IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 43 of 2008(E) ----------------------- AGAINST THE ORDER DATED 19/12/2007 IN IA 3055/2003 IN OS.200/1992 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONERS: ---------------------- 1. T.A. THAMPAN, S/O. T.C.ABRAHAM, THYPARAMBIL HOUSE, PARK LANE, KOTTAYAM-1. 2. T.A. SUNNY, S/O. T.C.ABRAHAM, THYPPARAMBIL HOUSE, PARK LANE, KOTTAYAM-1. BY ADV. SRI.T.KRISHNANUNNI(SR) SRI.R.RAJESH KORMATH RESPONDENTS: ------------------------- 1. M.O. MANI, S/O. UTHUP MANI, THANNICKAL HOUSE, THIRUNAKKARA, KOTTAYAM-1, KOTTAYAM DISTRICT. 2. VALSA THAMPI, W/O. THAMPI, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. 3. MANI JOSHUA, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. 4. THOMAS JOSHUA, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. 5. ANNIE JOY, W/O. JOY, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. Kss ..2/- ...2.... WPC.NO.43/2008 E 6. ABRAHAM JOSHUA, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. 7. SUSAN JOSHUA, THANNICKAL HOUSE, COLLEGE ROAD, KOTTAYAM, KOTTAYAM DISTRICT. 8. KUTTIAMMA ABRAHAM, W/O.T.C.ABRAHAM, THYPPARAMBIL, PARK LANE, KOTTAYAM P.O.,KOTTAYAM-1. 9. SHYLA THOMAS, W/O. C.A.THOMAS, CHIRATHALATTU HOUSE, VAKATHANAM P.O., VAKATHANAM KARA, KOTTAYAM DISTRICT. BY ADV. SRI.N.SUKUMARAN - R.1 BY ADV. SRI.V.K.BALACHANDRAN - R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.43/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT DTD. 12/02/1992 IN O.S.NO.200 OF 1992 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF KOTTAYAM. EXT.P2: COPY OF THE WRITTEN STATEMENT DTD. 04/03/1996 FILED BY THE DEFENDANTS 1 TO 3 IN O.S.NO.200 OF 1992 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF KOTTAYAM. EXT.P3: COPY OF THE JUDGMENT DTD.11/06/1999 IN O.S.NO.200 OF 1992 ON THEFILE OF THE COURT OF THE ADDITIONAL SUBORDINATE JUDGE OF KOTTAYAM. EXT.P4: COPY OF THE JUDGMENT DTD. 18/07/2003 IN A.S.139 OF 2000 ON THE FILE OF THE DISTRICT JUDGE, KOTTAYAM. EXT.P5: COPY OF I.A.3055 OF 2003 DTD. 30/10/2003 IN O.S.200 OF 1992 ON THE FILE OF THE COURT SOF THE ADDITIONAL SUBORDINATE JUDGE OF KOTTAYAM. EXT.P6: COPY OF THE COMMON JUDGMENT DTD. 14/08/2005 IN FAO.NO. 136 OF 2005 AND FAO NO.158 OF 2003 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA. EXT.P7: COPY OF THE COUNTER AFFIDAVIT DTD. 10/12/2007 IN I.A.NO.3055 OF 2003 IN O.S.NO.200 OF 1992, COURT OF THE ADDITIONAL SUBORDINATE JUDGE, KOTTAYAM. EXT.P8: CARBON COPY OF THE ORDER DTD. 19/12/2007 IN I.A.NO.3055 OF 2003 IN O.S.200 OF 1992, COURT OF THE ADDITIONAL SUBORDINATE JUDGE, KOTTAYAM. /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.43 of 2008 ------------------------------- Dated this the 28th May, 2008. J U D G M E N T Petitioners are the defendants and first respondent the plaintiff in O.S.No.200/1992, on the file of Additional Sub Court, Kottayam. First respondent had originally claimed eviction by filing a Rent control petition, as R.C.O.P.25/1983 under Section 11 of Kerala Building (Lease & Rent Control) Act, Act 2 of 1965 (for short 'the Act'). Petitioners disputed the title of the first respondent in the rent control petition. Rent Control Court, upholding the bona fides of the dispute of title directed first respondent to approach the Civil Court. It is thereafter O.S.No.200/1992 was filed seeking recovery of possession. In the plaint, recovery of possession was sought contending that first respondent needs the building to conduct a printing press and binding business, which he is conducting in another building contending that that building is proposed to be acquired. Recovery of possession was also sought on the ground of arrears of rent. It was also contended that defendants are not depending on the income derived from the business being conducted in the plaint schedule building for their W.P.