Dismissed

Vadakkekandiyil Kunhabdulla Haji, v. Munees

Kerala HC3 Aug 2022OP (RC)/38/2022

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Rent Control Court order that refused an amendment to a Rent Control Petition. The amendment sought to add a ground for eviction based on arrears of rent omitted from the petition. The High Court held that the lack of averments in the petition prevented the notice from substituting the plea, though it noted the impugned order was cryptic.

What did the court decide?

The original petition challenging the dismissal of the amendment application for introducing a new ground for eviction is dismissed.

Vadakkekandiyil Kunhabdulla Haji, Vs Munees — Landlord and Tenant | Kerala HC (2022)

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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 ANIL K.NARENDRAN

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THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR

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WEDNESDAY, THE 3^RD DAY OF AUGUST 2022 / 12TH SRAVANA, 1944

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O.P.(RC) NO. 38 OF 2022

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AGAINST THE ORDER DATED 22.01.2022 IN I.A.NO.8/2022 IN R.C.P.NO.29/2018 OF RENT CONTROL COURT (MUNSIFF), VADAKARA

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PETITIONER:

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VADAKKEKANDIYIL KUNHABDULLA HAJI,

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AGED 65 YEARS, S/O.IBRAHIM HAJI, MOTUVAYIL HOUSE, VELLOOR AMSOM DESOM, PERODE POST, VATAKARA TALUK, KOZHIKODE DISTRICT-673 504.

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BY ADV K.DEEPA (PAYYANUR)

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RESPONDENTS:

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1 MUNEES, AGED 47 YEARS, S/O.UMER USMAN, ARAYILAKATH HOUSE, HARIYAS, NEAR RAILWAY FLY OVER, BEACH ROAD, MUZHAPPILANGADU POST, PIN-670 662, ADDRESS OF THE FIRM MANAGING PARTNER, MUMTHAS HOMES, EDODI, KARIMBANAPALAM, VATAKARA POST, VATAKARA TALUK, PIN-673 101.

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2 VADAKKEKANDIYIL POCKER, AGED 60 YEARS, S/O.IBRAHIM HAJI, MADATHUMTHAZHAKUNI HOUSE, PERODE POST, PEROD AMSOM, VELLOR DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT-673 504.

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BY ADV ZUBAIR PULIKKOOL

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O.P.(RC) No.38 of 2022

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THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 27.07.2022, THE COURT ON 03.08.2022 DELIVERED THE FOLLOWING:

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O.P.(RC) No.38 of 2022

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JUDGMENT

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Ajithkumar, J.

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The petitioner has filed R.C.P.No.29 of 2018 before the Rent Control Court (Munsiff), Vatakara, seeking eviction of the respondents from the petition schedule building. It was filed invoking the provisions of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The petitioner contends that on account of an inadvertent omission, the plea for eviction on the ground of arrears of rent under Section 11(2)(b) of the Act was omitted to be included in the R.C.P. Therefore, he filed I.A.No.8 of 2022 for amendment of the R.C.P. That petition was dismissed as per the order dated 22.01.2022. Aggrieved of that order, the petitioner has filed this Original Petition under Article 227 of the Constitution of India.

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On 16.02.2022, the matter was admitted to file. The proceedings in R.C.P.No.29 of 2018 was stayed initially for a period of two weeks and the order has been extended from time to time.

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O.P.(RC) No.38 of 2022

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

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The Rent Control Court dismissed I.A.No.8 of 2022 stating as follows:-

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“The above petition is filed under Order VI, Rule XVII and Section 151 of the Code of Civil Procedure, 1908. Both represented. Counter filed. Heard both sides. Since it is a listed matter and more than sufficient time is given for steps, I am of the opinion that the prayer is not reasonable at this stage and hence it is dismissed.”

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The learned counsel appearing for the petitioner

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would submit that trial of the case was yet to be begun and as the claim for eviction on the ground of arrears of rent was stated in detail in the notice dated 06.11.2017 and the same was produced along with the eviction petition, the amendment should have been allowed by the Rent Control Court.

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The learned counsel appearing for the respondent, on the other hand, contended that the proposed amendment will introduce a new ground for eviction in the Rent Control Petition, which is impermissible in view of the law as laid

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O.P.(RC) No.38 of 2022

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down by this Court in Abdul Kareem v. Muhamed Shafi

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[2017 (2) KLT 645] . In that decision it was held,-

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"In the above view, we find that the specific provision incorporated under Section 23(1)(j) of the Act is confined to amendment to cure "defect" or "error" in the Rent Control Petition only. If the cause of action for eviction on the new ground, which is intended to be incorporated, by way of amendment has arisen, after filing of the Rent Control Petition, that ground cannot be allowed to be incorporated by way of amendment, as the same was not available on the date of filing the Rent Control Petition. If that ground was not available, on the date of filing of the Rent Control Petition, it will not fall under the "defect" or "error" contemplated under Section 23(1)(j) of the Act. It follows that if the matters sought to be incorporated by way of amendment, would not come under "error" or "omission", such amendment cannot be allowed, in the Rent Control Petition, in exercise of the inherent powers under Section 151 or Order VI Rule 17 of the Code of Civil Procedure".

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It is contended by the petitioner that in the notice

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sent on 06.11.2017 as a prelude to the filing of the eviction petition, copy of which is Ext.P1, it has been stated that the respondent has defaulted payment of the rent since February

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O.P.(RC) No.38 of 2022

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However, the said fact was omitted to be stated in the R.C.P. The notice being part of the pleadings, the petitioner is entitled to add necessary pleadings in the R.C.P. with reference to the default in repayment and the relief of eviction under Section 11(2)(b) of the Act.

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It is true that in paragraph No.3 of Ext.P1 notice it was stated that the respondent defaulted payment of rent from February, 2017 onwards. But there is absolutely no averment in the R.C.P., Ext.P2, regarding default in payment of rent. Of course, if the petitioner omitted to include the relief, but there have been averments with reference to the nonpayment of rent in the petition, it could be said that it was an omission. But in Ext.P2 there is absolutely no whisper with respect to the arrears of rent. In such circumstances, the statement in Ext.P1 notice cannot be treated as part of pleadings and sufficient substitution for the plea regarding eviction on the ground of arrears of rent. Therefore, we are of

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the view that the proposed amendment will amount to inclusion of a new ground for eviction in the petition. Such a

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O.P.(RC) No.38 of 2022

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course can not be allowed in the light of the limited application of Section 23(j) of the Act in the matter of the amendment of pleadings, in view of the principles of law as laid down by this Court in the aforementioned decision.

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We notice that the impugned order is so cryptic and there is absolutely no reason stated in it as to why the petition seeking amendment is dismissed, except the delay. The Rent Control Court ought to have considered the merits of the question and stated its reasons for declining leave to amend the petition. That, however, is not a sufficient reason enabling the petitioner to get that order set aside.

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Therefore, the Original petition fails and the same is dismissed.

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Sd/-

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ANIL K. NARENDRAN, JUDGE

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Sd/-

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P.G. AJITHKUMAR, JUDGE

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dkr

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O.P.(RC) No.38 of 2022

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APPENDIX OF OP (RC) 38/2022

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF THE DEMAND NOTICE DATED 06.011.2017 ISSUED BY THE PETITIONER TO THE RESPONDENT.

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Exhibit P2 TRUE COPY OF THE ORIGINAL PETITION DATED 19.03.2018 FILED BEFORE THE COURT OF RENT CONTROLLER, VATAKAR AS RCP NO.29/2018 BY THE PETITIONER.

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Exhibit P3 TRUE COPY OF THE COUNTER STATEMENT DATED 19.11.2018 FILED IN RCP NO.29/2018 BY THE RESPONDENT.

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Exhibit P4 TRUE COPY OF THE AMENDMENT PETITION DATED 04.01.2022 FILED AS IA NO.8/2022 IN RCP NO.29/2018 TO AMEND THE ORIGINAL PETITION BY THE PETITIONER.

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Exhibit P5 TRUE COPY OF THE COUNTER IN IA NO.8/2022 IN RCP NO.29/2018 BY THE RESPONDENT.

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Exhibit P6 CERTIFIED COPY OF THE ORDER DATED 22.01.2022 OF THE COURT OF THE RENT CONTROLLER VATAKARA IN IA NO.8/2022 IN RCP NO.29/2018.

Vadakkekandiyil Kunhabdulla Haji, v. Munees

Case brief

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What did the court decide?

Vadakkekandiyil Kunhabdulla Haji, v. Munees

Case brief

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