Rajasthan High Court - Jaipur
Gopal Ram vs Govind Ram on 8 May, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
O R D E R
S.B. Civil Second Appeal No.120/2012
Gopal Ram Vs. Govind Ram
Date of Order : 08.05.2012
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. S.K Gupta with
Mr. Rahul Sharma for the appellant.
Mr. S.C.Gupta with
Mr. Saurabh Jain for the respondent.
REPORTABLE Heard learned counsel for the parties.
2. The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 21.12.2011 passed by Additional District Judge, Jhunjhunu (Rajasthan) in Civil Regular Appeal No.18/2005 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 8.10.2004 passed by the trial Court i.e. Civil Judge (Junior Division) Jhunjhunu in Civil Suit No.6/1996 whereby the suit for eviction filed by the plaintiff-respondent was decreed.
3. Brief relevant facts for the disposal of this appeal are that the respondent-landlord filed Civil Suit No.6/1996 in the trial Court against the tenant-appellant for eviction from the suit shop and for recovery of arrears of rent with the averment that the suit shop was let out to the appellant on 1.7.1990 at the monthly rent of Rs.100/-. It was also averred that the suit shop is required by the respondent bonafidely and reasonably for the use and occupation of his son namely Shri Kamlesh to do the business of General Merchandise because he is a jobless educated person having sufficient experience to do the business of General Merchandise. The appellant filed written statement and the requirement shown by the respondent was denied mainly by saying that the son of respondent-Shri Kamlesh is an authorised Government Dealer of Kerosene Oil of Village Narsinghpura and he is earning several thousands rupees per month from that business. It was further averred that Shri Kamlesh has income from money-lending and dealing in buying and selling of shares also. It was further averred by the appellant that the measurement of suit shop is only 5 feet x 5 feet and the same is not suitable and sufficient for General Merchandise business whereas the appellant is doing tailoring job in it and he has no other premises for his use and occupation. It was also averred that the appellant and his family members are entirely dependent on the earnings from the tailoring job which the appellant is doing in the suit shop. On the basis of pleadings of the parties, necessary issues were framed by the trial Court. Both the parties adduced oral as well as documentary evidence and the learned trial Court after hearing both the parties and appreciating and evaluating the evidence available on record decreed the suit. It was held by the Court that the requirement shown by the respondent is bonafide and reasonable as he has no other vacant shop of his own which can be used to establish Shri Kamlesh in his life and to earn his own independent income. It was also held that the appellant did not make no serious efforts to take any other premises for his use and occupation either on rent or otherwise although alternative accommodations are easily available and, therefore, if decree is refused the respondent will face more hardship in comparison to the appellant. So far as partial eviction from the suit shop is concerned, it was held that both the parties agreed that looking to the measurement of the suit shop if partial eviction is ordered need of any of parties will be satisfied. Feeling aggrieved, the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 21.12.2011. Learned appellate Court concurred with the findings arrived at by the trial Court. During pendency of the appeal, tenant-appellant filed an application under Order 6 Rule 17 CPC for amendment in written statement stating therein that a shop belonging to respondent which was previously in the tenancy of one Shri Madhu Sudan Khaitan has been vacated during pendency of the appeal and the same has been occupied by another son of respondent-Shri Rajneesh whereas Shri Kamlesh, for whose requirement the present suit has been filed, has occupied another shop of respondent and he has started doing business in that shop, and therefore, the requirement has been fulfilled and the subsequent facts which have arisen after the judgment of the trial Court are required to be pleaded and incorporated in the written statement filed by the appellant. Reply to the application was filed by the respondent in which it was averred that the shop which was previously in the tenancy of Shri Madhu Sudan Khaitan has been vacated but this shop is now in the occupation and use of Shri Vinod, an another son of the respondent and this statement of appellant is not correct that in the vacated shop another son of respondent-Shri Rajneesh is doing business whereas Shri Kamlesh, for whose requirement the present suit has been filed, has now occupied the shop in which previously the respondent was doing his business. Both the parties filed affidavit in support of their respective contentions and the learned appellate Court dismissed the application for amendment vide order dated 13.5.2011. Still dissatisfied, the tenant-appellant is before this Court by way of this appeal. During pendency of this appeal on behalf of appellant an application under Order 41 Rule 27 CPC for production of additional evidence in the form of an affidavit of Shri Puran Mal Saini son of Shri Banwari Lal, certified copy of judgment dated 4.5.2011 passed by Additional District Judge, Jhunjhunu in Civil Regular Appeal No.5/2006 and photostat copy of judgment dated 26.5.2006 passed by a Coordinate Bench of this Court in SB Civil Second Appeal No.391/2011 was filed.
