Rajasthan High Court - Jaipur
Shyam Sunder vs Prakash Chand on 27 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
O R D E R
S.B. Civil Second Appeal No. 91/2012
Shyam Sunder Vs. Prakash Chand
Date of Order : 27.06.2012
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. Peush Nag for the appellant.
Mr. Shyam Kant Sharma for the respondent.
BY THE COURT:-
REPORTABLE 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 10.01.2012 passed by the Additional District Judge (Fast Track) No.2, Beawar (District Ajmer) in Civil Regular Appeal No.1/2009 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 18.8.2006 passed by the trial Court i.e. Civil Judge (Junior Division) No.2, Beawar (District Ajmer) in Civil Suit No.199/1998 whereby the trial Court decreed the suit for eviction filed by the plaintiff-respondent.
2. Brief relevant facts for the disposal of this appeal may be stated as below:-
(i) Originally the suit for eviction from the suit shop was filed by Shri Nathmal, elder brother of plaintiff-respondent-Shri Prakash Chandra, on 2.7.1998 in the trial Court with the averment that the tenancy commenced with effect from 1.6.1995 and the appellant is liable to be evicted on the grounds of default in payment of rent, subletting, damage caused to the suit shop and nuisance.
(ii) Written statement was filed by the appellant on 1.9.1999 and grounds taken in the plaint were specifically denied. Rejoinder to the written statement was also filed by the original landlord on 11.5.2000.
(iii) On 13.3.2001 an application under Order 22 Rule 10 CPC was filed by the present respondent stating therein that by virtue of a consent decree dated 7.1.1999 passed on the basis of compromise the suit shop has come in sole ownership of him and since then he has become landlord of the appellant in respect of the suit shop. It was prayed in the application that he may be substituted in place of the original landlord Shri Nathmal. Reply to the application was filed by the appellant on 2.6.2001 and the trial Court after hearing both the parties allowed the application vide order dated 28.8.2001. It is an admitted fact that the order dated 28.8.2001 was not challenged by the appellant at that stage of the proceedings.
(iv) Another application under Order 6 Rule 17 CPC for amendment in the plaint was filed by the present respondent on 9.4.2001 and it was prayed that the suit shop is bonafidely and reasonably required by him for his use and occupation and the pleadings to that effect may be added in the original plaint. Reply to the application was filed by the appellant on 11.5.2001 contesting the claim made by the respondent and the trial Court after hearing both the parties allowed the application for amendment vide order dated 23.10.2002. It is an admitted fact that that order was also not challenged by the appellant at that stage of the proceedings.
(v) In consequence of the orders so passed by the trial Court the present respondent filed amended plaint on 22.11.2002 and appellant also filed amended written statement on 2.1.2003 and on the basis of the pleadings necessary issues were framed by the trial Court on 21.1.2003. It is to be noted that no specific issue was framed in regard to partial eviction from the suit shop.
(vi) Still another application was moved by the present respondent on 20.3.2006 under Order 14 Rule 5 CPC for framing of additional issues as mentioned in the application. Reply was not filed by the appellant to the application and that application was not separately decided by the trial Court.
(vii) In the meanwhile both the parties produced oral as well as documentary evidence in support of their respective case. On 22.7.2006 none appeared on behalf of both the parties and the trial Court made an order to proceed further under Order 17 Rule 2 CPC on the ground that evidence has already been produced by the parties and the case was posted for judgment on 29.7.2006.
(viii) On 29.7.2006 the judgment was not delivered but counsel for both the parties appeared on 31.7.2006 and arguments were re-heard by the trial Court and ultimately judgment and decree was passed on 18.8.2006 whereby the suit filed by the respondent was decreed.
(ix) Being dissatisfied with the judgment and decree passed by the trial Court the tenant-appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 10.1.2012.
