Rajasthan High Court - Jaipur
Kailash Chand vs Gyan Chand Chordia And Anr on 4 February, 2014
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Writ Petition No.16654/2013 Kailash Chand-Petitioner Versus Gyan Chand Chordia (Jain) & Anr.-Respondents Date of Order-::-4th February 2014 Hon'ble Ms. Justice Bela M. Trivedi Mr. Ajeet Bhandari, for petitioner/s. Mr. J.P. Goyal Senior Counsel with Mr. Abhi Goyal, for respondent/s. Reportable By the Court:-
1. The present writ petition has been filed by the petitioner-defendant-appellant under Article 227 of the Constitution of India, challenging the order dated 12.08.2013, passed by the Additional District Judge No.1, Ajmer (hereinafter referred to as the appellate court) in Civil Misc. Appeal No.138/2007, whereby the appellate court has dismissed the application of the petitioner-appellant seeking amendment of the written statement under Order VI Rule 17 of CPC, at the appellate stage.
2. The short facts giving rise to the present petition are that the respondent No.1-plaintiff had filed the suit against the petitioner-defendant seeking eviction in respect of the tenanted shop on the ground of bonafide requirement for his wife, non payment of rent and nuisance. The said suit was decreed by the trial court vide the judgment & decree dated 18.05.2007, against which the petitioner-appellant had preferred the appeal before the appellate court.
3. It appears that during the pendency of the appeal, the petitioner-appellant sought the amendment in the written statement for bringing on record subsequent events, contending interalia that the respondent had got the possession of one tenanted shop admeasuring 40x60 feet, and the respondent had also constructed three rooms, one hall, kitchen, etc. on the first floor of his house. The said application was resisted by the respondent-plaintiff, contending interalia that though the possession of one godown was received by him from one tenant Ashok Kumar, the said godown was being used by his son Ankit Kumar for his business purposes and that the additional construction made by him was for his residential purpose, whereas the suit shop was required for his wife for her tailoring business. The appellate court after considering the factual and legal aspect of the matter, dismissed the application of the petitioner seeking amendment in the written statement. Being aggrieved by the said order, the present writ petition has been filed.
4. It has been sought to be submitted by the learned counsel Mr. Ajeet Bhandari for the petitioner that the subsequent events which have taken place during the pendency of the appeal, being germane to the issue involved in the appeal, were required to be brought on record to show that the respondent did not require the suit premises bonafidely. Mr. Bhandari has relied upon the decisions of the Apex Court in cases of Hasmat Rai & Anr. Versus Raghunath Prasad, (1981) 3 Supreme Court Cases 103, Sheshambal (Dead) Through LR's Versus Chelur Corporation Chelur Building & Ors., (2010) 3 Supreme Court Cases 470, and in case of Kedar Nath Agrawal (Dead) & Anr. Versus Dhanraji Devi (Dead) by LRs & Anr., (2004) 8 Supreme Court Cases 76, to submit that the subsequent developments having bearing on the right to relief claimed by the party cannot be shut out from consideration and the courts are expected to examine the impact of such subsequent development and if necessary, mould the relief suitably.
5. However, the learned Senior Counsel Mr. J.P. Goyal for the respondent submitted that the possession of godown received from another tenant was being used by the son of the respondent for his business purpose, and the construction made by the respondent on the first floor of his residence was being used for residential purpose, which could not be used for tailoring purpose by his wife. According to him, the subsequent events having no bearing on the relief claimed by the respondent, the appellate court has rightly dismissed the said application of the petitioner. The learned counsel has relied upon the decision of the Apex Court in case of Gaya Prasad Versus Pradeep Srivastava, (2001) 2 Supreme Court Cases 604, and the other decisions of this Court, in support of his submissions.
6. Having regard to the submissions made by the learned counsels for the parties, and to the impugned order passed by the appellate court, it appears that the amendment in the written statement has been sought by the petitioner-appellant, when the appeal was pending for the final disposal. It further appears that the respondent-plaintiff while objecting to the application for amendment made by the petitioner, had admitted of having received the possession of a godown from another tenant as a result of the decree passed against him, however according to the respondent, in the said godown, his son Ankit Kumar was carrying on his business of computers, and was running an academy. The respondent has also admitted the construction of one room, hall, kitchen, etc., having been made at his residential premises.
7. However, the question is whether the petitioner should be permitted to amend the written statement at the stage of final hearing of the appeal, under the guise that some subsequent events have taken place, which have no bearing on the appeal. Heavy reliance has been placed by Mr. Bhandari for the petitioner on the decision of the Apex Court in case of Hasmat Rai & Anr. Versus Raghunath Prasad (supra) to submit that the requirement of the landlord must continue to exist till the final determination of the case, and the appeal being continuation of the suit, his requirement also must continue to exist till the final determination of the appeal. Apart from the fact that the said view was expressed by the Apex Court prior to the amendment in the provision contained in Order VI Rule 17, the said decision has been considered by the Apex Court in the later case of Gaya Prasad Versus Pradeep Srivastava (supra), in which the Apex Court has observed as under:-
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.
15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused.
8. In view of the above stated legal position, the Court is of the opinion 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. Though the courts should examine the impact of the subsequent events which might have taken place after filing of such eviction petition, the courts need not consider each and every subsequent event more particularly the one which is not germane to the relief claimed. What is expected from the Courts is to examine the impact of the subsequent event on the right to relief claimed by the party, while considering the application seeking amendment in the pleadings.
9. In the instant case, the appellate court after examining the subsequent developments as alleged by the petitioner and objected by the respondent, has found that the subsequent events sought to be incorporated in the written statement, would not have any impact on the relief claimed by the respondent-plaintiff and that the bonafide requirement of the respondent-plaintiff was existing pending the appeal also. The appellate court has rightly observed after following the decision of the Apex Court in case of Gaya Prasad Versus Pradeep Srivastava (supra) that it would become an endless litigation if each and every subsequent event is permitted to be incorporated by permitting amendment in the pleadings. The said order being just and proper, this Court is not inclined to interfere with the same. The present writ petition, therefore, deserves to be dismissed, and is accordingly dismissed.
(Bela M. Trivedi) J.
R.Vaishnav
32. All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Ramesh Vaishnav Jr.P.A