4. Assailing the impugned judgement and decree passed by the Courts below, learned counsel for the appellant has raised the following grounds:-
(i) During pendency of the lis, it has come on record that one of the shops belonging to the respondent which was previously in the tenancy of Shri Madhu Sudan Khaitan was vacated and it stood available to the respondent for the use and occupation of his son Shri Kamlesh, for whose requirement the present suit has been filed, and therefore, this subsequent event should be taken note of to determine the bonafide of the need shown by the respondent for the suit shop. Similarly, it is also clear that another shop of respondent which was in the tenancy of Shri Banwarilal has been vacated during pendency of this appeal and this shop now can be used for the business of another son of respondent-Shri Rajneesh, for whose requirement suit for eviction was filed by the respondent against Shri Banwarilal. It is well settled that the requirement shown by the landlord should subsist till the final disposal of the lis and in the meanwhile if the requirement shown by the landlord comes to an end by any reason or the requirement can be satisfied by some other means, the requirement shown by the landlord for the suit premises cannot be said to be bonafide and reasonable.
(ii) The learned first appellate Court dismissed the application filed by the appellant under Order 6 Rule 17 CPC without affording opportunity to adduce evidence whereas the legal requirement is that if for the disposal of such an interlocutory application also, evidence is necessary to be recorded, opportunity must be afforded to both the parties but in the present case it was not done by the first appellate Court. According to learned counsel in the application filed for amendment of written statement it was specifically mentioned by the appellant that the shop vacated by Shri Madhu Sudan Khatain has been used by the respondent for the business of his son-Shri Rajneesh whereas Kamlesh for whose requirement present suit has been filed has started doing business in another shop belonging to the respondent and in support of the contention affidavit was also filed by the appellant whereas in the reply filed by the respondent to the application, the averment made by the appellant was denied and it was stated that in the vacant shop another son of respondent-Shri Vinod is doing business and the respondent himself is occupying his another shop and affidavit was also filed by the respondent in support of the reply but the first appellate Court refused to believe the affidavit filed by the appellant on the ground that affidavit of some independent person has not been filed but at the same time the affidavit filed by the respondent was relied although the respondent also did not file affidavit of an independent person. As there was dispute between the parties regarding the fact who is actually occupying the vacated shop, it was necessary for the appellate Court to afford opportunity to the parties to produce evidence in support of their respective contentions but the first appellate Court without doing so dismissed the application filed by the appellant. According to learned counsel for the appellant it is essential that the judgment and decree passed by the first appellate Court as well as the order dated 13.5.2011 passed by it, be aside and the matter may be remanded back with a direction that after granting opportunity to produce evidence in regard to the application filed under Order 6 Rule 17 CPC, the appeal may be decided aftresh.
(iii) This subsequent fact may also be taken note of that during pendency of the suit and appeals the respondent has attained the age of more than 80 years and he is now physically not capable to do the business independently without the help of one of his sons and, therefore, the shop in which the respondent was previously doing business can now be used either for the business of Shri Kamlesh or another son-Shri Rajneesh for whose requirement another suit for eviction was filed against Shri Banwarilal.
(iv) From the evidence available on record it is clear that one of the sons of respondent namely Shri Vinod was already doing business in a shop situated at another place and, therefore, there was no need for him to shift in a shop which was vacated by Shri Madhu Sudan Khaitan as claimed by the respondent.
