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Madras High Court
Rama Nataraja Dikshidar vs V.Natarajan on 30 November, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.11.2010

CORAM:

THE HONOURABLE MR.JUSTICE R.S. RAMANATHAN

CRP.PD.Nos.4232 and 4233 of 2010
and
M.P.No.1 of 2010

Rama Nataraja Dikshidar			... Petitioner in both CRPs.

Vs.

V.Natarajan				... Respondent in both CRPs.

Prayer in CRP.PD.No.4232 of 2010 : Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the Fair and Decreetal order in I.A.No.19686 of 2010 in O.S.No.5738 of 2010, dated 03.11.2010 on the file of XVII Asst. City Civil Court, Chennai and allow the Revision.

Prayer in CRP.PD.No.4233 of 2010 : Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the Fair and Decreetal order in I.A.No.19963 of 2010 in O.S.No.5738 of 2010, dated 12.11.2010 on the file of XVII Asst. City Civil Court, Chennai and allow the Revision.

For Petitioner : Mr.S.K.Rakhunathan in both CRPs.

For Respondent : Mr.M.Balasubramanian in both CRPs.

COMMON ORDER

The defendant in O.S.No.5738 of 2008 on the file of the 17th Assistant Judge, City Civil Court is the revision petitioner. The respondent / Plaintiff filed the suit for recovery of possession stating that the revision petitioner is a licensee and the license period was over, but, he failed to quit the premises. In the suit, the revision petitioner filed a statement that he is a tenant of the premises as per the lease agreement, dated 15.12.2005 and has also taken the plea that the suit filed by the respondent / plaintiff is not maintainable and the respondent has to workout his remedy under the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. After PW1 filed a proof of affidavit, the revision petitioner filed I.A.No.19686 of 2010 under Order 6 Rule 17 to amend the written statement to the effect that in para 13, to add that “the Court has no jurisdiction to try the suit and only the Rent Control Court has got jurisdiction to try this matter” and in para 14, instead of the sentence, namely ‘there is no bonafide on the part of the defendant’, it must be modified as “there is no bonafide on the part of the plaintiff”. This application for amendment was dismissed and as against the same, this revision is filed.

2. It is submitted by Mr.S.K.Rakhunathan, learned counsel for the revision petitioner that earlier, the revision petitioner filed O.S.No.3206 of 2008 for bare injunction. Thereafter, in the suit in O.S.No.5738 of 2008, though the defendant raised the plea that the suit is not maintainable and no issue was framed, he filed the application to amend the written statement to add that the City Civil Court has no jurisdiction to entertain the suit and there is also typographical error in para 14, instead of stating “there is no bonafide on the part of the plaintiff”, it was wrongly typed and therefore, those two amendments were sought to be made, but, without appreciating the same, the Court below dismissed the application. The learned counsel further submitted that even without raising the plea, he is entitled to argue that the Civil Court has no jurisdiction and only the Rent Control Court has got jurisdiction and only by way of abundant caution that plea was sought to be added in the written statement and therefore, the amendments of the written statement ought to have been allowed.

3. Mr.M.Balasubramanian, learned counsel for the respondent submitted that the conduct of the revision petitioner does not deserve interference by this Court. He submitted that on earlier occasion, when the case was listed for trial, the Revision Petitioner let the suit decreed exparte and thereafter, filed an application to set aside the ex-parte decree and when the case was listed for evidence and after PW1 was examined in chief, the Revision Petitioner filed an application under Order 26 Rule10 for appointment of Advocate Commissioner and that was also dismissed. Thereafter, this application was filed for amendment of written statement. This would show that the revision petitioner is only interested in protracting the litigation and he has no bonafide interest to contest the suit. Even after the dismissal of the application to amend the statement, he has filed an application to reopen and recall the witness and that would prove that the defendant is not interested in contesting the case. He further submitted that the order of the Court below does not deserve any interference.

4. Heard both sides.

5. CRP No.4232 of 2010 is filed by the Revision petitioner as against the order of the Court below refusing to allow the application for amendment. The application for amendment was filed by the Revision Petitioner / defendant to add one sentence in para 13 that the Civil Court has no jurisdiction to try the suit and only the Rent Controller Court has got jurisdiction to try the matter. Another amendment sought to be made was instead of the sentence that “there is no bonafide on the part of the defendant”, it must be modified as “there is no bonafide on the part of the plaintiff”. Insofar as the second part of the amendment is concerned, it is a clear case of typographical error and therefore, there cannot be any objection for allowing the amendment. Insofar as the first part is concerned, it is the consistent plea of the revision petitioner that he is a tenant of the premises. In the suit in O.S.No.3206 of 2008, he has claimed his right under the lease agreement. In the present suit also in para 2 of the written statement, he has stated that he entered into the lease agreement with the plaintiff on 15.12.2005. In para 10, it has been stated that the defendant / Revision Petitioner has not violated the terms of the agreement, dated 15.12.2005. A reading of the entire statement would make it clear that the defendant is contesting the suit on the ground that he is a tenant under the respondent. Further, in para 13, he has also stated that the suit filed by the plaintiff is not maintainable and he has to work out his remedy only under the Tamil Nadu Buildings (Lease & Rent Control) Act. Therefore, the proposed amendment that the Civil Court has no jurisdiction and only the Rent Control Court has got jurisdiction is only supplementing the stand of the defendant and he is not introducing any new case for the first time. Therefore, by allowing the amendment no prejudice would be caused to the plaintiff / respondent.

6. As rightly submitted by the learned counsel for the revision petitioner that even in the absence of amendment, having regard to the plea taken in the written statement, it is open to the revision petitioner to contend that the Civil Court has no jurisdiction. In this case, though the Trial has commenced, having regard to the fact that the proposed amendment is only supplementing the stand taken by the defendant in the written statement and the respondent / plaintiff would not be taken by surprise by the proposed amendment, I am inclined to allow the application for amendment. The Court below without appreciating the merits of the case erred in dismissing the application on the premises that the statement was filed longback and the amendment was filed after the commencement of trial. The defendant is not trying to introduce a new case and only trying to defend his case effectively. Hence, the order of the Court below is set aside and the revision petition in CRP No.4232 of 2010 is allowed.

7. In CRP No.4233 of 2010 , the Defendant in O.S.No.5738 of 2008 is the revision petitioner. The revision petitioner filed the application in I.A.No.19963 of 2010 under Order 7 Rule 11 to reject the plaint on the ground that the Civil Court has no jurisdiction to try the suit and the suit is maintainable only before the Rent Controller. That application was dismissed and as against the same, the revision is filed.

8. It is contended by the learned counsel for the revision petitioner that admittedly the revision petitioner is a tenant in the suit property and therefore, for evicting the revision petitioner, the respondent / landlord has to file proceedings only under provisions of the Tamil Nadu Building and Lease Agreement and he cannot maintain a suit for eviction.

9. According to me, the contention of the learned counsel for the revision petitioner cannot be accepted. It is the case of the plaintiff that the defendant / revision petitioner is only a licensee and he never admitted that the revision petitioner is the licensee under him. Further, while considering the application under order 7 Rule 11, the averments in the plaint has to be taken into consideration, to find out whether the revision petitioner is a lessee or licensee and the same can be decided only during trial and it cannot be decided at this stage. Hence, I do not find any reason to interfere with the order of the Court below. The revision petition in CRP.No.4233 of 2010 is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

ogy
To

The Additional District Munsif Court,
Mayiladuthurai


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