Rajasthan High Court - Jaipur
Smt Vimla Devi Sharma And Ors vs Jhamman Lal Jain on 22 March, 2012
In The High Court Of Judicature For Rajasthan Bench At Jaipur SB Civil Writ Petition No.6671 of 2008 Smt.Vimla Devi & others v. Jhamman Lal Jain Date of Judgment March 22, 2012 Hon'ble Dr. Meena V. Gomber Mr. R.K.Agarwal, Sr.Advocate, with Mr. Alok Chaturvedi, for the petitioner Dr. P.C.Jain, for respondent
Reportable By way of this petition, the petitioners have assailed the order dated 2.7.2008 passed by Additional District Judge No.2, Alwar in Civil appeal no.50/2004 whereby the application filed by petitioners (plaintiffs) seeking amendment of their pleadings on the ground that after the judgment and decree passed by the trial court, original plaintiff Kishan Chand Sharma for whose business the premises in question were needed, has died and, therefore, the premises in question are required for the business of his widow Vimla Devi, was dismissed.
Briefly stated facts of the case are that Kishan lal Sharma, the original plaintiff, the predecessor of present petitioners instituted a suit against the respondent for eviction, inter alia, on the ground of reasonable and bona fide necessity of the suit shop for carrying on stationery business therein. Said suit was decreed in favour of late Kishan lal Sharma (plaintiff) on 12.10.2004, as against which the defendant (respondent herein) filed an appeal before the District Judge, Alwar, which came to be transferred to the court of Additional District Judge No.2, Alwar.
The respondent/defendant filed an application under O.6 R.17 of the Code of Civil Procedure (hereafter referred to as 'the Code') for amending the written-statement at the appellate stage, praying therein that on account of death of the original plaintiff, reasonable and bona fide necessity of the shop in question eclipsed. Said application was kept pending by the First Appellate Court with the observation that it would be decided along with the appeal.
Being aggrieved by this order of First Appellate Court, the respondent filed writ petition no.2688/08, which was allowed and the petitioners had also been given liberty to amend the plaint based on subsequent event.
Accordingly, the petitioners moved application under O.6 R.17 of the Code seeking amendment of plaint based on subsequent event that after the death of her husband, his widow petitioner no.1 would carry on business of stationery in the shop in question. This application was rejected by the First Appellate Court in Civil Appeal no.50/2004 by order dated 2.7.2008. Hence the present petition.
Heard learned counsel for the parties and perused the record as also the impugned orders.
Learned counsel for the petitioners submitted that the original plaintiff Kishan Lal Sharma required the shop in question for the stationery and books shop to have independent earning for him and his wife to support them in their post-retirement age. Now since he has passed away, his widow needs the shop to earn for her survival. According to him, the learned First Appellate Court has erred in holding the petitioner no.1 was old and that by amending the pleadings, the nature of suit would change because the necessity of the shop in question was for the landlord Kishan Lal Sharma and his wife as they could not be compelled to be dependent on their children and that the widow can run the shop by hiring a younger staff/assistant. It was prayed that the impugned order be set aside as the amendment on account of subsequent event, can be sought even at the appellate stage.
On the other hand, learned counsel for the respondents supporting the impugned order, contended that the bona fide necessity of the original plaintiff came to an end after his death and by amendment of the pleadings, the nature of suit will change and such amendments cannot be allowed.
Considered the rival contentions advanced by the parties and have carefully gone through the case law cited at Bar.
One of the grounds for eviction contemplated by the Rent Control Legislation is the need of owner/landlord to have his premises, residential or non-residential, for his own use or his own occupation. The expression 'reasonable and bona fide necessity' employed in the Rajasthan Rent Control Act, postulates that there must be an element of need as opposed to a mere desire or wish. The distinction between desire and need have to be kept in mind but not so as to make even the genuine need as nothing but a desire. While considering the bona fides of the need of landlord, the crucial date is the date of petition. The normal rule is that rights and obligations of the parties are to be determined as they were when the lis commenced and the only exception is that the court is not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events had an impact on those rights and obligations. It is stark reality that longer the life of litigation, the more would be the number of developments sprouting up during the long interregnum.
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 litigant, despite the impairment already caused.
In the matter of Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700, Hon'ble Apex Court held that when subsequent events are pleaded in the course of an appeal or proceedings 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 R.1 of O.19 of the Code. 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, if it 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. In (1934) 294 US 600 at p.607, Hughes C.J. Said:
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.