(x) In the memo of appeal filed before the appellate Court although specific grounds were raised by the appellant challenging the order dated 28.8.2001 and 23.10.2002 whereby the application filed by the respondent under Order 22 Rule 10 and Order 6 Rule 17 CPC were allowed but no separate findings were given by the appellate Court either way. Still dissatisfied, the tenant-appellant is before this Court by way of this civil second appeal.
3. Assailing the judgments passed by the Courts below learned counsel for the appellant has raised the following grounds:-
(i) Although specific grounds were taken by the appellant in the memo of appeal filed before the first appellate Court challenging the order dated 28.8.2001 by which the application under Order 22 Rule 10 CPC filed by the respondent was allowed and also the order dated 23.10.2002 by which the amendment application was allowed by the trial Court but no findings either way were given by the Court below and the non-consideration of those grounds and absence of findings on the same amount to illegality and perversity requiring interference of this Court in this second appeal. According to learned counsel for the appellant suitable substantial questions of law are required to be framed on that basis and the appeal is liable to be admitted for further hearing.
(ii) Otherwise also, order dated 28.8.2001 by which the application for substitution of the respondent in place of the original landlord was allowed is illegal and perverse as it is based on a document which was inadmissible in evidence by the reason that it is un-registered and only a photostat copy of the same was filed. According to learned counsel, the case of the respondent was that in a partition suit between the respondent and his brothers compromise was filed before the Court concerned and on the basis of the compromise a decree for partition was passed by that Court on 7.1.1999 and in accordance with that decree the suit shop came into the sole ownership of the respondent. It is the contention of the counsel that the consent decree passed in the partition suit was required to be compulsorily registered under Section 17 (2) (vi) of the Indian Registration Act and in absence of the same it was inadmissible in evidence even for the purpose of substitution of the respondent in place of the original landlord. It was also essential for the respondent to produce certified copy of the consent decree dated 7.1.1999 but only a photostat copy thereof was produced before the trial Court.
(iii) Order dated 23.10.2002 by which application under Order 6 Rule 17 CPC for amendment in the original plaint was allowed by the trial Court is also illegal and perverse by the reason that it is against the undertaking given by the respondent in the course of hearing of the application for substitution. According to learned counsel in the order dated 28.8.2001 there is specific mention of the fact that respondent made a specific prayer to the effect that he will not seek such amendment in the suit adverse;u effecting the cause of action but even then application for amendment in the original plaint was filed by him seeking incorporation of a new ground of eviction on the basis of bonafide and reasonable necessity and the learned trial Court without taking into consideration and rather overlooking the undertaking given by the respondent allowed the amendment. According to learned counsel by his conduct the respondent waived his right of seeking amendment in the plaint and he was estopped to seek amendment incorporating a new ground on the basis of reasonable and bonafide necessity or any other ground.
(iv) Although, orders dated 28.8.2001 and 23.10.2002 passed by the trial Court were not challenged by the appellant at that stage of the proceedings by way of revision petition or writ petition but the same cannot prevent the appellant to challenge the same in appeal filed under Section 96 CPC as Section 105 CPC permits him to do so and infact the same were challenged by taking specific grounds in the memo of appeal filed before the first appellate Court.
(v) The application under Order 6 Rule 17 CPC for amendment in the original plaint was filed by the respondent on 9.4.2001, a date on which he was not a party to the suit as plaintiff or otherwise as he was substituted as plaintiff in place of the original landlord only vide order dated 28.8.2001 and thereafter no further application for amendment was filed by him and, therefore, no order for amendment in the plaint could have been passed by the trial Court on the application dated 9.4.2001. According to learned counsel an order for amendment in the plaint was liable to be passed only on an application filed by the respondent after he was made party in the suit.
