Holding

Delay alone does not justify refusal of amendment; a new defence may be introduced if it does not cause grave prejudice, and the High Court cannot interfere with tribunal orders absent perversity, so the additional written statement is to be accepted subject to cost.

Summary

The landlord filed a petition for fixation of fair rent and the tenant filed a counter‑statement. After the trial began, the tenant sought permission to file an additional written statement raising a new plea about the extent of his lease. The Rent Controller and the Appellate Tribunal allowed the amendment, but the High Court, in revision, rejected it on the grounds of delay and alleged fundamental alteration of the pleadings. The Supreme Court held that mere delay is not a sufficient ground to refuse amendment under Order 8 Rule 9 of the CPC, and that a defendant may introduce a new defence provided no grave prejudice is caused. It also held that the High Court could not interfere with the tribunals’ orders under Section 25 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960, absent perversity or arbitrariness. The Court set aside the High Court’s order, restored the tribunals’ decisions, and allowed the additional written statement subject to a modest cost.

Issues considered

Whether delay in filing an amendment or additional written statement under Order 8 Rule 9 CPC warrants rejection of the amendment.
Whether a new ground of defence can be introduced at a belated stage without constituting a fundamental alteration of the pleadings.
Whether the High Court can exercise revisional jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960, to set aside orders of rent‑control tribunals.
Whether cost may be imposed for allowing the amendment.

Legislation cited

Code of Civil Procedure, 1908s. Order 8 Rule 9
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960s. Section 25

Subjects

amendment of pleadingsadditional written statementOrder 8 Rule 9revisional jurisdictionSection 25rent controlfair rentprejudicecost

Judgment

(2009] 10 S.C.R. 338

A OLYMPIC INDUSTRIES -1-
v.
.-
MULLA HUSSAINY BHAI MULLA AKBERALLY & ORS.
(Civil Appeal Nos. 4148-4149 of 2009)
JULY 7, 2009
B
[TARUN CHATIERJEE AND H.L. DATIU, JJ.]
~.

CODE OF CIVIL PROCEDURE, 1908:

c Or.8, r.9 - Subsequent pleadings - Additional written
statement - Held: Even by filing an amendment or additional
written statement, it is open to defendant to add a new ground
of defence or to substitute or alter the defence or even to take
inconsistent pleas in the written statement so long as the
-
pleadings do not result in causing grave injuries/irretrievable A.,
D
prejudice to plaintiff - Mere defPy is not sufficient to refuse
amendment of pleadings or an additional written statement -
High Court was not justified in rejecting tenant's application
for permission to file additional written statement, as no
prejudice could be caused to landlord which would otherwise
E
be compensated in terms of cost - Order of High Court set
aside and that of tribunals below allowing to file additional WS
is restored - Additional WS field by tenant be accepted -

-
~.
Tamil Nadu Buildings ( Lease and Rent) Control Act, 1960 - '
s.25.
F
TAMIL NADU BUILDINGS (LEASE AND RENT)
CONTROL Act, 1960:

s.25 - Revisional jurisdiction of High Court - Filing of
G additional written statement allowed by Rent Controller and
Appellate Tribunal - Order reversed by High Court - Held: ~

In absence of any perversity or arbitratriness in the concurrent
orders of the tribunals below, it was not open to High Court to
.T
intetfere with the same - Code of Civil Procedure, 1908 - Or. 8,
r.9.
H 338
OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI 339

.. ~
MULLA AKBERALLY
In a petition by landlord-respondents seeking fixation A
...... of fair rent, the tenant-appellant moved an application for
permission to file an additional written statement. The
Rent Controller allowed the application. The Appellate
Tribunal upheld the order. However, the High·Court, in the
revision petition filed by the landlord, set aside the B
concurrent orders of the tribunals below and rejected the
tenant's application on the grounds that the tenant filed
-"'-
the application belatedly when the examination of PW1
had already been over; and that in the additional WS a
new plea was raised, which was a fundamental alteration c
of the pleading~ already put forth in the WS.

