Bombay High Court
Shri. Ashok S/O Ramkrishna Kalbande vs Shri. Bhimrao Shankar Kewate on 10 December, 2018
Author: Manish Pitale
Bench: Manish Pitale
1210WP6510.17-Judgment 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6510 OF 2017
PETITIONER :- Shri Ashok S/o Ramkrishna Kalbande,
Ori.Defendant Aged about 65 yrs, Occ : Business,
on R.A. Both R/o 40, Sanmarg Nagar, Nagpur.
...VERSUS...
RESPONDENT :- Shri Bhimrao Shankar Kewate, Aged :
Ori. Plaintiff 56 Yrs., Occ : Business, R/o Plot No.40
on R.A. Sanmarg Nagar, Hudkeshwar Road,
Nagpur.
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Mr.Abhishek Shukla, counsel for the petitioner.
Mr. D.G.Paunikar, counsel for the respondent.
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CORAM : MANISH PITALE, J.
DATE : 10.12.2018.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. The writ petition is heard finally with the consent of the learned counsel for the parties.
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2. By this writ petition, the petitioner (appellant before the Court below) has challenged order dated 28/06/2017 passed by the Court of Ad hoc District Judge-3, Nagpur (Appellate Court), whereby application filed by the petitioner seeking amendment of memo of appeal and the written statement has been dismissed.
3. It is the case of the petitioner that the respondent (original plaintiff) had filed suit for eviction of the petitioner from residential premises on the ground of bona fide need. It is also pointed out that the wife of the respondent had also been filed a suit for eviction of the petitioner from a shop in the same building, also on the ground of bona fide need. It was pleaded in these two suits that the son of the plaintiff, who was settled in Mumbai intended to resettle at Nagpur and start a business in the suit shop and that he intended to reside with the plaintiff on the ground that his father was suffering from cancer.
4. While the suit filed by the wife of the respondent herein, in respect of the shop premises was decreed only on the ground of arrears of rent and the ground of bona fide need was KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 3/12 rejected, the other suit filed by the respondent herein concerning the residential premises was decreed on the ground of bona fide need. Appeals were filed by the petitioner against both the decrees and the wife of the respondent had filed an appeal before the Appellate Court as regards rejection of her plea of bona fide need concerning the shop premises.
5. In the appeal filed by the wife of the respondent, an application was moved on behalf of the petitioner seeking amendment of the memo of appeal as well as written statement to bring on record certain subsequent events. These events were the fact that the plaintiff in the other suit i.e. wife of the respondent had received possession of five shop blocks in the same building during the pendency of the appeals before the Appellate Court. The wife of the respondent also sought amendment of the written statement on the same ground. Initially the application for amendment was rejected but, by order dated 03/07/2017 passed by this Court in Writ Petition No.6976 of 2016, the order of the Appellate Court was set aside and the application for amendment moved on behalf of the petitioner in the accompanying appeal was KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 4/12 allowed and the matter was directed to be decided by the Appellate Court. It is relevant to note that the appeal was thereafter allowed, the eviction decree was set aside and the parties were relegated to the Trial Court for consideration of the issue afresh.
6. The appeal filed by the petitioner from which the present writ petition arises remained pending before the Appellate Court wherein a similar application for amendment was moved on behalf of the petitioner seeking amendment in the memo of appeal and the written statement. The petitioner sought to bring on record the aforesaid facts of the wife of the respondent acquiring possession of the five shop blocks and also a subsequent event that the wife of the respondent was now residing in Mumbai with their son and that therefore, the very ground on which bona fide need was claimed in the present suit was rendered null and void. It was claimed that the acquisition of possession of the shops was relevant in the present case, because it pertained to claim of the son of the respondent to relocate to Nagpur and to start business and to live with the respondent.
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7. By the impugned order, the Appellate Court has rejected the application. While doing so it was recorded that although the petitioner had claimed that by the amendment application what was sought to be placed on record were subsequent events, but it was not specified as to what were the subsequent events.
8. The Appellate Court also recorded that other pleadings sought to be added by way of amendment were nothing but a repetition of what was already stated on behalf of the petitioner. On this basis, the impugned order was passed, dismissing the application.
9. Mr. Shukla, learned counsel appearing for the petitioner, submits that the subsequent events were specifically stated in the application for amendment and the proposed amendment in the appeal memo as well as the written statement and that the Appellate Court was not justified in observing that specific subsequent events were not stated on behalf of the KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 6/12 petitioner. It was further submitted that as per the law laid down by the Hon'ble Supreme Court and this Court, subsequent events that have a bearing on the question of bona fide need of the landlord are always permitted to be placed on record and that dismissal of the application of the petitioner was not justified. Reliance is placed on judgments of the Hon'ble Supreme Court in the case of Hasmat Rai and another v. Raghunath Prasad, reported in (1981) 3 SCC 103, Sheshambal (dead) through LRs. v. Chelur Corporation Chelur Building and others, reported in (2010) 3 SCC 470 and judgment of this Court in the case of Francisco Patrico Rodrigues and another v. Aleixo Cipriano Albuquerque and others, reported in 2012(1) Mh.L.J. 603.
