| SooperKanoon Citation | sooperkanoon.com/836440 |
| Subject | Tenancy |
| Court | Chennai High Court |
| Decided On | Feb-15-2007 |
| Case Number | C.R.P(NPD) No. 207 of 2002 and C.M.P. No. 2249 of 2002 |
| Judge | R. Banumathi, J. |
| Reported in | 2007(4)CTC111; (2007)5MLJ388 |
| Acts | Tamil Nadu Buildings (Lease and Rent) Control Rules - Rules 12(2) and 28(7); Code of Civil Procedure (CPC) - Order 8, Rule 9 |
| Appellant | Mulla Hussainy Bhai Mulla Akberally and ors. |
| Respondent | Olympic Industries Rep. by Its Prop. Sri. K.B. Sridhar |
| Appellant Advocate | N. Prem Kumar, Adv. for ;P. Rathinadurai, Adv. |
| Respondent Advocate | A. Rajendra Kumar, Adv. for ;G. Vijay Anand, Adv. |
| Disposition | Petition allowed |
| Cases Referred | Atyam Veeraraju and Ors. v. Pechetti Venkanna and Ors. |
R. Banumathi, J.
1. This Civil Revision Petition is directed against the order of the Rent Control Authorities allowing the Application filed under Rule 12(2) and 28(7) of Tamil Nadu Buildings (Lease and Rent) Control Rules r/w Order 8 Rule 9 C.P.C to receive Additional Counter Statement.
2.1. Brief facts necessitated for the disposal of this Revision Petition are as follows:
The Respondent became Tenant under the Petitioners in respect of a portion of the premises bearing Door No. 37, West Mada Church Street, Royapuram, Chennai-13 for non-residential purposes on a monthly rent of Rs. 750/-. Seeking fixation of fair rent of Rs. 10,177/-, the Petitioners / Landlords filed R.C.O.P. No. 2593 of 1994 on the file of XV Judge, Small Causes Court, Chennai. 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 land.
2.2. Denying allegations in the Petition, the Respondent / Tenant filed Counter Statement in January 1995 contending that monthly rent of Rs. 750/- being paid by Respondent is fair rent and that could be fixed as fair rent or alternatively to fix fair rent according to the Report of the Respondent's Engineer.
2.3. Trial commenced and P.W.1 was examined. Evidence of P.W.1 was stretched over from 08.11.1995 to 17.07.1996. At the stage when the matter was adjourned for Respondent's Evidence, the Respondent filed M.P. No. 494 of 1996 seeking permission before the Rent Controller to file Additional Counter Statement raising a new plea that the Respondent is a Tenant of land alone in respect of portion of tenancy premises to the extent of about 600 sq.ft. In the Additional Counter Statement, the Respondent raised new plea that Respondent - Olympic Industries is only a Lessee of land measuring about 600 sq.ft., and Lessee of the room measuring 400 sq.ft., in the main building.
2.4. The Petitioners / Landlords resisted that Application contending that Additional Counter Statement containing new and inconsistent plea raised by the Respondent / Tenant at the belated stage, more particularly after completion of examination of Witnesses cannot be allowed and that it would cause serious prejudice to the Petitioners / Landlords.
2.5. After extracting the contentions of both parties, the Rent Controller allowed the Application on the only ground that opportunity is to be given to the Respondent / Tenant to put forth the defence. Aggrieved by the same, the Petitioners / Landlords preferred R.C.A. No. 257 of 1999. Referring to various decisions, the Appellate Authority found that when the existence of Lease is admitted, the party can file Additional Counter Statement. The Appellate Authority took the view that the averments in the Additional Counter Statement would not alter the position of the parties and that case is Part Heard and the Petitioners / Landlords would have sufficient opportunity to challenge the averments in the Additional Counter Statement. Concurrent findings of the Rent Control Authorities allowing the Application to receive Additional Counter Statement is challenged in this Revision Petition.
3. Assailing the Impugned Order, learned Counsel for the Petitioners has contended that if really Lease was with respect to land alone, the same would have been disclosed by the Respondent / Tenant in the Counter Statement filed at the first instance and belated filing of Counter Statement would only expose the falsity of the claim. Drawing the attention of the Court to various correspondence between parties, learned Counsel for the Petitioners has submitted that not even a whisper was made regarding lease of vacant land. Placing reliance upon number of decisions, it was submitted that Additional Counter Statement raising new and inconsistent plea cannot be allowed. Arguing further, learned Counsel for the Petitioners has submitted that any additional plea to be received at a later stage would cause serious prejudice to the Petitioners and parties would be totally dislodged altering their position.