Allowing the appeals of the tenant, the Court

HELD: 1.1. Mere delay is not sufficient to refuse to
,.-J,
allow amendment of pleadings or filing of additional D
written statement under Order 8 Rule 9 of the Code of
Civil Procedure, 1908 where no prejudice was caused to
the party opposing such amendment or acceptance of
additional written statement which could easily be
compensated by cost. That apart, the delay in filing the E
additional written statement has been properly explained
by the appellant. Even if the examination of PW-1 or his
.,J,.
cross-examination was over, then also, it was open to the
,..
..
court to accept the additional written statement filed by
the appellant by awarding some cost against the F
appellant. [Para 7] [343-G-H; 344-A-B; 345-H; 346-A]

1.2. Even by filing an amendment or additional
written statement, it is open to the defendant to add a new
ground of defence or substituting or altering the defen?:e ·
~
or even taking inconsistent pleas in the written statement G
as long as the pleadings do not result in causing grave
injustice and irretrievable prejudice to plaintiff or
displacing him completely. [Para 7] [344-G-H; 345-A]

H
340 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Usha Ba/asaheb Swami & Ors. vs. Kiran Appaso Swami ~ ...
& Ors. (2007) 5 SCC 602, relied on.
.....
1.3. It is well settled that courts should be more
generous in allowing the amendment of written statement
than in the case of plaint._ \!\lhile allowing additional
B
written statement or refusin~ to accept the same, the
court should only see that if such additional written
statement is not accepted, the real controversy between ~-
the parties could not be decided. In the instant case, by
filing additional written statement, no injustice/prejudice
c would be caused to the respondents, but that would help
the court to decide the real controversy between the
parties. [Para 7] [346-A-C]

2.1. The High Court in exercise of its revisional
D jurisdiction u/s 25 of the Tamil Nadu Buildings (Lease
and Rent) Control Act, could interfere with the concurrent
orders of the tribunals below only if it finds that the
findings of the tribunals below were either perverse or
arbitrary, irregular or improper; but it was not so in the
E instant case. [Para 8] [346-E-F]
2.2. The High Court was also not justified in
interferering with the concurrent orders of the tribunals ~

below, as they on consideration of the written statement
as well as the additional written statement and the *"
F application for fixation of rent and other materials on
record, accepted the written statement in their discretion
and, therefore, it was not open to the High Court to
interfere with the same in the absence of any perversity
or arbitrariness in such findings of the tribunals below.
G [Para 8] [346-F-H; 347-A]

Usha Balasaheb Swami & Ors. vs. Kiran Appaso Swami
& Ors. (2007) 5 SCC 602, relied on.

H
OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI 341
MULLA AKBERALLY
3. The High Court was not justified in passing the A

- impugned order and in rejectfog the prayer for
/

acceptance of the additional written statement filed on
behalf of the appellant. However, such application must
be allowed subject to deposit of cost which is assessed
at Rs.10,000/-. The impugned order of the High Court is B
set aside and that of the tribunals below are restored. The
additional written statement filed by the appellant be
accepted subject to deposit of cost. [Paras 9 and 10] [347-
A-E]

Case Law Reference : c
(2007) s sec so2 relied on Para 7

CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4148-4149 of 2009.
D
From the Judgment & Order dated 15.02.2007 of the High
Court of Judicature at Madras in C.R.P. (NPD) No. 207 of 202
and C.M.P. No. 2249 of 2002.

P.V. Dinesh and Jojo Jose for the Appellants. E
P.B. Suresh and Vipin Nair (for Temple Law Firm) for the
Respondents.

... The Judgment of the Court was delivered by
F
TARUN CHATIERJEE, J. 1. Leave granted.

2. These appeals are directed against the judgment and
order dated 15th of February, 2007 passed by a learned Judge
of the High Court of Judicature at Madras in CRP (NPD)
No.207 of 2002 and CMP No.2249 of 2002, by which in the G
exercise of its revisional power, the High Court had rejected
the application for permission to file additional counter
statement.

H
342 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 3. The brief facts necessitated for the disposal of these ......
appeals are as follows :
.....
The appellant became tenant under the respondents in
respect of a portion of premises bearing Door No.37, West
Mada Church Street, Royc.r: Ham, Chennai-13 for non
B
residential purposes at a monthly rental of Rs.750/-. Seeking
fixation of fair rent at Rs.10.177/- per month, the landlord/
respondents filed a petition before the XII th Judge of the Small ~,

Causes Court at Chennai. The fair rent was sought for on the
calculation of cost of construction of Madras Terraced Buildirig
c (960 sq. ft) and Zinc Roofed Building (390 sq. ft) and market
value of the land. In the said application for fixation of fair rent,
the appellant filed his counter statement contending that the
monthly rent of Rs.750/- being paid by the appellant was the
fair rent and could be fixed as fair rent or alternatively to fix the
D fair rent according to the report of the Engineer appointed for ~-
that purpose.

4. Trial commenced and P.W.1 was examined. At this
stage, the appellant filed an application seeking permission
E before the Rent Controller to file additional counter statement
raising a plea that the appellant was the tenant of the land alone
in respect of the portion of tenanted premises to the extent of
about 600 sq. ft. In the additional counter statement, the ~

appellant also raised a plea that the appellant-Olympic ..
F Industries is only a lessee of the land measuring about 5600
sq. ft. and lessee of the room measuring 400 sq. ft. in the main
building.

