in the negative, the reason being that a right of getting fair rent fixed is a right independent of the right of getting an order of eviction under Section 7. It is independent cause of action determination of which depends upon independent criteria not in any way connected with the criteria fixed for eviction under Section 7. The decision on which the learned controller has relied upon has absolutely no relevance for determination of the point in issue. We would, therefore, unhesitatingly hold that a relief of getting fair rent fixed could not be inserted by way of amendment after the expiration of the Act even though an application for eviction was pending.
8. The only other question that survives for our consideration is whether applying the general principles of amendment, an application for amendment could be allowed since Courts have held that an application for amendment can be allowed at any stage of the proceeding. In support of the aforesaid contention, Mr. Das for opposite party No. 2 relies upon the decision of the Supreme Court in the case of Pirgonda Hongenda Patil v. Kalgonda Shidgonda Patil and others, AIR 1957 Supreme Court, 363, as well as the decision of this Court in the case of B.N. Das v. Bijaya Ketan Mohanty, AIR 1982 Orissa, 145. There is no dispute with the general proposition that an application for amendment could be entertained at any stage of the proceeding even after hearing arguments and before judgment depending upon the facts and circumstances of the case. But at the same time it is also a well-known principle that however wide the power of amendment may be where the relief sought for by way of amendment depends upon independent considerations other than which the original relief was sought for and the requisite element for grant of such additional relief is fully wanting, the amendment should not be allowed. The relief of fixation of fair rent cannot be said to be a relief ancillary to the relief of eviction; it is an independent relief which can be determined on the basis of materials completely different from the materials on which the prayer for eviction could be allowed. It is also the settled position of law that an amendment should not be allowed when it places the opposite party in a position which cannot be compensated by way of costs. The relief for fixation of fair rent within the ambit of section 5 of the Orissa House Rent Control Act which could have been sought while the Act was in force and not having been sought while the Act was in force, should not be allowed by way of amendment in a pending proceeding for eviction, as it would put the tenant to such disadvantage and injury which cannot be compensated at all. In any view of the matter, the amendment sought for could not be permitted. In our opinion, therefore, the order of the Controller dated 1-6-1989 allowing the amendment is illegal, invalid and without jurisdiction and the same cannot be sustained. We would accordingly quash the order of the Controller dated 1-6-1989, annexed as Annexure-4.
9. The writ application is allowed, but there would be no order as to costs.
J.M. Mahapatra, J.
10. I agree.