IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 OP(C).No. 2926 of 2011(O) ------------------------- AS.10/2011 of SUB COURT, PALA .................... PETITIONER -------------------- KURIAN JOSEPH, S/O.JOSEPH, MANAGING DIRECTOR, LISSY RUBBERS (P) LTD, PALA, MUNICIPAL TOWN HALL, BUILDING, PALA P.O. BY ADVS. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT: --------------------- MEENCHIL TALUK CO-OP.EMPLOYEES CO-OPERATIVE SOCIETY LTD, NO.665, PALA, REPRESENTED BY THE SECRETARY, MEENACHIL TALUK, EMPLOYEES CO-OPERATIVE SOCIETY, SOCIETY BUILDING, PALA. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 2926 of 2011(O) ------------------------------------ APPENDIX -------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. DATED 23.7.2011, COPY OF THE APPLICATION I.A. NO.1336 OF 2011 IN AS NO.10 OF 2011, SUB COURT, PALA. EXT.P2. DATED 2.8.2011 COPY OF THE COUNTER FILED TO IA N.1336 OF 2011 IN A.S N.10 OF 2011, SUB CURT, PALA. EXT.P3. DATED 10.8.2011, COPY of the ORDER IN IA. NO.1336 OF 2011 IN A.S. NO.10 OF 2011, SUB COURT, PALA. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2926 of 2011 ==================================== Dated this the 05th day of September, 2011 J U D G M E N T Respondent appears through counsel 2. Respondent-plaintiff, a Co-operative Society sued petitioner for eviction from its building contending that in view of the Notification issued by the State Government under Section 25 of the Kerala Buildings (Lease & Rent Control) Act, 1965 (for short, “the Act”) buildings owned by Co-operative Societies are exempted from the purview of the said Act. Learned Munsiff granted a decree for eviction of petitioner. That judgment and decree are under challenge in A.S. No.10 of 2011 which is pending in the court of learned Sub Judge, Pala. In the appeal, petitioner filed an application for amendment of the written statement contending that the Notification relied on by the respondent is not applicable to the respondent since the lease was originally granted by the predecessor-in-interest of the respondent, an individual and going by the Notification relied on by the respondent, only in cases where lease is obtained from the Co-operative Society, its building is exempted from the provisions O.P(C) No.2926 of 2011 -: 2 :- of the Act. Learned Sub Judge held that if the contention is accepted it would amount to bringing in a new case which may result prolonging disposal of the appeal. The application was dismissed by Ext.P3, order which is under challenge. Learned counsel pointed out that what was sought to be raised by way of amendment is a question of law relating to the jurisdiction of court and the question of prolonging disposal of the appeal does not arise. Leaned counsel for respondent supported the order. 3. It is true that while considering the request for amendment it is not necessary for the court to look into the merit of the contentions sought to be raised by way of amendment. But I must bear in mind that the purport of Order VI, Rule 17 of the Code of Civil Procedure is to allow amendment to determine the real question in controversy between the parties. Therefore while considering an application for amendment it is within the power of the court to go into the question whether the purport of amendment is to determine the real question in controversy. In the Notification in question (referred to in page 7 of the Original Petition) it is stated that by virtue of the power conferred under Sec.25 of the Act, Government of Kerala exempts “the buildings owned by the Co-operative Societies” in the State from the O.P(C) No.2926 of 2011 -: 3 :- provisions of Sec.11 of the Act. 4. True that lease in this case was granted by the predecessor-in-interest of the respondent, a private individual in favour of the petitioner and later the building was acquired by the respondent. But what is exempted by the Notification in question is not the buildings constructed by the Co-operative Society or building in respect of which lease is originally granted by Co- operative Society but buildings owned by the Co-operative Society. There is no dispute that the building in question is owned by the respondent-Society. In other words the request for amendment is not for determination of the real dispute in controversy between the parties. I do not find merit in the challenge to the order though not for the reason stated by the learned Sub Judge. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv