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Bombay High Court
Padmaranjana W/O Arunkumar … vs Dilip S/O Ramrao Tote And Anr. on 29 August, 2002
Equivalent citations: 2003 (2) BomCR 750, 2002 (4) MhLj 403
Author: S Bobde
Bench: S Bobde


JUDGMENT

S.A. Bobde, J.

1. This petition is directed against the order dated 28th November, 2001, passed by the Additional Collector, an appellate authority, under the C. P. and Berar Letting of Premises and Rent Control Order, 1949, by which the appellate authority has allowed the respondent No. 1 to amend his written statement.

2. The facts are the petitioner/landlord has applied for permission to terminate the tenancy of the respondent No. 1-tenant, under Clause 13(3)(i)(ii) and (v) of the Rent Control Order, before the Rent Controller, Amravati.

3. To the said application filed by the petitioner-landlord, the respondent-tenant has filed his written statement on 14-7-1998. In the said written statement he annexed the Schedule, showing the payment of rent. The schedule indicates that the rent has been paid at one time for a long period ranging from 5 months to 1 year. By the Written Statement, the respondent-tenant has claimed that he is running a retail medical shop-cum-godown and still carrying on the said business at the premises in question.

4. After the petitioner-landlord’s evidence was over, the respondent-tenant moved an application for amendment to the Written Statement, by which the respondent sought to incorporate paragraphs 7-A and 8-A. In proposed

amendment para 7-A, the respondent-tenant pleaded that there was a practice between the petitioner and the respondent to accept the rent in lump sum. By para No. 8-A of the proposed amendment, the respondent-tenant pleaded that he is carrying on business of Medical shop of Ayurvedic medicines in the said premises and that the members of his family are dependent upon the income derived from the said shop.

5.The proposed amendment, as sought for by the respondent-tenant to the written statement, was opposed by the petitioner. The Rent Controller, Amravati, rejected the amendment application, by order dated 18-10-2000. The respondent-tenant, thereafter carried in appeal against the rejection of the amendment to the written statement, to the appellate authority, i.e. Additional Collector, Amravati, who by the order dated 28-11-2001, allowed the appeal and permitted the amendment, as sought for.

6. Mr. Bhamburkar, learned counsel appearing on behalf of the petitioner, submitted that there is no power vested in the appellate authority under Clause 21 of the Rent Control Order, so as to entertain the appeal against an order rejecting or allowing amendment to the pleadings, passed by the Rent Controller. Clause 21 of the Rent Control Order read thus :

“21 (1) Any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to him, present an appeal in writing to the collector of the district:

Provided that in computing the period prescribed above, the time properly taken in obtaining a copy of the order complained of shall be excluded.

(1-a)………………………………………………………..

(2)………………………………………………………….

(2-a) The Collector, may either on his own motion at any time or on the application of any party interested made within ninety days of the passing of an order, review any order passed by himself or any of his predecessors in office and pass such order in reference thereto as he thinks fit so, however, that no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard in support of such order.

(3)………………………………………………………….”

7. Having heard the learned counsel and having considered Legislative Scheme of the Rent Control Order. I am of view that phrase “Any person aggrieved by an order of the Controller” will include an order, allowing or rejecting the amendment to the pleadings. The words ‘an order’ simply contemplate ‘an order of the Controller’, and of necessity, every order of the Controller. Of course, the order must be one which directs a party to do or forbear from doing an act and must affect some right of the parties though this qualification does not appear from Clause 21 of the Rent Control Order. I am of view that this qualification must be taken to be implicit since otherwise, even the order granting an adjournment to one of the parties would be appealed against.

8. Moreover, it is clear that legislative Scheme of the antiquated Rent Control Order is that the landlord, who seeks to exercise his right to determine

the lease, is required to obtain a permission from the Rent Controller under Clause 13, for which, he has to make an application, contemplated by Sub-clause (2) of Clause 13. Thereafter, if the Rent Controller satisfies, after hearing the parties, that certain conditions laid down in Sub-clause (3) exist, he must grant permission to the landlord to give notice to determine the lease. Clause 13 is reproduced as below for the sake of convenience.

“13. (1) No landlord shall, except with the previous written permission of
the Controller, —

(a) give notice to a tenant determining the lease or determining the lease if the lease is expressed to be determinable as his option; or

(b) where the lease is determinable by efflux of the time limited thereby, require the tenant to vacate the premises by process of law or otherwise if the tenant is willing to continue the lease on the same terms and conditions.