(v) It is an admitted fact that the present suit was filed for the requirement of Shri Kamlesh whereas another suit was filed against Shri Banwarilal for the requirement of another son of respondent namely Shri Rajneesh and during pendency of the appeals the respondent has got vacant possession of two shops, one from Shri Madhu Sudan Khaitan and another from Shri Banwarilal and, therefore, both these shops can be used and occupied by Shri Kamlesh and Rajneesh. Thus, the requirement shown by the respondent regarding the present shop has come to an end and it can be satisfied by one of the two vacant shops already available to the respondent.
(vi) So far as question of comparative hardship is concerned, it is clear that the respondent has three shops available to him whereas the appellant has no other premises of his own which he can use for his tailoring job and, therefore, if the decrees passed by the Courts below are not set aside, it will cause more hardship to the appellant in comparison to the respondent. It is also clear from the evidence available on record that another son of respondent namely Shri Deepak is doing his business independently in some other shop since before the institution of the present suit and thus, all four sons of respondent and respondent himself are already established in their respective businesses whereas the appellant and his family members are entirely dependent on the income earned by the appellant from the suit shop.
In support of his submissions, learned counsel for the appellant relied upon the cases of Murlidhar Vs. Nand Kishore reported in 2006 (2) RLW 1687, Hafazat Hussain s/o Mubarak Hussain Vs. Abdul Majeed s/o Wali Mohd. alias Sheikh Ballan and others reported in (2001) 7 SCC 189, Adil Jamshed Frenchman (D) By Lrs. Vs. Sardar Dastur Schools Trust & Ors. reported RLW 2005 (3) SC 371, and Gajendra Singh Lodha Vs. Bhanwar Lal Kothari & Ors. reported in 2009 (1) RLW (Raj.) 246.
5. On the other hand, learned counsel for the respondent by controverting the submissions made on behalf of the appellant, submitted as below:-
(i) Although, subsequent events which have developed after the institution of the suit may be taken note of but the normal rule of law is that the need shown by the landlord has to be decided as it existed on the date of suit unless the subsequent events or change of circumstances are such which the eclipses the need shown by the landlord. In the present case, although during pendency of the lis two shops have been vacated and have been made available to the respondent but it cannot be said that the need shown for the suit shop has come to an end as it is on record that the shop vacated by Shri Madhu Sudan Khaitan has been used for the business of another son of respondent namely Shri Vinod whereas the shop vacated by Shri Banwarilal was sought to be vacated for the use and occupation of another son of respondent-Shri Rajneesh and, therefore, the need of Shri Kamlesh is still subsisting. There is no evidence on record that the shop which was in the occupation of respondent is now has been occupied by Shri Kamlesh and the same vacated by Shri Madhu Sudan Khaitan has been used for business of Shri Rajneesh. Merely that during pendency of suit and appeals the respondent has attained the age of more than 80 years, it cannot be said that he is become incapable to do the business independently. Shri Vinod, one of the sons of respondent, was doing his business in a rented shop situated at another place and, therefore, it is not unnatural that he now has started his business in the shop vacated by Shri Madhu Sudan Khaitan. When one of the shops belonging to the respondent has been vacated during pendency of this lis, Shri Vinod cannot be compelled to continue to do his business in a rented shop and the respondent has a right to see that he shifts in a shop owned by him and start his business in the same.
(ii) The order dated 13.5.2011, by which the application for amendment filed under Order 6 Rule 17 CPC was dismissed by the first appellate Court, was not challenged by the appellant by way of a Civil Writ Petition or by any other appropriate means and order has attained the finality and the same cannot be challenged in this appeal more particularly looking to the fact that the copy of the order has not been filed alongwith the appeal and no prayer has been made in the appeal that the order dated 13.5.2011 may be set aside and the matter may be remanded back to the appellate Court for re-consideration. It is not a legal requirement that each and every interlocutory application filed by a party during the course of suit or appeal has to be decided after affording opportunity to the parties to adduce evidence in support of their respective contentions even if there is dispute regarding facts stated in the application. The legal position is that if the court finds it appropriate such application can be decided even on the basis of affidavits filed by the parties. In the present case, no prayer was made by the appellant that opportunity to lead evidence may be granted to him in support of the application or to grant opportunity to cross examine the respondent on the affidavit filed by him in support of his reply and, therefore, the appellant cannot be allowed to contend in this appeal that opportunity to produce evidence or to cross examine the respondent was not granted by the appellate Court.
(iii) So far as question of comparative hardship is concerned, both the Courts below have concurrently found that no efforts were made by the appellant to take some other premises either on rent or otherwise and , therefore, the finding of fact regarding comparative hardship cannot be challenged in this appeal. Merely because during pendency of the lis, two vacant shops have been made available to the respondent and one shop was already in his occupation, it cannot be said that in case the impugned judgment and decree is not set aside, the appellant will face more hardship in comparison to the respondent as at the most it can be said that requirement only of two sons of respondent-Shri Vinod and Shri Rajneesh has been satisfied whereas the requirement of Shri Kamlesh still subsists. Every landlord has a right to see that his every grown up son is established in his life independently and separately.
In support of his submissions, learned counsel for the respondent relied upon the cases of Har Narain Daga Vs. Heeralal and others reported in AIR 2001 SC 341, Saini Samaj, Kaman Vs. Nagar Palika, Kaman reported in 2011 WLC (Raj.) UC 548, Thakur Das Vs. Natthumal reported in 2011 (3) WLC 202, Sultan Khan Vs. Brij Mohan reported in 1970 RLW 74, Phool Chand Vs. The Appellate Rent Tribunal, Bikaner & Ors. reported in 2008 (5) WLC 624, Gaya Prasad Vs. Pradeep Srivastava reported in 2001 (2) SCC 604, Vishwanath and another Vs. Hidayatt Ullah reported in 1999 (2) SCC 535, Uday Shankar Upadhyay and others Vs.Naveen Maheshwari reported in 2010 (1) SCC 503, Ragavendra Kumar Vs. Firm Prem Machinery & Co. reported in 2000 (1) SCC 679, Savitri Sahay Vs. Sachidanand Prasad reported in 2002 (8) SCC 765
6. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law relied upon by the parties.
7. The well established facts as emerging from the pleadings and evidence available on record and relevant for the disposal of this appeal are required to be considered which are as below:-
(i) The landlord-respondent owns five shops which are situated in the front portion of his residential house in which he alongwith his family members is residing.
(ii) At the time of institution of the present suit out of these five shops, four shops including the suit shop were in the tenancy of different persons whereas the remaining 5th shop was in the use and occupation of respondent himself and he was doing business in it after retirement from some Government Service.
(iii) The respondent has atleast four sons. At the time of institution of the present suit two of his sons namely Shri Deepak and Shri Vinod were doing their respective business in rented shops situated at another place.
(iv) The present suit was filed with the averment that suit shop is required for the use and occupation of Shri Kamlesh, one of the sons of the respondent whereas another suit was also filed against another tenant namely Shri Banwarilal with the averment that, that shop is required for the business of another son of respondent namely Shri Rajneesh.
(v) Shri Kamlesh is an educated unemployed person and after completing his studies he gained experience to do the business of General Merchandise by sitting with his brother Shri Deepak, who was already doing that business and it was felt by him that time has come that he should start his own business independently. The appellant failed to prove that Shri Kamlesh is an authorised government dealer of kerosene oil at Village Narsinghpura and he is earning several thousands of rupees per month from such a business and also the fact that he has income from money lending and dealing in buying and selling of shares.
(vi) The measurement of suit shop is 5 feet x 5 feet and the appellant is doing tailoring job in it since the commencement of the tenancy i.e. 1.7.1990 and he and his family members are entirely dependent on earnings made by the respondent by his tailoring shop. Son of appellant is also doing tailoring shop at another place and there is no evidence on record indicating that son of appellant has separated from him. No efforts were made by the appellant even after institution of the suit to take any other premises for his use and occupation either on rent or in some other way, although premises are available in the town in which the suit shop is situated.
8. During pendency of the present lis, following subsequent events have developed:
(i) One of the shops belonging to the respondent which was in the tenancy of Madhu Sudan Khaitan was vacated during pendency of the first appeal and it stood made available to the respondent for his further use and occupation.
(ii) During pendency of this appeal another shop of respondent which was previously in the tenancy of one Shri Banwarilal was vacated and it is also now available to the respondent for further use and occupation.
(iii) Now the respondent has attained the age of more than 80 years however, there is no evidence available on record that the age of the respondent has made him incapable of doing his business independently without the help of any of his sons or any other person.
9. After narrating the facts as concurrently found by the Courts below as well as the subsequent events relevant for the disposal of this appeal, it will be useful to state in brief the well settled legal position relevant for the disposal of this appeal, which is as under:-
(i) Mere assertion on the part of the landlord that he requires the accommodation in the occupation of the tenant for the purpose of starting or continuing his own business is not decisive. It is for the Court to determine the truth of the assertion and also whether it is bona fide. The test which has to be applied is an objective test and not a subjective one. The word 'required' signifies that mere desire on the part of the landlord is not enough but there should be an element of need and the landlord must show, the burden being upon him, that he genuinely requires the accommodation for the purpose of starting or continuing his own business.
(ii) While considering the question of bona fides, what is necessary to bear in mind is that mere desire on the part of the landlord is not enough. The desire must be decided objectively and not subjectively. The burden lies upon the landlord to establish that he genuinely requires the premises for the purpose of starting or continuing his own business.
(iii) The word 'reasonable' connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word 'requirement' coupled with the word 'reasonable' means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity.
(iv) The landlord is best judge of his requirement for residential or business purpose and he has got freedom in the matter. Neither the tenant nor Court can advise the landlord how he should adjust himself and satisfy his requirement in some other way.
(v) If it is found that landlord has some other vacant premises in his possession that by itself would not be sufficient to negative the landlord's requirement shown for tenanted premises but in such a situation it is expected from the landlord to establish that the premises which is vacant is not sufficient and suitable for the purpose for which he requires the tenanted premises.
(vi) Whether the vacant premises available to the landlord is sufficient and suitable for his requirement or not will depend upon facts and circumstances of each case but mere being in possession of a vacant premises cannot negative the need shown by the landlord. Suitability of alternative accommodation available with the landlord has to be seen from convenience of the landlord and on the basis of totality of circumstances including profession, vocation, style of living, habits and background of the landlord.
(vii) If a landlord is doing his business or he is residing in a rented premises he cannot be compelled to continue to do business or reside in the same rented premises forever only to accommodate the tenant.
(viii) The normal rule is that any litigation or a suit or an original proceeding is to be tried in all stages on the cause of action and the rights and obligations of the parties are to be adjudicated upon, as they obtained or existed on the date of commencement of the lis. But this is subject to an exception that the Court may take notice of the subsequent events of facts or law which may have happened since the commencement of the lis and grant relief to the parties on the basis of altered conditions which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief. This rule is to be applied in cases where it is shown that the original relief claimed, by reason of subsequent change of circumstances has become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In such a case, the Court must take a cautious cognizance of the subsequence changes of the fact and law to mould the relief. Such consideration of subsequent events or developments must be taken when they had a material impact on those rights and obligations.
(ix) The crucial date of deciding bonafides of the need shown by the landlord is the date of the suit/petition and it must also continue throughout the progress of the litigation and must exist on the date of decree of the final Court but at the same time if during the course of litigation subsequent developments and events happens and the landlord comes into possession of vacant premises which is suitable and sufficient to satisfy the requirement of the landlord that circumstance or development may be taken note of to adjudge the bona fide or reasonability of the need shown by the landlord. Such subsequent developments and events are to be taken note of only when the need of the landlord can be shown to be completely eclipsed by such subsequent events. 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 landlord should have been completely vanished by such subsequent events.