4. Learned Counsel for the Respondent has contended that there is no inconsistent plea in the Additional Counter Statement. Placing reliance upon the decision reported in 2000 (2) L.W. 313 learned Counsel for the Respondent has contended that the Courts should be more generous in allowing Amendment in the case of Written Statement since the Respondent has right to take alternative plea in the defence.
5. I have carefully examined the records and given thoughtful consideration of the submissions of both parties.
6. In the Rent Control Petition, it is the definite case of the Petitioners that the demised premises comprised of the following:
Plinth of Madras TerracedBuilding .... 960 sq.ftPlinth of Zinc RoofedBuilding .... 390 sq.ftVacant land .... 510 sq.ft-----------1860 sq.ft.-----------
On the above, fair rent has been claimed at Rs. 10,177/- calculating the building value and market value of the land as noted below:
Building Value .... Rs. 87,681/-Market value for land .... Rs. 9,30,000/--------------Rs. 10,17,681/--------------Fair rent at 12% .... Rs. 10,176.81(1017681 x 12 x 1)(100 12)Rounded off .... Rs. 10,177/-
7. Total cost of construction of a building shall be made up of three ingredients viz.,
i. Cost of the site in which the building is constructed;
ii. The cost of construction of the building; and
iii. The cost of provision of any one or more of the amenities specified in Schedule I as on the date of Application for the fixation of fair rent.
Value of the building, if any, constructed by the Tenant on vacant land let out by the Landlord has to be treated as vacant land let out and calculated as per first Proviso to Section 4 Sub-section (4). Excess portion of vacant land beyond 50% of Building thereon is to be treated as Amenity under Entry 15 of Schedule I of the Act.
8. In the Counter Statement filed by the Respondent in the first instance, it was simply bare denial of allegations in the Petition. No specific plea had been raised that Respondent / Tenant is a Lessee of land measuring 600 sq.ft and Lessee of room measuring 400 sq.ft. in the main building. In the Counter Statement, the Respondent has alleged that 'he was carrying out periodical repairs and maintenance work at his own costs to the building to maintain it in a proper fit and sound condition especially after major fire accident.' Further, in the Counter Statement, valuation of Building and Land was denied as exaggerated. Further stating that unjustified claim of the Petitioners / Landlords cannot be taken note of by the Court, in the Counter Statement, the Respondent / Tenant pleaded that monthly rent of Rs. 750/- now being paid by the First Respondent is fair and requested the Court to fix fair rent at the rate of Rs. 750/- per month or to fix the fair rent as per Report of the Respondent's Engineer, enclosed along with the Counter.
9. In the Additional Counter Statement, the Respondent / Tenant has taken totally a different stand. In the Additional Counter Statement, the Respondent has pleaded that the Landlord M/s.Goolamally Estates entered into a Written Lease Agreement on 03.02.1981 and confirmed the subject matter of lease as 'A PIECE OF LAND' in the Schedule to the said Agreement. In the Additional Counter Statement, the Respondent has raised the plea that only land measuring about 600 sq.ft was leased to Olympic Industries for their business with consent and permission granted to the Tenant to put up sheds with Asbestos roofings as per Tenants requirement. The sum and substance of averments in the Additional Counter Statement are:
i. Only a piece of land measuring 600 sq.ft., in the Schedule to the Agreement dated 03.02.1981 was leased out;
ii. Permission was granted to the Tenant to put up sheds with Asbestos roofings as per Tenant's requirement and Tenant had put up construction;
iii. Subsequent to the Written Lease Agreement, the Landlord gave one room measuring 400 sq.ft., in the main building and monthly rent payable for the said room was fixed at Rs. 600/-;
iv. The Respondent / Tenant is paying Rs. 150/- towards land rent and Rs. 600/- towards monthly rent for the room leased on and from 01.01.1983.
In short, the Respondent raised the plea that he is only a Lessee of land measuring 600 sq.ft and Lessee of the room measuring 400 sq.ft in the main building.
