Dismissed

M.M Francis v. Shaji V.P

Kerala HC26 Nov 2018OP (RC)/128/2018

Case brief

AI extract

What is this about?

The High Court dismissed a Rent Control petition challenging the dismissal of interlocutory applications. The lower court correctly rejected amendments filed post-trial commencement, finding the petitioner was aware of the consent deed and permanent tenancy claims earlier, causing prejudice to the landlord.

What did the court decide?

The O.P.(RC) challenging the dismissal of interlocutory applications is dismissed.

M.M Francis Vs Shaji V.P — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.HARILAL

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THE HONOURABLE MRS. JUSTICE ANNIE JOHN

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MONDAY ,THE 26TH DAY OF NOVEMBER 2018 / 5TH AGRAHAYANA, 1940

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OP (RC).No. 128 of 2018

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AGAINST THE ORDERS DATED 21.8.2018 IN IA2 2034/2018, IA 2244/2018, IA 2035/2018 AND IA 2243/2018 IN RCP 2/2016 of MUNSIFF COURT,MUVATTUPUZHA

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PETITIONER/PETITIONER/RESPONDENT:

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M.M FRANCIS AGED 55 YEARS S/O MATHAI, MULACKAL HOUSE, VAZHAPPILLY KARA, VELLORKUNNAM VILLAGE, MULACKAL PLYWOOD, VETTUKATTIL BUILDING, MARKET P.O., MUVATTUPUZHA - 686673.

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BY ADVS.SRI.P.B.KRISHNAN SRI.MANU VYASAN PETER SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE

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RESPONDENT/RESPONDNET/PETITIONER:

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V.P.SHAJI AGED 58 YEARS S/O PAULOSE, VETTUKATTIL HOUSE, MUVATTUPUZHA KARA, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA - 686661.

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BY ADVS.SRI.P.FAZIL SMT.JAYASREE MANOJ SRI.JITHIN PAUL VARGHESE SRI.SAJU THALIATH SRI.V.S.SREEJITH SRI.A.C. THOMAS ADHIKARA

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THIS OP (RENT CONTROL) HAVING BEEN FINALLY HEARD ON 26.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O.P(RC).128/18

JUDGMENT

K. Harilal, J.

This O.P.(RC) has been filed challenging the legality and correctness of Exts.P13 and P14 common orders passed by the Rent Control Court, Muvattupuzha. Ext.P13 is a common order passed in I.A.No.2034/2018 and 2244/2018 in RCP No.2/2016 and Ext.P14 is a common order passed in I.A.No.2035/2018 and 2243/2018 in the said R.C.P. I.A.No.2035/2018 was an application seeking amendment to the objection filed by the petitioner/tenant and I.A.No.2243/2018 was another application to amend the pleadings so as to incorporate the claim of permanent tenancy.

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R.C.P. No.2/2016 was filed against the petitioner herein seeking an order of eviction under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act' for short). When the case was posted to 8.8.2018 for examination of the petitioner, on that day the petitioner herein filed

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O.P(RC).128/18

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I.A.No.2035/2018 under Order VI Rule 17 of the Code of Civil Procedure to amend the plaint for incorporating a plea that the respondent/landlord has executed a consent deed to continue the business of the petitioner herein till 31.3.2030. According to the respondent, the said consent deed could not be produced by the petitioner at the time when objection was filed in the Rent Control Petition and could not incorporate the pleadings relating to the consent deed. I.A.No.2243/2018 was filed on 8.8.2018 so as to incorporate the contention that he got right of permanent tenancy in the tenanted premises and thereby he is not liable to be evicted under Section 11(3) of the Act.

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The respondent filed a counter affidavit against both petitions contending that the application is not maintainable as per the proviso to Order VI Rule 17 of the C.P.C. as the petitions have been filed after the commencement of trial. According to the respondent, the petitioner did not plead that he was unaware about the consent letter at the time when objection was filed and further that the consent deed is a forged one.

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O.P(RC).128/18

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I.A.No.2243/2018 was filed with an averment that pending trial due to physical ailment of the petitioner's Advocate, he could not continue his engagement and therefore another counsel was engaged and he found out that some material and important aspects were not pleaded in the objection. The respondent/petitioner filed objection to I.A.No.2243/2018 also taking similar contentions as that of in I.A.No.2034/2018.

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However, after considering the rival contentions, the Rent Control Court dismissed both the Interlocutory Applications by Ext.P14 on a finding that the applications are highly belated and hit by the proviso to Order VI Rule 17 of the C.P.C. I.A.No.2034/2018 and 2244/2018 were also dismissed for the very same reasons stated in Ext.P14 and further stating that the production of documents at the fag end of the trial, to the surprise of the opposite parties causing serious prejudice to his case, cannot be permitted. Therefore, recalling of PW4, for further cross-examination also cannot be allowed. The aforesaid findings, whereby the Rent Control Court passed Exts.P13 and P14, are

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O.P(RC).128/18

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challenged in this OP(RC).

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Heard the learned counsel for the petitioner and the learned counsel appearing for the respondent.

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Going by Ext.P14, it could be seen that the Rent Control Petition was listed for trial to 7.1.2018 and thereafter the case was adjourned to 5.6.2018, 9.7.2018, 12.7.2018 and the trial was commenced on 12.7.2018. On that day, the petitioner in the Rent Control Petition and one witness on his side were examined as PW1 and PW2 and the case was posted to 16.7.2018 for the evidence of the respondent. On that day the trial was adjourned to 8.8.2018 on the application of the counsel for the respondent. On 8.8.2018, when the case was posted for the evidence of the petitioner the petitioner has filed I.A.No.2035/2018. Subsequently, on 14.8.2018, the petitioner has filed the second amendment application, as I.A.No.2243/2018. Thus, admittedly, the aforesaid amendment applications were filed after the commencement of trial. In view of Order VI Rule 17 of the C.P.C., the question to be considered is whether the

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O.P(RC).128/18

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petitioner has succeeded in proving that in spite of due diligence he could not have raised the matter before the commencement of trial.

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Going by the amendment applications, it could be seen that the matter sought to be introduced by way of amendment is that the respondent/landlord has executed a consent deed to continue the business of the petitioner till 31.3.2030. As rightly pointed out by the respondent, the petitioner has no case that the petitioner was unaware about the existence of a consent deed allegedly executed in his favour on 21.3.2011. Therefore, it was incumbent upon him to prove beyond doubt as to the reason why the same was not produced before the commencement of trial. No reason was stated for the belated production of the same before the commencement of trial. So also, no reason was stated as to why the said consent deed was not referred to in the objection to the Rent Control Petition or was not produced earlier before the commencement of trial. So, there is no reason to believe that he has no knowledge about the same. He was fully aware of the existence of the

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O.P(RC).128/18

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consent deed, if it was a genuine one.

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As regards the incorporation of the pleadings of permanent tenancy also, there is no reason why it was not pleaded earlier when the objection was preferred and filed. As rightly observed by the Rent Control Court, no prudent man will omit to state the right of permanent tenancy, if it is a genuine one, in a Rent Control Petition while delivering his defence in the objection to the Rent Control Petition. Thus, the attempt of the petitioner in both petitions is to introduce a totally new defence contrary to the defence taken in the objections filed earlier. If, after the commencement of trial, such production of documents to the objection is permitted, it would cause prejudice to the respondent and would adversely affect fair trial. In the above view, we find that there is no illegality or incorrectness in the findings whereby the Rent Control Court dismissed I.A.Nos.2035/2018 and 2243/2018 by Ext.P14.

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Coming to Ext.P13, it is an order passed consequent to the dismissal of I.A.Nos.2035/2018 and

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O.P(RC).128/18

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2243/2018. In view of the findings in Ext.P14, the Rent Control Court is justified in dismissing I.A.Nos.2034/2018 and 2244/2018 also. Production of documents at the fag end of the trial to the surprise of the opposite party can never be allowed as it would cause serious prejudice to the opposite party. Therefore, recalling of PW1 for further cross-examination was also impermissible. Thus, the Rent Control Court is justified in dismissing I.A.Nos.2034/2018 and 2244/2018 also by Ext.P13.

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This O.P.(RC) is therefore dismissed.

Sd/-

K.HARILAL

Judge

Sd/-

ANNIE JOHN Judge

okb

//True copy// P.A. to Judge

O.P(RC).128/18

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A TRUE COPY OF RCP NO.2/2016 DATED 11/04/2016 ON THE FILE OF THE RENT CONTROL COURT,MUVATTUPUZHA

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EXHIBIT P2 A TRUE COPY OF THE OBJECTION DATED 06/02/2017 IN RCP NO. 2/2016 DATED 11/04/2016 ON THE FILE OF THE RENT CONTROL COURT, MUVATTUPUZHA.

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EXHIBIT P3 A TRUE COPY OF IA NO.2032/2018 DATED 27/07/2018. EXHIBIT P4 A TRUE COPY OF THE CONSENT DEED DATED 21/03/2011 EXECUTED BY THE RESPONDENT.

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EXHIBIT P5 A TRUE COPY OF IA NO.2034/2018 DATED 27/07/2018. EXHIBIT P6 A TRUE COPY OF IA NO.2035/2018 DATED 27/07/2018. EXHIBIT P7 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 08/08/2018 IN IA NO.2034/2018.

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EXHIBIT P8 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 08/08/2018 IN IA NO. 2035/2018.

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EXHIBIT P9 A TRUE COPY OF IA NO.2243/2018 DATED 08/08/2018. EXHIBIT P10 A TRUE COPY OF IA NO.2244/2018 DATED 08/08/2018. EXHIBIT P11 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14/08/2018 IN IA NO.2243/2018.

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EXHIBIT P12 A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 14/08/2018 IN IA NO.2244/2018.

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EXHIBIT P13 A TRUE COPY OF THE COMMON ORDER DATED 21/08/2018 IN IA NO. 2034/2018 IN RCP NO.2/2016 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.

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EXHIBIT P14 A TRUE COPY OF THE COMMON ORDER DATED 21/08/2018 IN IA NO. 2035 AND IA NO.2243/2018 IN RCP NO.2/2016 ON THE FILE OF THE MUNSIFF COURT, MUVATTUPUZHA.

M.M Francis v. Shaji V.P

Case brief

What is this about?

What did the court decide?

M.M Francis v. Shaji V.P

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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