(vi) Although, amended plaint incorporating a new ground of eviction on the basis of bonafide and reasonable necessity was filed on 22.11.2002 but the amendment related back to the date of institution of the original suit i.e. 2.7.1998 and the same being filed within the period of five years from the date of commencement of the tenancy i.e. 1.6.1995, the suit for eviction on the basis of bonafide and reasonable necessity for the suit shop was barred by Section 14 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act) but that aspect of the matter was not properly considered by the Courts below. According to learned counsel for the appellant it is well settled legal position that if amendment in plaint is allowed, the same relates back to the date on which the original suit was filed unless the Court specifically otherwise directs. In the present case no order was passed by the trial Court that the amendment will have prospective effect and in absence of the same the amendment made in the plaint related back to the date of the original suit and being within the prescribed period of five years under Section 14 (3) of the Act the suit was not maintainable on the ground of bonafide and reasonable necessity.
(vii) Although, reply to the application under Order 22 Rule 10 CPC was filed by the appellant on 21.6.2001 and that reply is available on the file of the trial Court but even then in the order dated 28.8.2001 it has been mentioned that no reply to the application was filed by the appellant and the same is clear indication of the fact that the application was allowed without considering the reply and the objections taken by the appellant in the same and that also makes the order dated 28.8.2001 illegal and perverse.
(viii) It is an admitted fact that issue in respect of partial eviction from the suit shop was not framed by the trial Court although an application under Order 14 Rule 5 CPC was filed by the respondent and the same remained un-decided but even then the quesiton of partial eviction was decided in favour of the respondent without there being a specific issue in that regard and that also makes the judgments passed by the Courts below illegal and perverse.
(ix) All these grounds raised on behalf of the appellant make the judgments passed by the Courts below illegal and perverse requiring interference of this Court even in the second appeal and the substantial questions of law framed by the appellant in the memo of appeal or any other suitable substantial questions of law are required to be framed by the Court.
Accordingly, it was prayed that the appeal may be admitted for further hearing.
In support of his submissions, learned counsel for the appellant relied upon the cases of Ishar and others Vs. Sudesh Kumar and another reported in AIR 1973 Punjab and Haryana 392, P.Dasa Muni Reddy Vs. Appa Rao reported in AIR 1974 (SC) 2089, Lachoo Mal Vs. Radhey Shyam reported in AIR 1971 (SC) 2213, Bhoop Singh Vs. Ram Singh Major & ors. reported in AIR 1996 (SC) 196, Provash Chandra Dalui & anr. Vs. Niswanath Banerjee & anr. reported in AIR 1989 (SC) 1934.
4. On the other hand, learned counsel for the respondent controverting each and every submission raised on behalf of the appellant, submitted that the order dated 28.8.2001 and 23.10.2002 got finality as the same were not challenged by the appellant at the appropriate time by way of an appeal or revision petition/writ petition and, therefore, he was precluded to challenge the same in the appeal filed under Section 96 CPC before the first appellate Court and if the first appellate Court has failed to consider and give specific finding either way in respect of these orders it cannot be said that any illegality or perversity has been committed by it requiring interference by this Court. It was further submitted that otherwise also the judgment of the first appellate Court shows that those objections were also considered and rejected. It was also submitted that the order dated 28.8.2001 by which the respondent was substituted as plaintiff in place of the original landlord cannot be assailed on the ground that only a photostat copy of the decree dated 7.1.1999 was produced and the decree being unregistered, the same could not have been considered as there is no legal requirement that each and every decree of partition based on compromise arrived between the parties must be registered. According to learned counsel as the respondent and his brother were already having their respective share in their joint property and no new right was created by the consent decree of partition dated 7.1.1999, it did not require compulsory registration. It was further submitted that by amendment in the original plaint only a new ground of eviction on the basis of bonafide and reasonable necessity of the respondent was added and such addition of a new ground of eviction did not adversely affect the cause of action already taken by the original landlord. It was also submitted that no undertaking was given by the respondent to the effect that he will not seek amendment in the original plaint adding a new ground of eviction and, therefore, no illegality and perversity was committed by the trial Court in allowing the application of amendment filed by the respondent. According to learned counsel for the respondent by the undertaking given by the respondent it cannot be said that he waived his right of seeking amendment in the plaint adding a new ground of eviction and he was estopped in law to do so. It was also submitted that in each and every case the amendment effected in the plaint does not relate back to the original date of the suit and in the present case it cannot be said that the new ground of eviction on the basis of bonafide and reasonable necessity related back to the original date of suit i.e. 2.7.1998 and calculated from the date of commencement of the tenancy the suit being filed before the expiry of prescribed period of five years the same was barred under Section 14 (3) of the Act. It is not of legal requirement that in each and every case specific and separate issue in respect of decree for partial eviction is framed by the trial Court and the point can be considered and decided by the Court in absence of issue also if necessary material and evidence is available on record.