10. As noticed earlier, the value of the building if any constructed by the Tenant on vacant land let out by the Landlord has to be treated as vacant land let out and calculated as per first Proviso to Sub-section (4) of Section 4. The building, if any, allowed to be constructed on vacant land let out by the Landlord is not building let out to the Tenant and it cannot be valued as 'building' for the purpose of fixation of fair rent.
11. Plea of Respondent that he is only a Lessee of vacant site and that he has put up sheds on vacant land let out by the Landlord is a vital factor for fixation of fair rent. The cost of construction of the building and the cost of site in which the building is constructed are being essential ingredients for fixation of fair rent. The averments raised in the Additional Counter Statement ought to have been pleaded in the Counter Statement filed at the first instance. Important facts regarding the extent of the building let out ought to have been stated specifically and clearly in the Counter Statement filed in February 1995. In a Petition for fixation of fair rent, the Tenant ought to have raised a specific plea regarding the extent of the building leased. Raising the plea that only vacant land measuring 600 sq.ft was let out by Additional Counter Statement at the close of trial would dislodge the Petitioners / Landlords, whose evidence was already completed. Appellate Authority was not right in saying that the averments in the Additional Counter Statement would not cause any surprise or serious prejudice to the Petitioners.
12. Making a New Plea:
The plea raised in the Additional Counter Statement is nothing but making out a case for which there is no slightest basis in the Counter Statement originally filed. The plea that vacant land was let out to the Respondent is a fundamental alteration of the pleadings already put forth by the Respondent and the Respondent cannot be permitted to introduce totally a new case. The Additional Counter Statement alleging that there was Written Agreement and that the Respondent is only a Lessee of vacant site introduces totally a new case, which would displace the Petitioners / Landlords. Posing a wrong question that the Respondent is at liberty to adopt an inconsistent plea, the Authorities below have adopted an erroneous approach, which cannot be sustained.
13. Contending that Courts should be more generous in allowing Amendment in the case of Written Statement than in the case of Plaint and that the Respondent has a right to take alternative plea in defence, learned Counsel for the Respondent has placed reliance upon the decision reported in B.K.N. Pillai v. P. Pillai and Anr. 2000 (2) L.W. 313. Learned Counsel for the Respondent has also placed reliance upon the decisions reported in Sri Srinivasmurthy Mandiram v. Gnanasoundari : AIR2004Mad518 , Muthusamy v. Thangaraj 2005 (5) C.T.C. 785 and S. Muruvappan v. Sivapalani 2005 (3) M.L.J. 490.
14. In its lengthy order, the Appellate Authority proceeded on the footing that the Respondent is entitled to take an inconsistent plea and referred to the decisions reported in Vardhya Shyam Sunder Joshi v. Jain Vishwa Bharti Ladnu , Heeralal v. Kalyan Mal : AIR1998SC618 and N. Srinivasan v. Muthammal : (1998)IIIMLJ466 .
15. Undoubtedly, a Defendant / Respondent is entitled to file a Written Statement containing inconsistent plea. But, various other considerations would have to be taken into account when a Petition is filed for permission to file Additional Written Statement / Counter Statement containing pleas, some of which are inconsistent with the pleas taken in the Original Counter Statement. Where a new inconsistent plea is put forward in an Additional Counter Statement, it has to be considered whether it is expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage.
16. In the decision reported in Murthi Gounder v. Karuppanna A.I.R. 1976 MAD 302 original Written Statement was filed stating that new road was laid only five months before filing of the Written Statement. While so, Additional Written Statement was filed making out a case of easementary right of pathway extending over 12 years on the basis of information acquired from Panchayat record and contending that there was a cart track over Plaintiff's land and that of others which was being used by the villagers for over 12 years as an easement. Confirming the order of the lower Court refusing permission to file Additional Written Statement, in the said decision, PAUL, J. has held as : '....This is not a case where by mere inadvertence, certain pleas were not put forward. This is a case where nearly two years after having filed his written statement, the first defendant had acquired some further information and wanted to set up a case which is different from the case which he had originally set up in his written statement. Considering the stage at which such an application has been filed, undoubtedly, prejudice would be caused to the Plaintiff who will now be forced to file a reply statement and as a consequence thereof, fresh and different issues will have to be framed and the trial would have to begin once over again....'