(C) No.43/2008 2 livelihood. Defendants in their written statement denied the title contending that based on the unprobated Will, first respondent is not entitled to claim title. The need for recovery of possession for shifting the business was denied. Petitioners also claimed benefit under Sub- section 17 of Section 11 of the Act , contending that their predecessor have been in possession of the property prior to 1937. They also contended that they are depending for their livelihood solely on the income being derived from the business being conducted in the plaint schedule building. The trial court under Ext.P3 judgment dismissed the suit holding that first respondent is not entitled to the decree as the title is based on an unprobated Will. It was challenged before District Court, Kottayam, in A.S.No.139/2000. Under Ext.P4 judgment, learned District Judge found that the Will need not be probated, in view of the subsequent legislation. It was found that first respondent has title. Finding that no issue regarding the grounds provided under Section 11 of the Act was raised or considered, the learned District Judge remanded the suit for fresh disposal after framing the necessary issues restricting evidence to be recorded on the grounds for eviction, under Section 11(2) & (3) of the Act. The order of remand was challenged before this Court in F.A.O.No.136/2005 by defendants 1 and 3, and F.A.O.No.158/2003 by W.P.(C) No.43/2008 3 the plaintiff. Under Ext.P6 judgment, this Court confirmed the order of remand and dismissed both the appeals. Before the appeal against the order of remand was filed, defendants filed Ext.P5 application (I.A.No.3055/2003) under Order VI Rule 17 of the Code of Civil Procedure, to amend the written statement incorporating additional paragraphs 16 to 25. It was opposed by the plaintiff by filing Ext.P7 objection. Under Ext.P8 order, learned Sub Judge dismissed the application finding that the order of remand only enables the parties to adduce evidence on the issues framed by the learned District Judge and there is also a direction to dispose the suit within three months from the date of receipt of copy of the judgment. Ext.P8 order is challenged in this petition filed under Article 227 of the Constitution of India. 2. The learned senior counsel appearing for the petitioners and the learned counsel appearing for the respondents were heard. 3. The learned senior counsel pointed out that there was confusion as to whether in a suit instituted consequent to finding on the bona fide dispute of title under Section 11(1) of the Act, the W.P.(C) No.43/2008 4 grounds for eviction as provided under Section 11 of the Act, is to be established or not, and consequently the grounds for eviction as provided under Section 11 of the Act was neither raised in the plaint nor denied by the defendants in the written statement in the proper perspective. It was pointed out that claim for recovery of possession based on bona fide need of the plaintiff, though met in the written statement, necessary and relevant details were not pleaded and the fact that no issue on the grounds for eviction were framed by the trial court, and first appellate court found that parties did not decide this aspect, and, therefore, remanded the suit, establish that failure to incorporate the necessary details sought to be introduced by Ext.P5 application was due to a bona fide omission, and for the sole reason that there is a direction to dispose the suit within a time limit, trial court should not have rejected the claim for amendment. The learned counsel also submitted that the plea for amendment of the written statement has to be liberally construed, and in such circumstances, amendment sought for under paragraphs 16 to 22 should have been allowed, even if the other paragraphs are not allowed. 4. The learned counsel appearing for the respondents argued that there is no reason to interfere with Ext.P8 order. It was W.P.(C) No.43/2008 5 argued that petitioners are attempting to introduce new plea and facts for evidence by amending the written statement. It was also argued that order or remand does not provide for amendment of the pleadings and only permit to adduce evidence on the issues framed by the first appellate court. 5. Under Ext.P4 judgment, upheld by this Court under Ext.P6 judgment, trial court was directed to decide the issues framed in Ext.P4, viz., the issues regarding the grounds for eviction, provided under Section 11(2) & 11(3) of the Act, as well as the claim of defendants for the benefit of second proviso to Section 11(3) of the Act. In the plaint, though there is no specific plea that the need is bona fide, plaintiff has contended that there is a threat of acquisition of the building in which he is conducting the business, and, therefore, it is necessary for him to shift the business to the plaint schedule building. It was also contended that the plaint schedule building has more advantages. In the written statement, there is no specific denial of these allegations, though it was contended that plaintiff is not entitled to the recovery of possession for conducting the business. By the proposed amendment under paragraph 16, petitioners sought to plead that the need alleged is not bona fide and the advantages W.P.