…………………………………………………………”

The Rent Control Order which is issued under Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946, which inter alia, provides for fixation of rent and other matters. It requires applications contemplated by the Rent Control Order to be made in the first instance before the Rent Controller and thereafter provides for an appeal against the order of the Controller to the Collector of the district.

9. The Rent Control Order does not make elaborate procedural provisions. It does not expressly make Code of Civil Procedure applicable to the proceedings before the authorities under the Rent Control Order. Clauses 18-A and 19, which have some bearing on procedure and which regulate procedure to some extent, provide as follows:

“18-A. (1) Every Written application to the Rent Controller shall be accompanied by as many true copies thereof on the plan paper as there are non-applicant.

(2) Every notice issued by the Rent Control to the parties shall be registered post.

(3) Every notice issued by the Rent Control to a non-applicant shall be accompanied by a copy of the written application filed before him.

(4) Every notice referred to in Sub-clause (3) shall specify a date before which the non-applicant shall file a reply to the application before the Rent Controller.

(5) In the event of an adjournment, which is rendered necessary on
account of any default of either party, the Rent Controller may direct the
defaulting party to pay the costs of the other party occasioned by the
adjournment.

19. In any proceeding before the Controller, any party may appear by a
legal practitioner or an agent authorized in writing in that behalf.”

10. In any case, it is clear that the Rent Control Order does not make any express provision for amendment of the pleadings, i.e. application or written statement, that may be filed by the parties. It has been a long standing practice of Rent Controller to entertain application for amendment of pleadings. These

applications of necessity, are either allowed or rejected by the Rent Controller by an order. There is no other way that can be done.

11. Having regard to the Scheme, I am of view that the appellate provision contained in Clause 21 must be given its plain and natural meaning and must be construed, so as to allow an appeal against an order, allowing or rejecting the amendment to the application or written statement, since Clause 21, provides any person aggrieved by an order of the Controller to present an appeal. There is nothing in Clause 21 or the Legislative Scheme, which warrants placing restrictive meaning to the words ‘an order’, so as to mean only final order, as contended by Mr. Bhamburkar, learned counsel for the petitioner.

12. Mr. Bhamburkar, learned Counsel, relied on a judgment of this Court in the case of Chiranjitsingh v. Appellate Dy. Collector, Nagpur, reported in 1969 Mah.L.J. Notes of Cases (47) pg. 29. In that case, the learned Single Judge held that: the words “an order of the Controller” in Clause 21(1) must be read as referring to the orders which the Rent Control is authorized to pass under the provisions preceding that Clause such as Clauses 5, 9, 12, 13 and 16. The learned Single Judge proceeded to hold that the word ‘an order’ will not include a finding, which is given while proceeding is still pending. It is not possible to accept the contention advanced on the basis of this decision that therefore, the word ‘an order’ will not include an interim order or order which is not final, which allows or rejects amendment of pleadings. I read over that decision only as an authority for the proposition that a finding given on the issue in the course of proceedings cannot be construed to be ‘an order’. In that case, the petitioner was tenant, the Rent Controller, before proceeding to decide other issues, did not direct the parties before him to do or forbear from doing anything and had not passed any final order. It is in that context, that this Court observed that: when the final order based on such finding, is passed, an appeal will lie against the final order. I cannot read that decision as an authority for the negative proposition that no appeal shall lie against any order except the final order.

13. In the circumstances of the case, I am of view that the appeal under Clause 21 of the Rent Control Order , would be tenable against any order passed by the Rent Controller, provided that order directs the party to do or forbear from doing something and affects some rights of the parties. Specifically an appeal is tenable against an order allowing or rejecting the amendment to pleadings.

14. Mr. Bhambhurkar, learned Counsel, next contended that on merits the amendment sought by the respondent-tenant, ought not to have been allowed, since it was sought for after the petitioner had closed her evidence. This was a matter, which was essentially for the authority under the Act to decide. Having perused the original written statement and the proposed amendment to the written statement. It appears that the proposed amendment was merely clarificatory in nature and sought to be intended to elaborate a stand already taken by the respondent. It does not appear that any prejudice has been caused to the petitioner by the fact that the amendment has been allowed. In any case, no case is made out for interference with the order, allowing amendment by the Rent Controller. In the result, there is no merit in the petition, which is hereby dismissed.


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