5. This application for acceptance of additional counter
statement was resisted by the respondents alleging that the
G additional counter statement containing new and inconsistent
plea raised by the appellant at the belated stage, more ~

particularly, after completion of examination of witnesses, could
not be allowed as that it would cause serious prejudice to the
respondents. The Rent Controller allowed the said application,
H inter alia, on a finding that opportunity must be given to the
OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI 343
MULLA AKBERALLY [TARUN CHATIERJEE, J.]

- 't appellant to put forth his additional defence. Feeling aggrieved, A
the respondents preferred an appeal before the Appellate
Authority which also accepted the additional counter statemer\t,
inter alia, on a finding that when the existence of the lease was
admitted, the party, that is the appellant, can file such additional
counter statement. The Appellate Authority also took the view B
while accepting the additional counter statement that the
averments in the additional counter statement would not alter
. '~ the position of the parties and that the respondents would have
sufficient opportunity to challenge the averments in the
additional counter statement. In revision, the High Court had set c
aside the concurrent orders of the Rent Control Authority and
rejected the application for acceptance of additional counter
. statement filed by the appellant.
''
6. It is this order which is under challenge before us which,
;i! D
on grant of leave, was heard in the presence of the learned
counsel for the parties.

7. Having heard the learned counsel for the parties and
after going through the additional counter statement as well as
the original counter statement and the application for fixation E
of fair rent and other materials on record, we are of the view
that the High, Court was not justified in interfering with the
~ ~ concurrent orders of the Rent Control Authorities in the exercise
of its revisional power. A plain reading of the impugned order
of the High Court would show that two grounds were given by F
the High Court to reject the application for acceptance of the
additional counter statement filed by the appellant. The first
ground was that the appellant had filed a belated application
for acceptance of an additional counter statement when
examination of P .W .1 was already over. So far as this ground
G
is concerned, we do not find that delay is a ground for which
the additional counter statement could not be allowed, as it is
well settled that mere delay is not sufficient to refuse to allow
amendment of pleadings or filing of additional counter
statement. At the same time, delay is no ground for dismissal
H
344 SUPREME COURT REPORTS [2009] 10 S.C.R.
-
A of an application under Order 8 Rule 9 of the Code of Civil f ...
Procedure where no prejudice was caused to the party
opposing such amendm.ent or acceptance of additional counter
statement which could easily be compensated by cost. That
apart, the delay in filing the additional counter statement has
B been properly explained by the appellant. The averments made
in the additional counter statement could not be raised by the
appellant earlier since the appellant was under the impression
that the lease agreement was destroyed in a fire accident and
that he incidentally discovered the lease files in an old trunk only
C in October 1996 while he was cleaning the house for Pooja
celebration. This explanation, in our view, cannot be rejected.
Therefore, the first ground on which the additional counter
statement sought to be rejected by the High Court in the
exercise of its revisional power, in our view, cannot be
sustained. The second ground on which the High Court had
D interfered with the concurrent orders of the tribunal below in
accepting the additional counter statement was that a new plea
was raised in the same in respect of which there was no
slightest basis in the original counter statement filed by the
appellant. According to the High Court, the plea that vacant land
E was let out to the appellant is a fundamental alteration of the
pleadings already put forth by the appellant and the appellant
cannot be permitted to introduce totally a new case. The
additional counter statement alleging that there was written
agreement and that the appellant is only a lessee of vacant site
F introduces totally a new case which would totally displace the
landlord. The High Court held that such a new plea cannot be
permitted to be taken by permitting the appellant to file
additional counter statement. In our view, this is also not a
ground for which the High Court could interfere with the
G concurrent orders of the Rent Control Tribunal and reject the
application for permission to file additional counter statement.
In our view, even by filing an amendment or additional counter
statement, it is open to the appellant to add a new ground of
defence or substituting or altering the defence or even taking
H inconsistent pleas in the counter statement as long as the
OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI 345
i
MULLA AKBERALLY [TARUN CHATTERJEE .. J.]