10. Per contra, Mr. D.G.Paunikar, learned counsel appearing for the respondent, submits that no error can be attributed to the Appellate Court in the impugned order for having dismissed the application of the petitioner because it has been specifically observed that the amendment sought to be brought in the memo of appeal and the written statement stated nothing but facts that were already on record and that the amendment was KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 7/12 clearly not necessary for proper adjudication of the appeal. It was submitted that the subsequent event of possession of five shops by the wife of the respondent in the same building had no concern with the present case because it pertained to bona fide need in the context of the residential premises. The claim of the petitioner that the wife of the respondent had relocated to Mumbai was false and, therefore, the said amendment was correctly rejected by the Appellate Court. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Shakuntala Bai and others v. Narayan Das and others, reported in AIR 2004 SC 3484.
11. Heard counsel for the parties. A perusal of the application for amendment filed on behalf of the petitioner herein seeking amendment of the memo of appeal and the written statement shows that the petitioner desired to bring on record two major events that occurred subsequent of filing of appeal, firstly, the fact of acquisition of five shops in the same building by the wife of the respondent and secondly, that the wife of the respondent had relocated to Mumbai with their son. It is claimed that these two subsequent events had direct bearing on the KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 8/12 question of bona fide need of the respondent for the residential premises. It is further claimed that such an amendment in the memo of appeal as well as written statement is necessary because it goes to the very root of the matter.
12. On facts, it is not disputed by the learned counsel appearing for the respondent that the two aforesaid alleged subsequent events have occurred subsequent to filing of the appeal by the petitioner. In fact, the acquisition of possession of five shops in the same building after filing of the appeal by the petitioner is not denied on behalf of the respondent. Although it is claimed that the said fact has no bearing on the present case because this case pertains to bona fide need in respect of the residential premises. It is further contended that the claim of the petitioner that the wife of the respondent has relocated to Mumbai is false.
13. What emerges from the documents on record and the contentions of the parties is that there are two specific subsequent events claimed on behalf of the petitioner, to have occurred after KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 9/12 filing of the appeal. Therefore, the observation made by the Appellate Court in paragraph-7 of the impugned order that the petitioner failed to specify which event took place after filing of the appeal, is wholly unsustainable. As regards the question as to whether the said subsequent events have a bearing on the question of bona fide need of the respondent as regards the residential premises, would be a matter to be taken up and decided on merits. Similarly, the claim that the subsequent event that the wife of the respondent had relocated to Mumbai was false, could also not have been examined at the stage of deciding whether the amendment was to be allowed. The learned counsel appearing for the petitioner is justified in relying upon the judgment of the Hon'ble Supreme Court in the case of Hasmat Rai and another v. Raghunath Prasad (supra) wherein it has been categorically held that "If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and and the court including the appellate Court has to examine, evaluate and adjudicate the same". The Hon'ble Supreme Court in the case of Sheshambal (dead) through LRs.
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v. Chelur Corporation Chelur Building and others (supra) has held in para 17, which reads as follows :-
"17. While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the Court in such a situation is expected to do is to examine the impact of the said subsequent development on the right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted."
14. In the aforesaid judgment of Sheshambal (dead) through LRs. v. Chelur Corporation Chelur Building and others (supra) the Hon'ble Supreme Court has relied upon earlier judgment in the case of Hasmat Rai and another v. Raghunath Prasad (supra) and the position of law has been made clear. The judgment in the case of Shakuntala Bai and others v. Narayan Das and others (supra) relied upon by the counsel appearing for the respondent is distinguishable on facts.
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15. What emerges from the position of law as discussed above is that events that are subsequent to filing of appeal by a tenant like the petitioner in the present case, are required to be brought on record for proper adjudication of the claim of bona fide need of the landlord. The decision on whether the facts regarding subsequent events would have any bearing on merits in this case would be something which could be decided after the amendment in the memo of appeal and the written statement has been granted. The right of the respondent to show that on merits the said subsequent events have no bearing and do not assist the petitioner in any manner shall remain alive and it will be open to the respondent to show on merits that the claim of bona fide need is still made out and that the decree is sustainable.
16. In the light of the above, the present writ petition is allowed. The impugned order dated 28/06/2017 is quashed and set aside. The application for amendment of the memo of appeal and the written statement, filed on behalf of the petitioner before the Appellate Court stands allowed. The consequential KHUNTE ::: Uploaded on - 14/12/2018 ::: Downloaded on - 26/12/2018 23:40:40 ::: 1210WP6510.17-Judgment 12/12 amendment shall be carried out within a period of four weeks by the petitioner. Needless to say that the respondent shall be entitled to make consequent amendment in his pleadings before the Courts below.
17. Rule is made absolute in the aforesaid terms with no order as to costs.
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