Rajasthan High Court - Jaipur
Tala Ram vs Addi District And Session Anr on 28 November, 2011
S.B. Civil Writ Petition No.16250/2011 S.B.Civil Misc. Stay Appl.No.14964/2011 Tola Ram Vs. Addl.District Judge & Anr. Dated :28.11.2011 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Shobhit Tiwari, for the petitioner. Mr. JP Gupta, for the respondents.
*** By way of the instant writ petition, the petitioner has beseeched to quash and set aside the order dated 3rd October, 2011, whereby the learned Additional District Judge, Beawar, District Ajmer dismissed the application of the petitioner-applicant filed under Order 6 Rule 17 of CPC seeking amendment in the written statement of defence.
2. Having heard the learned counsel for the parties and carefully perused the relevant material on record, it is noticed that respondent-plaintiff filed a civil suit before the learned trial Court for eviction of tenants-petitioner on the ground of bonafide necessity and recovery of rent. After conclusion of trial the suit came to be decreed in favour of the respondent-plaintiff and against the petitioner-defendant. It is stated by the petitioner that during pendency of the suit Dr. Ashok Gangwani vacated the shop on 22nd March, 2010 and handed over its possession to the respondent-plaintiff. The petitioner had filed an appeal against the judgment of the trial Court on 22nd February, 2010.
3. Learned counsel for the petitioner took me through the statement of the plaintiff deposed before the trial Court as also the cross examination and contended that the respondent-plaintiff had categorically deposed on oath that in case the shop was vacated by Dr. Ashok Gangwani, he could let out the same to the petitioner-defendant. After the shop having been vacated by Dr. Ashok Gangwani, the bonafide necessity of Ranjeet has come to an end and thus, on account of subsequent events having emerged in the case, the amendment was required to be necessarily made in the written statement of defence. The learned trial Court sans assigning any cogent reason, arbitrarily dismissed this application, whereas the view of the Hon'ble Apex Court in this regard is that when any subsequent event emerges, the party should be permitted to bring that event on record, by way of an amendment in the pleadings. In view of this position, the writ petition deserves to be allowed and the impugned order needs to be set aside.
4. E-converso, the learned counsel for the respondent-plaintiff contended that the court has to see the bonafide necessity of the landlord in respect of suit premises of that day when the suit was filed by the respondent-plaintiff. If any subsequent event with regard to the necessity of suit premises emerges, that does not mean that the bonafide necessity of that day ceased or became non-existent.
5. Learned counsel cited two judgments one of Phool Chand V. Appellate Rent Tribunal, Bikaner & Ors. reported in AIR 2008 Rajasthan 156 and second, Govind Kumar Soni Vs. Addl.Dist.Judge & Anr. reported in 2010(2) CDR 1090 (Raj.) to substantiate his case.
6. Learned counsel for the petitioner is also found to have cited one case of Murlidhar Vs. Nand Kishore & Ors. reported in 2006 (2) DNJ, 861.
7. Having reflected over the submissions made at the bar and carefully scanned the judgments cited by the learned counsel for the parties, it has become necessary to have a bird's eye view of the afore-stated judgments.
8. In the case of Murlidhar Vs. Nandkishore & Ors (Supra) this Court has observed thus in para 16 thus:
This, however, does not mean that events happening after institution of suit/proceeding, cannot be considered at all. It is the power and duty of the Court to consider changed circumstances.? 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.
[Emphasis Supplied]
9. Learned counsel for the petitioner submitted that in view of this observation of this Court, if any subsequent change or circumstance emerges and the relief claimed originally becomes inappropriate then such subsequent events should be taken into account and the same should be taken on record.
10. E-contra, this Court, while placing reliance on the judgment of Pratap Rai Tanwani v. Uttam Chand, reported in AIR 2005 SC 1274 observed that crucial date of bonafide necessity was the date when the application was filed by the plaintiff before the trial Court.
11. This Court further held:
In my opinion, the plea of the petitioner that learned Appellate Rent Tribunal ought to have allowed his application for amendment is lacking feet to stand because the fact of appointment of Hanuman was not in existence at the stage of trial, and for new ground which came in existence during appeal and if such application will be allowed at appellate stage then certainly at every stage after adjudication, the parties will take plea of amendment and no trial Court will be able to adjudicate the matter finally and there will no end of dispute.
12. In the case of Pratap Rai Tanwani reported in AIR 2005 SC 1274 (supra), the Hon'ble Apex Court gave a complete answer to the aforesaid question which covered the present controversy. In that case also, an application to amend the written statement was filed on the ground that during the pendency of the matter one Naresh Talreja son of Uttam Chand had acquired a degree in Engineering and got employment in an Indian company and subsequently settled in USA and was working there with no chance of coming back to India. With these facts, it was prayed in that case that the alleged bona fide need and requirement for which the application was filed had become non-existent and, therefore, plaintiff was not entitled for any relief. The Hon'ble Apex Court, while dealing with the similar circumstances in case of Pratap Rai Tanwani, reported in 2004(8) SCC 490:(AIR 2005 SC 1274) held thus:
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. The Hon'ble Apex Court further cautioned we cannot forget that while considering the bona fides of the need of the landlord the crucial date is the date of the petition. In Ramesh Kumar V. Kesho Ram (AIR 1992 SC 700) a two-Judge Bench of this Court pointed out that 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 was that the Court was not precluded from moulding the reliefs appropriately in consideration of subsequent events provided such events and an impact on those rights and obligations.
10.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 list. If the cause of action is to be submerged in such subsequent events on account of malady of the system, it shatters the confidence of the litigation despite the impairment already caused.
14. In these circumstances, in this case also the ground which was non-existent on the date of filing eviction suit and even on the date of final adjudication by the Rent Tribunal, cannot be allowed to take away the ground of personal bona fide necessity of the respondent-plaintiff merely because one of his sons, got employment in the Bank.
15. The contention of the petitioner that under O.6, R.17, at any stage, amendment can be allowed cannot be accepted in view of the amended CPC in which a proviso is added to O.6, R.17 which clearly provides that amendment can be allowed at the stage of trial only, therefore, the learned Appellate Rent Tribunal has rightly rejected the application of the petitioner under O.6, R.17 C.P.C. so also in view of the judgment of Hon'ble Apex Court in Pratap Rai Tanwani (AIR 2005 SC 1274) (supra), wherein, it has been categorically held that the crucial date is the date of petition. Therefore, learned Appellate Rent Tribunal has also rightly refused to entertain the application under S.21 of the Rent Control Act, 2001.
14. Adverting to the facts of the instant case, it is noticed that the learned appellate Court having discussed all the facts and circumstance of the case adlongum and placing reliance on the decision of this Court and of the Hon'ble Apex Court observed that the crucial date for determining the bona fide necessity of the landlord was the date when the lis commenced. The judgment cited by the learned counsel for the petitioner is of no consequence and renders no assistance to the petitioner. It is a settled law that the bonafide necessity of the landlord is to be considered of the day when the necessity arose and the crucial date is the date of the petition. If any subsequent event emerges, the necessity of the landlord does not cease nor the bonafide necessity of that day becomes non-existent. Viewed from this angle, the appellate Court is found to have rightly dismissed the application of the petitioner-tenant seeking amendment in the written statement of defence. The impugned order rendered by the appellate Court is found to be just and proper and suffers from no infirmity and thus, the same warrants no intervention.
15. For the reasons stated above, the writ petition fails and the same being bereft of any merit deserves to be dismissed which stands dismissed accordingly.
16. Consequent upon the dismissal of the writ petition, the stay application does not survive and the same also stands dismissed.
(MAHESH BHAGWATI),J.
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