(x) The finding of fact can be interfered in second appeal only when it is perverse based on failure to take into consideration relevant evidence on record or a misreading of material evidence.
10. In the light of facts of the case, as concurrently found by the Courts below and the subsequent events developed during pendency of appeals and the well settled legal position as referred above, my findings with reasons on the grounds raised on behalf of the appellant are as below:-
(i) It is true that during pendency of appeals two shops belonging to the respondent which were previously in the possession of the tenants have been vacated and are now available to the respondent for his and his family members use and occupation but only by that reason it cannot be said that the requirement shown by the respondent for the suit shop has been satisfied and that requirement is now no more subsists. From the evidence available on record, it is clear that the respondent owns five shops which are situated in front portion of his residential house and at the date of institution of the present suit, four of them including the suit shop were in the tenancy of different persons including the appellant whereas in the 5th shop respondent himself was doing his own business after retiring from some government service. It is also clear that the respondent has atleast four sons namely; Shri Deepak, Shri Vinod, Shri Rajneesh and Shri Kamlesh. It is also clear that Shri Deepak and Shri Vinod were doing their respective and independent business in rented shops situated at some other place whereas remaining two sons i.e. Shri Rajneedsh and Shri Kamlesh were jobless. The present suit was filed for the requirement of Shri Kamlesh whereas another suit for eviction was filed against one Shri Banwarilal for the requirement of Shri Rajneesh. There is no evidence available on record indicating that during pendency of suit and appeals the respondent has ceased to do his business which he was doing at the time of institution of this suit and, therefore, the shop which the respondent was occupying for his own business has also been vacated and is available to the respondent for the use and occupation of one of his sons. Merely because during pendency of this appeal the respondent has attained the age of 80 years it cannot be assumed, without any evidence available on record, that he has become incapable to do business independently without the help of his son or of any other person. Therefore, to adjudge the bona fide and reasonability of the need shown by the respondent for the suit shop the fact of availability of that shop can not be considered. At the most it can be considered that two vacant shops are now available to the respondent for the requirement shown by him for his sons. As alrealdy said, the requirement for the suit shop was shown for Shri Kamlesh whereas the requirement for the shop which was previously in the tenancy of Shri Banwarilal was shown for Rajneesh whereas no suit was ever filed for the requirement of Shri Vinod who was doing his business in a rented shop. In my opinion even if the requirement of Shri Kamlesh and Shri Rajneesh can be said to be satisfied by the two shops vacated by Shri Madhu Sudan Khatain and Shri Banwarilal even then the requirement for the suit shop cannot be said to be completely vanished because the respondent cannot be compelled that his another son Shri Vinod must continue to do his business in the rented shop forever as he is now doing. The respondent cannot be compelled to file another suit for eviction for the requirement his son namely Shri Vinod. If during pendency of the present lis, one of the shops which previously was in the possession of a tenant has been vacated or the suit shop gets vacated, the respondent has a complete freedom to use such shop for the business of his son Shri Vinod. The fact remains that the respondent requires atleast three shops so as that three of his sons namely Shri Vinod, Shri Rajneeesh and Shri Kamlesh can establish their respective businesses but that requirement cannot be satisfied unless the suit shop is also vacated as at present only two shops are available with the respondent for the use and occupation of his sons. The well settled legal position is that the landlord is best judge of his requirement and he has complete freedom in the matter and neither tenant nor Court can advise the landlord how he should adjust himself and satisfy his requirement in some other way. In the present case, although no requirement for Shri Vinod has been pleaded by the respondent but when during pendency of the appeal one of the shops which was previously in the tenancy of Shri Madhu Sudan Khaitan has been vacated, the respondent has a right and freedom to say that this vacated shop will be used by his son Shri Vinod who is at present doing business in a rented shop or his son Shri Rajneesh or Kamlesh. The appellant or the Court cannot advise the landlord that the shop vacated by Shri Madhu Sudan Khaitan can be used for the business of either Shri Kamlesh or Rajneesh whereas the shop vacated by Shri Banwarilal can be used by remaining of them. Looking to the well settled legal position that the subsequent events developed during pendency of the suit or appeals can be taken into consideration only when the need of the landlord can be shown to be completely eclipsed by such subsequent events and such events has a material bearing on the entitlement of the rights and obligations of the parties, the normal rule that the crucial date for deciding bonafides of the need shown by the landlord is the date of the suit is to be applied. In the present case, I am of the considered view that even by the development of the subsequent events in the form of availability of the two vacant shops to the respondent, it cannot be said that the requirement shown for the suit shop has been completely eclipsed.