In the case of Rajesh Kumar Aggarwal & others v. K.K.Modi & others, (2006) 4 SCC 385, the Apex Court while dealing with an appeal involving the issue of amendment of pleadings on account of subsequent events held in paras 15, 18 and 20 as under:-
The object of Order 6 Rule17 is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. The rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the court. The court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. The amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice.
Further, in paras 19, 18 and 28, in Rajesh Kumar Aggarwal's case (supra), the Hon'ble Apex Court held as under :-
While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment...
In Shakuntala Bai & others v. Narayan Das & others, (2004) 5 SCC 772, Apex Court while considering the effect of death of original landlord during pendency of appeal against eviction decree, held that Lrs of deceased landlord are entitled to defend the appeal on the same ground. Bona fide need of landlord has to be examined as on the date of institution of the proceedings. In that case also, after death of the original landlord during pendency of appeal, the plaint was amended to the effect that the business shall be carried on by widow of the deceased landlord assisted by one of her sons. It was held that by reason of death of the original landlord, bona fide need would not come to an end.
In the same manner Hon'ble Apex Court in the case of Kamleshwar Prasad v. Pradumanju Agarwal (dead) by Lrs, (1997) 4 SCC 413, where the suit for eviction had been filed by the landlord on the ground of bona fide requirement of the premises for starting business, and the Appellate authority held that landlord required the premises for starting the business but during pendency of writ petition filed by tenant the landlord died. It was held that even then the bona fide need cannot be said to have lapsed as the business in question can be carried on by his widow or any son.
The argument of learned counsel for the petitioners cannot be ignored that the need of the premises in dispute not only persists but has been accentuated on account of death of Jhamman Lal Jain original landlord. According to him, the business shall be carried on by his widow who can be assisted by younger staff and that the business was required to be carried on for her livelihood because after her husband's death she needs it all the more for her survival. According to him, the object of Rent Control Legislation is to save harassment of tenants from unscrupulous landlords. The object is not to deprive the owners of their properties for all times to come. Original plaintiff died after obtaining the decree of eviction in his favour.
Two Judge Bench of Apex Court in the matter of P.V. Papanna v. K. Padmanabhaiah, (1994) 2 SCC 316, held that where the trial court had passed a decree for eviction which was challenged by the tenant by filing a revision in the High Court which was dismissed but four years' time was granted to vacate the premises. The special leave petition preferred by the tenant was also dismissed. During the pendency of this period of four years, the landlord died leaving a will in favour of his brothers. When the tenant did not vacate the premises after the expiry of four years, the appellants applied for execution of the decree. The execution petition was allowed by the trial court and order for eviction was passed but the order was reversed by the High Court in a revision filed by the tenant on the ground that the cause of action did not survive on the death of the landlord and the appellants (legatees claiming as legal representatives of the deceased landlord) could not execute the decree for eviction which was purely personal. After examining several earlier decisions, the Court held as under : (SCC p.322 , para 18)
18. For the foregoing discussion, we must hold that events which take place subsequent to the filing of an eviction petition under any Rent Act can be taken into consideration for the purpose of adjudication until a decree is made by the final court determining the rights of the parties but any event that takes place after the decree becomes final cannot be made a ground for reopening the decree. The finality to the dispute culminating in the decree cannot be reopened by the executing court for readjudication on the ground that some event or the other has altered the situation. As a corollary thereto it must also be held that once the decree became final it became a part of the estate of the landlord and therefore the appellants as legal representatives of the deceased landlord are entitled to execute the same.
In this legal background, if the facts of the case in hand are looked into, during the pendency of appeal filed by the defendant (tenant) the original landlord died. The matter was yet to be finally decided and the event occurred during pendency of appeal and not after the finality of the decree. As held by Apex Court in Shakuntala Bai's case and in Kamleshwar Prasad's case (supra), the bona fide necessity of the original plaintiff for running stationery shop for him and his wife does not come to an end and the widow can claim the necessity for running the shop for her suvival.
In view of foregoing discussion, it can be concluded that the impugned order cannot sustain and, therefore, deserves to be set aside in view of principles of law laid down by Hon'ble Apex Court while discussing the effect of death of a landlord during the pendency of the proceedings in its several decisions discussed herein-above.
Accordingly, the writ petition is allowed and order impugned is set aside with no order as to costs.
(Dr. Meena V. Gomber) J.
db [All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.] Deepankar Bhattacharya PS