(C) No.43/2008 6 pleaded are not available, and there is no threat of acquisition, and even if there is any acquisition, the entire building will not be acquired, and, therefore, the need alleged is not bona fide. As additional paragraph 17, the plea sought to be introduced is that first respondent is in possession of other buildings owned by him, and he had also obtained possession of other buildings from tenants. Under paragraph 18, plea sought to be introduced is based on second proviso to Section 11(3) of the Act, contending that they have no other means of livelihood, except the business being conducted in the plaint schedule building, and no other building is available in the locality. In fact, in paragraph 15 of the original written statement, petitioners have contended that they are depending on the income being derived from the business being conducted in the plaint schedule building, and there is no other suitable building available in the locality to carry on the business. What is sought to be introduced in paragraph 19 is a denial of the claim for arrears of rent, contending that during the connected litigations, rent was deposited and so there is no arrears. In paragraph 20 to 22, the contentions sought to be raised are that the property obtained by first respondent under the Will, was alienated and, therefore, he has no right to claim recovery of possession. Paragraphs 23 to 25 relate to the identity of the property which the W.P.(C) No.43/2008 7 learned senior counsel submits that petitioners are not pressing. The question is whether defendants are to be permitted to raise the amendment sought for under paragraphs 16 to 22. 6. From Exts.P4 and P6 judgments, it is clear that parties originally proceeded with the trial with the impression that grounds for eviction, as provided under the Act, are not to be established. It could only be the reason why necessary ingredients were not specifically pleaded in the plaint or in the written statement. The question whether first respondent is entitled to a decree for recovery of possession is necessarily to be considered by the trial court, as directed in Ext.P4 judgment, after deciding the entitlement under Section 11(3) of the Act including the second proviso thereunder. The amendment sought under paragraphs 16 and 17 relate to the bona fide need. Even without the said pleading, petitioners-defendants-are entitled to cross examine the plaintiff on those aspects. In such circumstances, permitting defendants to amend the written statement, by introducing paragraphs 16 and 17 will not prejudice the first respondent-plaintiff. As far as paragraph 18 is concerned, those contentions were already pleaded in paragraph 15. There is no necessity to allow the amendment sought for in W.P.(C) No.43/2008 8 paragraph 18. As eviction under Section 11(2) of the Act is sought, contentions raised in paragraph 19 is relevant. The plea sought to be introduced is regarding payment of rent in the connected litigations and no prejudice will be caused by allowing the defendants to raise the amendment sought for as paragraph 19. Paragraphs 20 to 22 are matters for evidence. Therefore, I do not find that it is necessary to grant the permission sought for in paragraphs 20 to 22. Paragraphs 23 to 25 are not pressed by the learned counsel. Petitioners are therefore to be permitted to amend the written statement incorporating paragraphs 16, 17 and 19. To that extent, Ext.P5 application is to be allowed. 7. Ext.P8 order is therefore quashed. I.A.No.3055/2003 is allowed permitting defendants to amend the written statement incorporating additional paragraphs 16, 17 and 19. The fact that amendment sought for under paragraphs 20 to 22 were not allowed will not prevent defendants from cross examining the plaintiff on the alienations alleged, as it will be relevant while deciding the question of bona fides. Learned Sub Judge is directed to dispose the suit, as expeditiously as possible, without any delay, bearing in mind that time limit was fixed even in Ext.P4 order of remand and W.P.(C) No.43/2008 9 Ext.P6 judgment of this Court. Writ petition is disposed of as above. M.SASIDHARAN NAMBIAR, JUDGE nj.