In support of his submissions, learned counsel for the respondent relied upon the cases of Pankaja & anr. Vs. Yellappa (Dead) by Lrs. & ors. reported in (2004) 6 SCC 415, B.Banerjee Vs. Smt.Anita Pan reported inAIR 1975 (SC) 1146, Chandgi Ram Vs. Babulal reported in 1997 DNJ (Raj.)308, Kahtoon Begum (Deceased) through her Lrs & 2 anr. Vs. Bhagwan Das & ors. reported in 2004(1) WLC 761, Ranchod B. Das Vs. Lrs. of Kanhaiyalal reported in 2005(2) WLC (Raj.) 10, M/s Vadhumal Kanhaiyalal & ors. Vs. Hemchand & ors. reported in 2007 WLC (Raj.) UC 270, South Konkan Distrilleries & anr. Vs. Prabhakar Gajanan Naik & ors. reported in (2008) 14 SCC 632, Siddalingamma & anr. Vs. Mamtha Shenoy reported in (2001) 8 SCC 561, Guman Mal S/o Sanwal Chand & ors. Vs. Babu Lal S/o Sh.Tolaji reported in 2009(3) WLC (Raj) 113, Virendra Kumar Jain Vs. Jaishivlal Bhaskar reported in 2001 WLC (Raj.) UC 285, Commissioner Hindu Religious & Charitable Endowment Vs. P.Shanmugama & Ors. reported in 2005 (1) WLC (SC) Civil, 383 and Dinesh Kumar Vs. Yusuf Ali reported in AIR 2010 (SC) 2679.
5. 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.
6. My findings with reasons on each and every ground raised on behalf of the appellant are as below:-
(i) Although, specific grounds were taken by the appellant in the memo of appeal filed before the first appellate Court challenging the order dated 28.8.2001 by which the application under Order 22 Rule 10 CPC filed by the respondents was allowed and also the order dated 23.10.2002 by which the amendment in the original plaint was allowed but even then no specific and clear findings either way has been given by the Court below but only by that reason it cannot be said that such illegality and perversity has been committed by the first appellate Court requiring interference of this Court in this second appeal. As already stated, during the pendency of the suit on 13.3.2001 an application under Order 22 Rule 10 CPC was filed by the respondent and the same was allowed vide order dated 28.8.2001 and the respondent was ordered to be substituted as plaintiff in place of the original landlord. Rule 10 of Order 22 CPC provides that In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. In the present case, on the application of the respondent the trial Court granted leave to him and he was substituted as plaintiff. Clause (l) of Section 1 of Order 43 CPC provides that an appeal under the provisions of Section 104 shall lie against an order under Rule 10 of Order 22 CPC giving or refusing to give leave. Thus, it is clear that the order dated 28.8.2001 was appealable under Section 104 read with Clause (l) of Section 1 of Order 43 but admittedly no such appeal was filed by the appellant challenging the order dated 28.8.2001 . Section 105 provides that no appeal shall lie from any other order made by a Court in the exercise of its original or appellate jurisdiction but where a decree is appeald from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. If Sections 104 and 105 CPC are read together, it is clear that only those orders can be challenged in a regular appeal against which appeal under order 104 CPC is not maintainable but if appeal is maintainable against an order under Section 104 read with Order 43 the same cannot be challenged in the regular appeal. In my opinion as appeal was maintainable against the order dated 28.8.2001 and the same was not challenged by filing appeal, the appellant was not entitled to challenge the same in the appeal filed against the decree under Section 96 CPC. So far as order dated 23.10.2002 is concerned, although the same was liable to be challenged in appeal filed under Section 96 CPC but as will be seen in the later part of this order, the order was passed in accordance with law requiring interference even by the first appellate Court. Therefore, it cannot be said that substantial questions of law are required to be framed on that basis and the appeal is liable to be admitted for further hearing.
