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REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4148-4149 OF 2009
(Arising out of SLP)Nos.23661-23662 of 2007)
Olympic Industries ----Appellant
Versus
Mulla Hussainy Bhai Mulla
Akberally & Ors. ....Respondents
JUDGMENT
TARUN CHATTERJEE, J.
1. Leave granted.
2. These appeals are directed against the judgment
and order dated 15th of February, 2007 passed by
a learned Judge of the High Court of Judicature at
Madras in CRP (NPD) No.207 of 2002 and CMP
No.2249 of 2002, by which in the exercise of its
revisional power, the High Court had rejected the
application for permission to file additional
counter statement.
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3. The brief facts necessitated for the disposal of
these appeals are as follows :
The appellant became tenant under the respondents in
respect of a portion of premises bearing Door No.37, West
Mada Church Street, Royapuram, Chennai-13 for non
residential purposes at a monthly rental of Rs.750/-. Seeking
fixation of fair rent at Rs.10,177/- per month, the
landlord/respondents filed a petition before the XIIth Judge of
the Small Causes Court at Chennai. The fair rent was sought
for on the calculation of cost of construction of Madras
Terraced Building (960 sq. ft) and Zinc Roofed Building (390
sq. ft) and market value of the land. In the said application
for fixation of fair rent, the appellant filed his counter
statement contending that the monthly rent of Rs.750/-
being paid by the appellant was the fair rent and could be
fixed as fair rent or alternatively to fix the fair rent according
to the report of the Engineer appointed for that purpose.
4. Trial commenced and P.W.1 was examined. At this
stage, the appellant filed an application seeking permission
before the Rent Controller to file additional counter statement
raising a plea that the appellant was the tenant of the land
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alone in respect of the portion of tenanted premises to the
extent of about 600 sq. ft. In the additional counter
statement, the appellant also raised a plea that the
appellant-Olympic Industries is only a lessee of the land
measuring about 5600 sq. ft. and lessee of the room
measuring 400 sq. ft. in the main building.
5. This application for acceptance of additional counter
statement was resisted by the respondents alleging that the
additional counter statement containing new and
inconsistent plea raised by the appellant at the belated stage,
more particularly, after completion of examination of
witnesses, could not be allowed as that it would cause
serious prejudice to the respondents. The Rent Controller
allowed the said application, inter alia, on a finding that
opportunity must be given to the appellant to put forth his
additional defence. Feeling aggrieved, the respondents
preferred an appeal before the Appellate Authority which also
accepted the additional counter statement, inter alia, on a
finding that when the existence of the lease was admitted,
the party, that is the appellant, can file such additional
counter statement. The Appellate Authority also took the
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view while accepting the additional counter statement that
the averments in the additional counter statement would not
alter the position of the parties and that the respondents
would have sufficient opportunity to challenge the averments
in the additional counter statement. In revision, the High
Court had set aside the concurrent orders of the Rent
Control Authority and rejected the application for acceptance
of additional counter statement filed by the appellant.
6. It is this order which is under challenge before us
which, on grant of leave, was heard in the presence of the
learned counsel for the parties.
7. Having heard the learned counsel for the parties and
after going through the additional counter statement as well
as the original counter statement and the application for
fixation of fair rent and other materials on record, we are of
the view that the High Court was not justified in interfering
with the concurrent orders of the Rent Control Authorities in
the exercise of its revisional power. A plain reading of the
impugned order of the High Court would show that two
grounds were given by the High Court to reject the
application for acceptance of the additional counter
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statement filed by the appellant. The first ground was that
the appellant had filed a belated application for acceptance of
an additional counter statement when examination of P.W.1
was already over. So far as this ground is concerned, we do
not find that delay is a ground for which the additional
counter statement could not be allowed, as it is well settled
that mere delay is not sufficient to refuse to allow
amendment of pleadings or filing of additional counter
statement. At the same time, delay is no ground for dismissal
of an application under Order 8 Rule 9 of the Code of Civil
Procedure where no prejudice was caused to the party
opposing such amendment or acceptance of additional
counter statement which could easily be compensated by
cost. That apart, the delay in filing the additional counter
statement has been properly explained by the appellant. The
averments made in the additional counter statement could
not be raised by the appellant earlier since the appellant was
under the impression that the lease agreement was destroyed
in a fire accident and that he incidentally discovered the
lease files in an old trunk only in October 1996 while he was
cleaning the house for Pooja celebration. This explanation, in
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our view, cannot be rejected. Therefore, the first ground on
which the additional counter statement sought to be rejected
by the High Court in the exercise of its revisional power, in
our view, cannot be sustained. The second ground on which
the High Court had interfered with the concurrent orders of
the tribunal below in accepting the additional counter
statement was that a new plea was raised in the same in
respect of which there was no slightest basis in the original
counter statement filed by the appellant. According to the
High Court, the plea that vacant land was let out to the
appellant is a fundamental alteration of the pleadings already
put forth by the appellant and the appellant cannot be
permitted to introduce totally a new case. The additional
counter statement alleging that there was written agreement
and that the appellant is only a lessee of vacant site
introduces totally a new case which would totally displace
the landlord. The High Court held that such a new plea
cannot be permitted to be taken by permitting the appellant
to file additional counter statement. In our view, this is also
not a ground for which the High Court could interfere with
the concurrent orders of the Rent Control Tribunal and reject
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the application for permission to file additional counter
statement. In our view, even by filing an amendment or
additional counter statement, it is open to the appellant to
add a new ground of defence or substituting or altering the
defence or even taking inconsistent pleas in the counter
statement as long as the pleadings do not result in causing
grave injustice and irretrievable prejudice to plaintiff or
displacing him completely. [See : Usha Balasaheb Swami &
Ors. vs. Kiran Appaso Swami & Ors. (2007) 5 SCC 602].
