Rajasthan High Court - Jaipur
Murlidhar vs Nand Kishore And Ors. on 7 April, 2006
Equivalent citations: RLW2006(2)RAJ1687
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
JUDGMENT Prem Shanker Asopa, J.
1. That by this writ petition the petitioner has challenged the order dated 15.4.2005 passed by District Judge, Tonk, whereby two applications filed by the petitioner during the pendency of the first appeal one under Order 6 Rule 17 read with Section 151 C.P.C. dated 19.10.01 for amendment of written statement and another under Order 41 Rule 27 C.P.C. dated 17.1.2002, for taking subsequent events on record were dismissed.
2. Briefly stated the relevant facts of the case are that a decree of eviction was passed on 16.9.1994 against the petitioner-appellant in a civil suit for eviction filed by the respondent plaintiff on the ground of reasonable and bonafide necessity. Against the said judgment and decree, the petitioner filed an appeal before the District Judge, Tonk.
3. During the pendency of the appeal the petitioner filed one application on 19.10.01 under Order 6 Rule 17 for amendment in the written statement on the ground that in the civil suit decree of the disputed shop dated 16.9.94 was passed on the ground of necessity of Gauri Shanker, who has opened a Shop No. F-4 in New Mandi Yard, Newai on 24.11.1994. Therefore, the necessity of the plaintiffs stand satisfied and amendment in the written statement is necessary. Alongwith the said application the petitioner filed a photocopy of the Inauguration Card of the said shop on 24.11.1994.
4. The another application was filed on 17.1.2002 under Order 41 Rule 27 C.P.C. for taking documents/subsequent events on record on the ground that during the pendency of the suit Gauri Shankar already had a Shop No. D-17 at Krishi Upaj Mandi, Newai but the said fact could not come in the notice of the defendant during the pendency of the suit. It has been further stated that the said fact came to the notice during the pendency of the appeal when Gauri Shanker applied for renewal of the license on 17.1.2002. The Renewal Application was annexed with the aforesaid application under Order 41 Rule 27 C.P.C.
5. The plaintiffs-respondents have filed reply to both the aforesaid applications and prayed for rejection of the same.
6. The learned District Judge considered the fact that reasonable and bonafide necessity is to be seen on the date of institution of the suit and further gave a finding that from the documents it does not reveal that Gauri Shanker has been allotted a separate shop or has started his business separately. He has further given a finding that prima facie it does not reveal whether in Mandi Yard Newai, Shop No. F-4 or any other shop is allotted to Shri Gauri Shanker. The learned Judge relying on a judgment of Supreme Court dismissed both the applications with costs of Rs. 1,000/-.
7. The submission of counsel for the petitioner is that since the decree has been passed on the ground of reasonable and bonafide necessity of Gauri Shanker and both the documents are related to starting of business by Gauri Shanker, although one during the pendency of the suit and another during the pendency of the appeal, therefore, the same have material bearing on the issue and relief granted by the Trial Court becomes inappropriate in the changed circumstances. Further it is necessary to take the subsequent event in order to shorten the litigation and further the same will do complete justice between the parties. Counsel for the petitioner has placed reliance upon a judgment in Wadi v. Amilal and Ors. reported in 2002 Western Law Cases (SC) Civil 726.
8. The submission of the counsel for the respondents is that in the facts and circumstances of the case, the documents do not disclose the start of the independent business by Gauri Shanker. Otherwise also as per the Supreme Court judgment reported in Gaya Prasad v. Pradeep Shrivastava AIR 2001 Supreme Court 803, the crucial date for deciding bona fides of the need is date of application. He has also relied upon a judgment of this Court reported in Smt. Kamla Dhawla v. Krishna Katta 2001 Western Law Cases (Raj.) UC 229.
9. I have gone through the record of the writ petition and further considered the rival submissions of the parties.
10. In the judgment cited by the counsel for the petitioner in the case of Wadi (supra), the Supreme Court has held that in case document in question throwing light on germane issue - the Appellate Court must have allowed such document as additional evidence because judgment without admitting such document would be defective and not effective. Para No. 7 and 8 of the said judgment is reproduced hereunder:-
7. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in Sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in Clauses (a), (a) and (b). We are concerned here with Clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for its is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.
8. In this case, on the question whether Rupa Ram died in 1951 or in 1960/61, the revenue appellate authority referred to a copy of mutation No. 49 and remanded the case to the original authority. The document in question would throw light on the germane issue and is, therefore, necessary for pronouncing judgment in the case on the question whether remand of the case was justified. In our view, the board of revenue ought to have admitted the additional evidence under Clause (b) aforementioned. It erred in declining to admit that document as additional evidence.
11. In Para Nos. 10 and 13 of the judgment cited by the respondents in the case of Gaya Prasad (supra) it has been held that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. However, in the same para and another para No. 13, the Court has held that the subsequent need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. The Para Nos. 10 and 13 of the said judgment are as follows: -
10. We have no doubt that the crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.
13. In our opinion, the subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. A three Judge Bench of this Court in Pusupuleti Venkateshwarluy v. Motor and General Traders which point to the need for re-moulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. This is what learned Judges of the Bench said then (Para 4):
We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.
12. The another judgment cited by the counsel for the respondents in Smt. Kamla Dhawla v. Krishna Katta 2001 WLC (Raj.) UC, 230 (supra) was relating to the bill in the name of plaintiff to show that plaintiff had acquired another shop. Para Nos. 3 and 7 of this judgment read as under: -
3. The amendment being sought was that the accommodation has been made available to plaintiff for doing the business, which is based on certain record i.e., Telephone Bill in the name of plaintiff. The application was dismissed for the reasons mentioned in the order. The court has observed that no such document has been placed on record to show that plaintiff had acquired any shop so as to warrant amendment. In my opinion the appellant court had rightly rejected the application for amendment in written statement at the stage of appeal.
7. After hearing counsel for the petitioner and gone through the impugned order, in my opinion the Trial Court had rightly dismissed the application. 1 do not find any jurisdictional error committed by the Trial Court. I am not inclined to interfere in the impugned order. The revision petition has no merits and the same is to be dismissed with heavy cost. The cost is assessed as Rs. 3000.
13. The aforesaid judgment of Gaya Prasad and other Judgment of the Supreme Court have further been considered in a case reported in Kedar Nath Agrawal (Dead) and Anr. v. Dhanraji Devi (Dead) by Lrs. and Anr. , wherein in Paragraph No. 16, the circumstances for consideration of subsequent even have been laid down. The said para is reproduced as under: -
16. In our opinion, by not taking into account the subsequent event, the High Court has committed an error of law and also an error of jurisdiction. In our judgment, the law is well settled on the point, and it is this: the basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit or proceeding and the suit/action should be tried at all stages on the cause of action as it existed at the commencement of the suit/action. This, however, does not mean that events happening after institution of a suit/proceeding, cannot be considered at all. It is the power and duty of the court to consider changed circumstances. A court of law may take into account subsequent events inter alia in the following circumstances:
(i) the relief claimed originally has by reason of subsequent change of circumstances become inappropriate; or
(ii) it is necessary to take notice of subsequent events in order to shorten litigation; or
(iii) it is necessary to do so in order to do complete justice between the parties.
14. Recently the three Judges of Hon'ble Supreme Court in Adil Jamshed Franchman (Dead) by Lrs. v. Sardar Dastur Schools Trust and Ors. , again considered the fact of filing some documents at appellate stage and the order of IIIrd Additional District Judge, Pune of allowing such documents to be taken on record has been restored on the ground that bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire. The Para Nos. 8 and 9 of the aforesaid judgment are as follows: -
8. The decree of the Trial Court is based on the landlords' bona fide requirement of the accommodation. In appeal, the question before the court for adjudication was whether the Trial Court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously were within their rights to show that the need of the landlords was not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of the landlords. In Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contradistinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath v. Pooran Lal (2001) 5 this Court reiterated that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the court that it is not a mere fanciful or whimsical desire.