(ii) In the facts and circumstances of the case no fault can be found in the judgment of the first appellate Court only on the ground that the application for amendment in the written statement filed by the appellant was dismissed without granting opportunity to the appellant to adduce evidence in support of his contention. Once this Court has taken into consideration the fact that during pendency of first appeal one vacant shop has been made available to the respondent for his use and occupation and it has also been considered by this Court that two shops have been made available to the respondent whereas the requirement is for atleast three sons and the respondent himself is continuously doing his business, there remains no need of recording evidence of the parties to decide the application filed under Order 6 Rule 17 CPC. It is not a legal requirement that in each and every case if during pendency of appeal, amendment in written statement is sought by the defendant relating to subsequent events developed during pendency of the appeal and such facts are disputed by the plaintiff, it is necessary for the appellate Court to record evidence itself or remand the matter to the Court below to record the evidence. Such an application can also be decided on the basis of affidavits also. In the present case, there was no dispute between the parties that during pendency of first appeal the shop which was in the tenancy of Shri Madhu Sudan Khaitan has been vacated and it is available to the respondent for his further use and occupation. The only dispute between the parties was about the fact who is using the same but looking to the overall facts of the present case this dispute was not much relevant.
(iii) So far as the question of comparative hardship is concerned, looking to the overall requirement shown by the respondent for his sons it cannot be said that if the decree of eviction passed by the Courts below are not set aside, more hardship will be caused to the appellant in comparison to the respondent. The respondent has a right and freedom to see that his each and every major son establishes in his life either by joining some profession or job or in some business separately and independently so that he can fulfill his obligations and duties towards his own family and if for that purpose the respondent requires three shops including the suit shop for the use and occupation of his three sons namely Shri Vinod, Shri Rajneesh and Shri Kamlesh no doubts can be raised on the same. From the evidence available on record, it is clear that even after the institution of the present suit the appellant made no efforts to take any other premises for his use and occupation either on rent or otherwise although such premises are available in the town in which the suit shop is situated. The finding arrived at by the Courts below regarding comparative hardship cannot be said to be infirm or perverse. It is well settled legal position that if after institution of suit for eviction the tenant makes no efforts to take another premises for his use and occupation either on rent or otherwise, he cannot be allowed to contend that in the event of passing of decree in favour of the landlord more hardship will be caused to him in comparison to landlord. Looking to the nature of the job pursuing by the appellant in the suit shop it cannot be said that it can be done or continued to be done in the suit shop only.
11. The net result of the above discussion is that I do not find any illegality or perversity in the judgment and decree passe by the Courts below. I also do not find any substantial question of law involved in this second appeal requiring some more elaborate consideration by this Court. Each and every substantial question of law as framed by the appellant in the memo of appeal and each and every ground raised on behalf of the appellant during the course of hearing on the point of admission of this appeal is clearly covered by well settled legal position already referred. I do not find any ground to admit the present appeal for further hearing.
Consequently, the appeal being meritless is, hereby, dismissed with costs throughout at the admission stage itself. The stay application also stands dismissed. Two months time is granted to the appellant to vacate the suit shop and hand over the peaceful possession of the same to the respondent.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary