REPORTABL E

    IN THE SUPREME COURT OF INDIA      CIVIL APPELLATE JURISDICTION

     CIVIL APPEAL NOs. 4148-4149 OF 2009     (Arising out of SLP©Nos.23661-23662 of 2007)

Olympic Industries               ----Appellant

Versus

Mulla Hussainy Bhai Mulla Akberally & Ors.    ….Respondents

   J U D G M E N T

TARUN CHATTERJEE, 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 exercise of its  

revisional power, the High Court had rejected the  

application  for  permission  to  file  additional  

counter statement.

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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,  Royapuram,  Chennai-13  for  non  

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 XIIth Judge of  

the Small Causes Court at Chennai. The fair rent was sought  

for  on  the  calculation  of  cost  of  construction  of  Madras  

Terraced Building (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 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  

before the Rent Controller to file additional counter statement  

raising a plea that the appellant was the tenant of the land  

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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  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  

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,  inter  alia,  on  a  finding  that  

opportunity must be given to the appellant to put forth his  

additional  defence.  Feeling  aggrieved,  the  respondents  

preferred an appeal before the Appellate Authority which also  

accepted the additional counter  statement,  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  

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view 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  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, 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 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  the  High  Court  to  reject  the  

application  for  acceptance  of  the  additional  counter  

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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 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  

of an application under Order 8 Rule 9 of the Code of Civil  

Procedure  where  no  prejudice  was  caused  to  the  party  

opposing  such  amendment  or  acceptance  of  additional  

counter  statement  which  could  easily  be  compensated  by  

cost.  That apart, the delay in filing the additional counter  

statement has 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 in October 1996 while he was  

cleaning the house for Pooja celebration. This explanation, in  

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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 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  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  

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 concurrent orders of the Rent Control Tribunal and reject  

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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  inconsistent  pleas  in  the  counter  

statement as long as the pleadings do not result in causing  

grave  injustice  and  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 the amendment of the counter  

statement of the defendant then in the case of plaint.  The  

High Court in its impugned order has 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  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  

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forward  at  that  stage.  As  noted  herein  earlier,  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 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 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  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  

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belated stage. This being the position, we are of the view that  

even if  the 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 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 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.

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  

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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 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  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 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 High Court to interfere with the same in the absence of  

any  perversity  or  arbitrariness  in  such  findings  of  the  

tribunals  below.[See  Usha  Balasaheb  Swami   &  Ors.  vs.  

Kiran Appaso Swami & Ors. (2007) 5 SCC 602].

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9. Accordingly, we are of the view that the High Court was  

not justified in passing the impugned order and in rejecting  

the 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 the Small Causes Court, Chennai and in default 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  to  withdraw  the  aforesaid  sum  of  

Rs.10,000/-  from  the  Court  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  

restored.  The  additional  counter  statement  filed  by  the  

appellant be accepted.                                 

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11. For the reasons aforesaid, the appeals are allowed to the  

extent indicated above. There will be no order as to costs.  

            …………………… J.

           [Tarun  Chatterjee]       

New Delhi;            ……………… …….J. July 07, 2009.   [H.L.Dattu]

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