(ii) It cannot be said the the order dated 28.8.2001 is illegal and perverse on the grounds taken by the appellant. Although, the order is based on the photostat copy of the decree and the decree is also not registered but it cannot be said that the decree required compulsory registration and in absence of the same the order dated 28.8.2001 could not have been passed. Even in the case of Bhoop Singh Vs. Ram Singh Major & ors. (supra) cited on behalf of the appellant, it has been held by Hon'ble Supreme Court that A decree or order passed by a Court requires compulsory registration only when if the compromise decree creates for the first time right, title or interest in immovable property of the value of Rs.100/- or upwards in favour of any party to the suit. In the present case it cannot be said that the decree dated 7.1.99 created right, title or interest in the suit shop for the first time in favour of the respondent as it is clear that respondent and his brother were already having shares in the suit shop and other immovable property and by way of compromise decree the suit shop fell in the sole share and ownership of the respondent. Only by the reason that out of several properties belonging to the brothers, one of the properties in the form of suit shop came into the sole ownership of the respondent, it cannot be said that right, title or interest in the same was created for the first time by way of compromise arrived at between the respondent and his brother requiring compulsory registration. So far as the objection regarding production of photostat copy of the decree is concerned, it would have been better for the respondent to produce certified copy of the same but as no objection in respect thereof was taken by the appellant at the appropriate time and the trial Court passed order of substitution on the basis of photostat copy the same cannot be challenged now. It is well settled that the objection regarding mode of proof of a fact cannot be subsequently raised if it was not raised at the proper time. If such objection would have been taken by the appellant at proper time, it was open for the respondent to produce the certified copy of the decree. Accordingly the ground raised by the appellant being not legally tenable is rejected.
(iii) In the facts and circumstances of the case the order dated 23.10.2002 by which application for amendment in the original plaint was allowed by the trial Court cannot be said to be illegal and perverse only by the reason that it is against the undertaking given by the respondent in the course of hearing of the application for substitution. The order dated 28.8.2001 passed by the trial Court reveals that it was prayed by the respondent that he would not seek such amendment in the plaint adversely affecting the cause of action taken in the plaint. In my view the meaning of the undertaking so given by the respondent is that no amendment will be sought by him in the plaint adversely affecting the cause of action but that does not mean that the respondent was precluded to take a new ground of eviction. It is well settled legal position that a new ground of eviction can be taken by the landlord at any stage of the proceedings and such amendment does not adversely affect the cause of action already taken by the landlord in the suit. It is possible in a case that cause of action in respect of a new ground of eviction arises subsequently after the institution of the suit during the pendency of the suit and if it is so the amendment in the plaint on the basis of such new ground of eviction cannot be refused only on the ground that at some earlier point of time an undertaking was given by the landlord that he would not seek amendment in the plaint. It cannot also be said that by his conduct of giving undertaking the respondent waived his right of seeking amendment in the plaint and he was estopped to seek amendment incorporating a new ground of eviction on the basis of reasonable and bonafide necessity or any other ground.
Hon'ble Supreme Court in the case of P.Dasa Muni Reddy Vs. P. Appa Rao (supra) relied upon by the learned counsel for the appellant has held that :
Abandonment of right is much more than mere waiver, acquiescene or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take incosistent position to gain advantage through the aid of courts. Waiver some times partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the (1) 29 I. A. 196.36 other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which partieswould not have made the contract may be sufficient to justify the court in saying that there was no consent."
In the same case it was also held that "the foundation of the doctrine of estoppel is that the representation must be of existing facts and not of mere intention. There must be a statement of fact and not a mere promise to do some thing in future."
In the case of Lachoo Mal Vs. Radhey Shyam (supra) Hon'ble Supreme has held that "The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy."
Similarly, in the case of Provash Chandra Dalui & anr. Vs. Niswanath Banerjee & anr. (supra) Hon'ble Supreme Court has held that:
"The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial. The necessary condition is that detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question"
If considered in the light of the well settled legal position in respect of element of waiver in the facts and circumstances of the case, it cannot be said that only by the undertaking already referred the respondent waived his right to seek amendment in the plaint even on the basis of a new ground of eviction and that he was estopped to do so. It is clear that the right can be waived by a party only in favour of some other party whereas in the present case at the most it can be said that only a prayer was made by the respondent to the trial Court that he would not seek such amendment in the plaint adversely affecting the cause of action. In my opinion such undertaking does not tantamount to waiver. Therefore, it cannot be said that illegality or perversity was committed by the trial Court by allowing amendment in the plaint adding a new ground of eviction.
(iv) This point raised on behalf of the appellant has already been dealt with while dealing the point number one taken by the appellant and, therefore, it is not necessary to deal with the same again.
(v) Although, it is true that the order of amendment in the plaint was passed on 23.10.2002 on the basis of an application dated 9.4.2001 the date on which the respondent was not a party in the suit as he was allowed to be substituted as a party vide order dated 28.8.2001 but only by that reason the order of amendment cannot be held to be illegal or perverse as the amendment was allowed subsequently to the date on which the respondent was substituted as plaintiff in the suit in place of the original landlord. It was not required for the respondent to file further application for amendment after he was substituted as plaintiffs and the trial Court was competent to allow amendment even on the application already filed. The order dated 23.10.2002 does not show that any such objection was taken by the appellant. Therefore, this ground is also not legally tenable.
(vi) It is not the law that in each and every case irrespective of the nature of amendment if an amendment is effected in the plaint, it relates back to the original date of the institution of the suit and the facts added by way of amendment in the plaint were there from the very inception and, therefore, in the present case it cannot be held that the new ground of eviction taken on the basis of bonafide and reasonable necessity of the respondent should be deemed to be present in the original suit filed on 2.7.1998 and as the same was filed before the expiry of period of 5 years from the date of commencement of the tenancy i.e.1.6.95, the suit for eviction on that ground was barred under Section 14(3) of the Act and was liable to be dismissed as not maintainable.
In the case of Siddalingamma & anr. Vs. Mamtha Shenoy (supra) only a general observation was made by the Hon'ble Supreme Court that "On the doctrine of relation back, which generally governs amendment of pleadings unless for reasons the Court excludes the applicability of the doctrine in a given case, the petition for eviction as amended would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the light of the averments made in the amended petition."
In the case of Chandgi Ram Vs. Babulal (supra), a specific question arose for consideration of the Court to the effect that whether amendment made in the plaint taking ground of eviction on the basis of bonafide and reasonable requirement of the landlord related back to the original date on which the suit for eviction on the ground of default in payment of rent, alteration and nuisance was filed and whether as a consequence of the same, the suit is barred under Section 14 (3) of the Act. The learned Single Bench of this Court relying on the principle of law laid down by Hon'ble Supreme Court in the case of B.Banerjee Vs. Smt.Anita Pan reported in AIR 1975 (SC) 1146 held that the original date of institution of the suit has to be ignored and the ground of eviction on the basis of bonafide and reasonable necessity of the landlord would be deemed to be taken from the date on which the amended plaint was filed and, therefore, the suit for eviction on the basis of new ground cannot be said to be barred under Section 14 (3) of the Act.
In the case of Ranchod B. Das Vs. Lrs. of Kanhaiyalal (supra) the learned Single Bench of this Court after considering the law laid down by Hon'ble Supreme Court in various decisions held that "Doctrine of relation back of the amendment of the plaint is held to be a proposition which generally governs the subject and not a rule of law or procedure governing all cases."