9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s Godrej & Boyce Co. Ltd. for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the Trial Court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenant's statement that the documents could not be have been produced before the Trial Court, inspite of the exercise of due diligence, was highly probable. In such circumstances, the High Court was not justified in interfering with the discretion exercised by the first appellate court permitting additional evidence.:
15. The Division Bench of this Court also very recently on 22nd March, 2006, Radhey Shyam Soni v. Sumer Mal Phophalia and Anr. D.B. Civil Special Appeal (Writ) No. 201/2006 has considered the identical issue and invoked the provisions of Order 19 Rule 1 CPC in place of Order 6 Rule 17 C.P.C. and allowed the application under Order 8 Rule 1(3). The relevant portion of the said judgment is reproduced here under for ready reference: -
We do not wish to make any comment on the relevance and possible effects of the subsequent even in the instant case. That is a matter to be considered by the Trial Court in the suit. But as observed in Ramesh Kumar v. Kesho Ram 1992 SC 700 to which reference was made on behalf of the respondent, the normal rule is that rights and obligations of the parties are to be adjudicated as they exist at the commencement of the lis, but where subsequent events of fact or law have material bearing on the entitlement of the parties to relief, the court is not precluded from taking cognizance of the subsequent events to mould the relief. Reference may also be made to the provisions of Order 7 Rule 7 of the Civil Procedure Code.
Counsel for the respondent submitted that the suit was instituted in the year 1987 and if the application for amendment of the written statement is allowed it may cause prejudice to the respondent as it may give rise to chain of consequences. The desired purpose can be served by permitting the party to file affidavit as provided under Order 19 Rule 1 CPC as held in Ramesh Kumar v. Kesho Ram (supra).
He referred the following observations in the judgment.
When subsequent events are pleaded in the course of an appeal or proceeding of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 of Order 19, CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, it if finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an inquiry and evidence. All these depend upon the factual and situational differences characterising a particular case and the nature of the plea raised. There can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities.
On behalf of the appellant it was submitted that the observations were made in the context of proceeding at the appellate stage. According to the counsel, the suit is pending at the stage of trial and therefore, the observations are relevant in the present case. The submission has little force. The observations relate to the scope of Order 19 Rule 1 CPC. What has been held is that evidence can be adduced by way of affidavit. All that the appellant in the present case wants to apprise the court of the fact that during pendency of the suit the respondent obtained vacant possession of another shop which has a material bearing on his claim for eviction on the ground of personal necessity. The purpose can be well served by permitting the appellant to file affidavit as envisaged in Order 19 Rule 1 read with Order 8 Rule 1(3) of the Code of Civil Procedure."
16. The Supreme Court in the case of Kedar Nath Agrawal (dead) (supra), had explained the three circumstances under which the subsequent events can be taken on record and the case of the petitioner-defendant is covered by circumstances Nos. 1 and 3.
17. The aforesaid two documents are relating to the starting of business in two independent shops during the pendency of civil suit and appeal by Gauri Shanker for the need of whom the judgment and decree have been passed are prima facie material documents, therefore, it be taken on record as per circumstances Nos. 1 and 3 of the aforesaid judgment. The further relevancy and the effect of the same would be adjudicated by the District Judge after receipt of the counter affidavit of the plaintiffs-respondents at the time of final hearing of the appeal.
18. In the result the writ petition is allowed. The Impugned order dated 15.4.2005 is quashed and following directions are issued: -
(i) The application under Order 6 Rule 17 C.P.C. is disposed of in the manner that the party may file affidavit under Order 19 Rule 1 C.P.C. along with the document annexed with the amendment application which will be taken on record and an opportunity will be given to the other side as per the requirement of the Order 19 Rule 1 C.P.C.
(ii) The document filed along with application under Order 41 Rule 27 C.P.C. be also taken on record.
(iii) The final effect of both the documents on the appeal shall be adjudicated by District Judge, Tank.
(iv) The order of cost Imposed by District Judge Tank, has already been set-aside. No order as to cost in this writ petition.