.r t pleadings do not result in causing grave injustice and A
irretrievable prejudice to plaintiff or displacing him completely.
[See : Usha Balasaheb Swami & Ors. vs. Kiran Appaso
Swami & Ors. (2007) 5 SCC 602]. Therefore, we are unable
to agree with the High Court on this ground as well. It is also
well settled that the courts should be more generous in allowing B
the amendment of the counter statement of the defendant then
in the case of plaint. The High Court in its impugned order has
.. _j
also observed that in order to file an additional counter
statement. it would be open to the defendant to take
inconsistent plea. The prayer for acceptance of the additional c
counter statement was rejected by the High Court on the ground
that while allowing such additional counter statement to be
accepted, it has to be seen whether it was expedient with
reference to the circumstances of the case to permit such a
plea being put forward at that stage. As noted herein earlier, D
the only ground on which the High Court had rejected the
acceptance of the additional counter statement was (i) by filing
of such additional counter statement, the appellant was
introducing a new case and (2) the entire trial was to be
reopened causing great prejudice to the respondents whose
E
examination was completed. It was also observed by the High
Court that the appellant cannot be able to take such
inconsistent plea by filing additional counter statement after
~ .~
cross-examination of the appellant. In our view, the High Court
was in error in interfering with the concurrent orders of the Rent
Control Tribunal, as from the fact stated we find that no F
prejudice was caused to the respondents and even if some
prejudice was caused that could be compensated by cost. As
noted herein earlier, the appellant had already stated in his
application for acceptance of additional counter statement the
reasons for taking such new plea, viz., he could trace out the G
j.
lease deed pertaining to the lease only when he was cleaning
the boxes. The respondents have also not disputed as to the
existence of the lease deed only they are disputing the filing of
the additional counter statement at such a belated stage. This
being the position, we are of the view that even if the H
346 SUPREME COURT REPORTS [2009] 10 S.C.R.

A .
examination of PW-1 or his cross- examination was over, then
also, it was open to the court to accept the additional counter
statement filed by the appellant by awarding some cost against
the appellant. It is also well settled that while allowing additional
counter statement or refusing to accept the same, the court
B should only see that if such additional counter statement is not
accepted, the real controversy between the parties could not
be decided. As noted herein earlier, by filing an additional
counter statement in the present case, in our view, would not
cause injustice or prejudice to the respondents but that would
c help the court to decide the real controversy between the
parties. In our view, the High Court was, therefore, not justified
in rejecting the application for permission to file additional
counter statement as no prejudice could be caused to the
respondent which would otherwise be compensated in terms
of cost.
0
8. There is another aspect of the matter. It is well settled
that the High Court in the exercise of its revisional jurisdiction
under Section 25 of the Tamil Nadu Buildings (Lease and Rent)
Control Act, could interfere with the concurrent orders of the
E tribunals below only if it finds that the findings of the tribunals
below were either perverse or arbitrary, irregular or improper,
but if the High Court finds that the findings of the tribunals below
are based on correct application of the principles and in any
way cannot be said to have acted illegally and with material
F irregularity, in that case it cannot be said that the High Court
was entitled to interfere with the concurrent orders passed by
the tribunals below in accepting the application for additional
counter statement filed by the appellants. In our view, the High
Court was also not justified to interfere with the concurrent
G orders of the tribunals below, as we find that the tribunals below,
on consideration of the counter statement as well as the
additional counter statement and the application for fixation of
rent and other materials on record, accepted the counter
statement in its discretion and, therefore, it was not open to the
H High Court to interfere with the same in the absence of any
OLYMPIC INDUSTRIES v. MULLA HUSSAINY BHAI 347
; MULLA AKBERALLY [TARUN CHATTERJEE, J.]

,.,., 'r perversity or arbitrariness in such findings of the tribunals A
below. [See Usha Batasaheb Swami & Ors. vs. Kiran Appaso
Swami & Ors. (2007) 5 SCC 602].

9. Accordingly, we are of the view that the High Court was
not justified in passing the impugned order and in rejecting the
B
prayer for acceptance of the additional counter statement filed
on behalf of the appellant. However, such application must be
~~
allowed subject to deposit of cost which is assessed at
Rs.10,000/-. Such cost must be paid or deposited in the Small
Causes Court, Chennai in the name of the respondent within
two months from the date of supply of a copy of this order to
c
the Small Causes Court, Chennai and in dE?fault of deposit of
the aforesaid amount within the time specified herein above,
the additional counter statement filed by the appellant shall
stand automatically rejected. The respondent shall be entitled
;i to withdraw the aforesaid sum of Rs.10,000/- from the Court D
of Small Causes, Chennai without prejudice to his rights and
contentions in the original case.

10. For the reasons aforesaid, the impugned order of the
High Court is set aside and that of the tribunals below are E
restored. The additional counter statement filed by the appellant
be accepted.
i-· ·-"" 11. For the reasons aforesaid, the appeals are allowed to
the extent indicated above. There will be no order as to costs.
F
R.P. Appeals allowed.