In the case of M/s Vadhumal Kanhaiyalal and ors. Vs. Hemchand and ors. (supra) learned Single Bench of this Court held that "Section 14 (3) of the Act bars institution of suit within 5 years since date of tenancy but decree passed after 5 years is not nullity." According to learned Judge even if a suit is instituted within the period of 5 years it may be held to be irregularly instituted suit but if decree of eviction is passed in such a suit after five years, the said irregularity gets cured over the period, by lapse of time and purpose of protection given to the tenant under Section 14 (3) of the Act is achieved and such decree passed after five years cannot be said to be hit by Section 14 (3) of the Act and cannot be declared to be a nullity for this reason. In the present case, the tenancy commenced w.e.f. 1.6.1995 and the decree for eviction on the basis of bonafide and reasonable necessity was passed by the trial Court on 18.8.2006 i.e. long after the expiry of the period of five years as prescribed under Section 14 (3) of the Act from the date of commencement of the tenancy and, therefore, the same cannot be held to be nullity.
(vii) Although, reply to the application under Order 22 Rule 10 CPC was filed by the appellant on 21.6.2001 before the trial Court and the reply was also available on the file of the Court and at one place in the order dated 28.8.2001 it has been mentioned that no reply to the application was filed by the appellant but only by that reason it cannot be said that the application for substitution filed by the respondent was allowed by the trial Court without considering the reply and objection taken by the appellant and as a consequence thereof the order is illegal and perverse as it is clear from the order that each and every objection taken by the appellant in the reply was considered. It appears that a typographical error has been made in the order dated 28.8.2001 that the appellant did not file reply to the application.
(viii) The judgments passed by the Courts below cannot be held to be illegal and perverse by this reason also that no specific and separate issue in respect of partial eviction from the suit shop was framed by the trial Court despite the fact that an application under Order 14 Rule 5 CPC was filed by the respondent and the same remained undecided. There is no legal requirement that in each and every case specific issue regarding particial eviction from the tenanted premises is required to be framed. What is required is that the question of partial eviction is considered and decided by the Court. In the present case the trial Court under issue No.4 also considered the question of partial eviction and held that if decree for partial eviction is passed the requirement shown by the respondent cannot be said to be satisfied. The first appellate Court while considering the issue Nos.4 and 5 upheld and affirmed the findings arrived at by the trial Court. Perusal of the judgment of the first appellate Court does not reveal that specific ground was taken by the appellant that question of partial eviction has not been considered and decided by the trial Court. Otherwise also, from the material available on record this question can be considered and decided for the first time by Court in the second appeal also. According to appellant himself presently he is conducting the business of cycles in the suit shop whereas the respondent has shown his requirement to do the business of grosseries and general merchandise in it. The measurement of the shop is 9 feet x 6 feet and, therefore, it cannot be said that a decree for partial eviction can satisfy the requirement of both the parties. It is pertinent to note that in para 6-C of the amended plaint it was specifically pleaded by the respondent that the entire suit shop is required for his business and partition thereof is not possible and the requirement shown by him cannot be satisfied if half of the suit shop is handed over to him. In the reply filed by the appellant no specific denial was made and, therefore, it will be deemed that the appellant himself also admits that partial eviction from the suit shop is not possible.
(ix) As discussed, none of the grounds raised on behalf of the appellant makes the judgments passed by the Courts below illegal and perverse requiring interference by this Court. No substantial questions of law can be said to have arisen in this second appeal requiring further consideration.
The net result of all this discussion is that no illegaglity or perversity has been committed by the Courts below in decreeing the suit filed by the landlord-respondent requiring interference by this Court. I also found that no substantial question of law is involved in this second appeal.
Consequently, the appeal being meritless is, hereby, dismissed at the stage of admission itself with costs throughout. The stay application also stands dismissed.
(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