Therefore, we are unable to agree with the High Court on this
ground as well. It is also well settled that the courts should
be more generous in allowing the amendment of the counter
statement of the defendant then in the case of plaint. The
High Court in its impugned order has also observed that in
order to file an additional counter statement, it would be
open to the defendant to take inconsistent plea. The prayer
for acceptance of the additional counter statement was
rejected by the High Court on the ground that while allowing
such additional counter statement to be accepted, it has to
be seen whether it was expedient with reference to the
circumstances of the case to permit such a plea being put
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forward at that stage. As noted herein earlier, the only
ground on which the High Court had rejected the acceptance
of the additional counter statement was (i) by filing of such
additional counter statement, the appellant was introducing
a new case and (2) the entire trial was to be reopened causing
great prejudice to the respondents whose examination was
completed. It was also observed by the High Court that the
appellant cannot be able to take such inconsistent plea by
filing additional counter statement after cross-examination of
the appellant. In our view, the High Court was in error in
interfering with the concurrent orders of the Rent Control
Tribunal, as from the fact stated we find that no prejudice
was caused to the respondents and even if some prejudice
was caused that could be compensated by cost. As noted
herein earlier, the appellant had already stated in his
application for acceptance of additional counter statement
the reasons for taking such new plea, viz., he could trace out
the lease deed pertaining to the lease only when he was
cleaning the boxes. The respondents have also not disputed
as to the existence of the lease deed only they are disputing
the filing of the additional counter statement at such a
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belated stage. This being the position, we are of the view that
even if the examination of PW-1 or his cross- examination
was over, then also, it was open to the court to accept the
additional counter statement filed by the appellant by
awarding some cost against the appellant. It is also well
settled that while allowing additional counter statement or
refusing to accept the same, the court should only see that if
such additional counter statement is not accepted, the real
controversy between the parties could not be decided. As
noted herein earlier, by filing an additional counter statement
in the present case, in our view, would not cause injustice or
prejudice to the respondents but that would help the court to
decide the real controversy between the parties. In our view,
the High Court was, therefore, not justified in rejecting the
application for permission to file additional counter
statement as no prejudice could be caused to the respondent
which would otherwise be compensated in terms of cost.
8. There is another aspect of the matter. It is well settled
that the High Court in the exercise of its revisional
jurisdiction under Section 25 of the Tamil Nadu Buildings
(Lease and Rent) Control Act, could interfere with the
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concurrent orders of the tribunals below only if it finds that
the findings of the tribunals below were either perverse or
arbitrary, irregular or improper, but if the High Court finds
that the findings of the tribunals below are based on correct
application of the principles and in any way cannot be said to
have acted illegally and with material irregularity, in that
case it cannot be said that the High Court was entitled to
interfere with the concurrent orders passed by the tribunals
below in accepting the application for additional counter
statement filed by the appellants. In our view, the High Court
was also not justified to interfere with the concurrent orders
of the tribunals below, as we find that the tribunals below, on
consideration of the counter statement as well as the
additional counter statement and the application for fixation
of rent and other materials on record, accepted the counter
statement in its discretion and, therefore, it was not open to
the High Court to interfere with the same in the absence of
any perversity or arbitrariness in such findings of the
tribunals below.[See Usha Balasaheb Swami & Ors. vs.
Kiran Appaso Swami & Ors. (2007) 5 SCC 602].
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9. Accordingly, we are of the view that the High Court was
not justified in passing the impugned order and in rejecting
the prayer for acceptance of the additional counter statement
filed on behalf of the appellant. However, such application
must be allowed subject to deposit of cost which is assessed
at Rs.10,000/-. Such cost must be paid or deposited in the
Small Causes Court, Chennai in the name of the respondent
within two months from the date of supply of a copy of this
order to the Small Causes Court, Chennai and in default of
deposit of the aforesaid amount within the time specified
herein above, the additional counter statement filed by the
appellant shall stand automatically rejected. The respondent
shall be entitled to withdraw the aforesaid sum of
Rs.10,000/- from the Court of Small Causes, Chennai
without prejudice to his rights and contentions in the original
case.
10. For the reasons aforesaid, the impugned order of the
High Court is set aside and that of the tribunals below are
restored. The additional counter statement filed by the
appellant be accepted.
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11. For the reasons aforesaid, the appeals are allowed to the
extent indicated above. There will be no order as to costs.
……………………
J.
[Tarun
Chatterjee]
New Delhi; ..................
.......J.
July 07, 2009. [H.L.Dattu]