17. Holding that pleadings cannot be filed piecemeal, in the decision reported in Poongavanam Ammal v. Navaneetham Ammal 2000 (I) L.W. 821 S.S.SUBRAMANI, J has held thus:. It is true that defendant may be in a position to take inconsistent stand. But that is not the question that has to be decided in this case. Under Order 8 Rule 9 of Code of Civil Procedure, no pleadings after written statement filed can be received except with the leave of the Court. Naturally, when leave is sought for, Petitioner will have to explain why the present contention was not raised on the earlier occasion. Pleadings cannot be filed piecemeal. Even if inconsistent stand could be taken, that does not follow that defendant can file Written Statement at any time as he chooses and even without showing sufficient cause....
18. In the decision reported in Heeralal v. Kalyan Mal and Ors. 1997 (10) SUP 56 Amendment was sought for in the proposed Additional Written Statement, which was of such a nature, which would displace the Plaintiff's case. The Supreme Court has held that receiving of Additional Written Statement cannot be allowed.
19. Referring to Heeralal's case (cited supra), in the decision reported in N. Srinivasan v. Muthammal : (1998)IIIMLJ466 , K.P. Sivasubramaniam, J., has held that '....Application for filing Additional Written Statement raising alternative plea cannot be allowed since it raises inconsistent or alternative plea depriving plaintiff benefit of statutory presumption....'
20. In the decision reported in Yashoda Raju v. Kuselan : AIR2004Mad106 , in the Counter Affidavit the Tenant has admitted the Title of the Landlord. Later, Application was filed seeking permission to file Additional Counter Affidavit, disputing the Title of the Landlord. Following the Judgment of the Supreme Court in Atyam Veeraraju and Ors. v. Pechetti Venkanna and Ors. : [1966]1SCR831 , it was held that Tenant cannot be allowed to take such inconsistent plea at a later stage by denying the Title of his Landlord. However, defective it may be.
21. After examination of P.W.1 was complete, Additional Counter Statement was filed introducing new case. If Additional Counter Statement is to be received, the entire Trial has to be reopened causing great prejudice to the Petitioners, whose examination is already completed. The Respondent cannot be allowed to take inconsistent plea by filing Additional Counter Statement after the cross-examination of the Petitioners.
22. Delay:
According to the Respondent, the averments in the Additional Counter Statement could not be raised earlier since the Respondent was under the impression that the Lease Agreement was destroyed in the 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. Lease of building or lease of vacant land is such a fundamental fact, atleast there ought to have been mention about the same in the Counter Statement filed in February 1995. In the Counter Statement filed at the first instance, absolutely there is no whisper regarding Written Lease Deed and semblance of any reference to the terms of the Written Lease Agreement.
23. Undoubtedly, mere delay is not sufficient to refuse to allow Amendment of pleadings or Additional Counter Statement. Delay is no ground for dismissal of an Application under Order 8 Rule 9 C.P.C, only where no prejudice would be caused to the opposite party and they can be compensated by costs. When the Additional Counter Statement is not only belated, but also attempts to introduce a new plea, the same cannot be allowed.
24. As noticed earlier, reason for delay is not acceptable. In the Counter Statement filed at the first instance, the Respondent has admitted Lease of the Building and sought for fixation of fair rent on the basis of the Report of the Respondent's Engineer, which the Respondent has enclosed along with his Counter Statement. New facts are sought to be introduced after P.W.1's evidence was completed. New plea introduced at a very late stage cannot be allowed. This is all the more so, in the Rent Control Proceedings, which is only a summary proceeding. The Application should not have been allowed by the Rent Control Authorities.
25. Exercising Revisional jurisdiction under Section 25 of the Act, the High Court can interfere if the finding of Courts below is irregular and improper. Where the High Court finds that the lower Courts have not acted legally and findings are not based on correct Application of the Principles, the High Court can correct the same. Allowing the Application to receive Additional Counter Statement at the belated stage is improper, not based on correct application of the principles. The Impugned order of the Authorities cannot be sustained and the same is liable to be set aside.
26. For the foregoing reasons, the Impugned order dated 12.09.2000 of the VIII Judge, Small Causes Court, Chennai in R.C.A. No. 257 of 1999 (arising out of R.C.O.P. No. 2593 of 1994 on the file of XV Judge, Small Causes Court, Chennai) is set aside and this Civil Revision Petition is allowed. No costs. The connected C.M.P. No. 2249 of 2002 is closed. The Rent Controller is directed to dispose of R.C.O.P. No. 2593 of 1994 expeditiously in accordance with law.