TIKA KHAWAS v. PASUPATI NATH — 1984 DIGILAW 4 (SIK)

R. DAYAL, J. ( 1 ) JUDGMENT:- This first appeal has been filed by the tenant-defendant Shri Tika Khawas against the judgment and decree dt. 30th Jan. 1984 by the learned District Judge, Sikkim, decreeing with cost, the suit brought by the landlord plaintiff, Shri Pasupati Nath for possession, after the eviction of the tenant from one shop measuring 5' X 5' situated at Lall Market Road, in Misrilal Sardar Building, within the Gangtok Municipal Corporation area. ( 2 ) THE appellant-defendant is a tenant under the plaintiff-respondent on a monthly rent of Rs. 100/ -. By means of a written agreement, the defendant was let out the suit premises with effect from 1st April, 1978 for three years up to 31st Mar. 1981 on monthly rental of Rs. 100/ -. After the efflux of the period of tenancy agreed on, the defendant did not vacate the premises and therefore, the plaintiff served a notice dt. 6th Feb. 1981 terminating the tenancy of the defendant, with the expiry of 31st Mar. 1981. Otherwise also, the tenancy stood terminated by efflux of the stipulated period on 31st Mar. 1981. The ground of the eviction is bona fide necessity and the plaintiff has pleaded that he requires the suit premises for his own use since he intends to extend his business of stationery and other articles such as magazines periodicals etc. , as the space in his possession, which is adjacent to the suit premises and which is also of the size of 5' X 5' is too small for keeping all the articles. ( 3 ) THE defendant who contested the suit, did not deny to have entered into an agreement of tenancy w. e. f. 1st April, 1978 for three years. However, he has stated at the same time that he has been the tenant since the year 1973. He did not specifically deny the service of notice to quit. He challenged the locus standi of the plaintiff to bring the suit for eviction. He denied that the plaintiff requires the premises for his own use for extending his business of stationery and other articles. According to him, the space with the plaintiff is sufficient for his business. ( 4 ) AFTER framing issues and recording evidence, the learned trial Court held that the tenancy of the defendant stood determined by efflux of the stipulated period on 31st Mar. According to him, the space with the plaintiff is sufficient for his business. ( 4 ) AFTER framing issues and recording evidence, the learned trial Court held that the tenancy of the defendant stood determined by efflux of the stipulated period on 31st Mar. 1981 and also by the service of the notice to quit. It was further held that the plaintiff had the locus standi to bring the suit and that the plaintiff requires the premises bona fide for his own use. As a result of these findings, the learned trial Court decreed the suit, as stated above. ( 5 ) AGGRIEVED, the defendant has come up in appeal. I have heard Shri A. Moulik, Advocate on behalf of the appellant and Shri N. B. Kharga, Advocate on behalf of the respondent. Only two points arise for decision. One is whether the plaintiff has the locus standi to bring the suit and the other, whether the plaintiff requires the premises for his bona fide occupation. ( 6 ) AS regards the first point regarding the locus standi, it is an admitted fact that the plaintiff is not the owner of the suit premises, the owner being one Shri Misrilal. The contention raised on behalf of the defendant is that landlord means the owner of the premises. This contention is based on Notification No. 6326-600/h and W. B. dt. 14th April, 1949 which provides for regulating the letting and subletting including the grounds on which a tenant may be evicted, and defines the term 'landlord' as owner of the premises. However, it is not disputed that the Gangtok Rent Control and Eviction Act, which was passed in the year 1956, covering the same field of law, applies to buildings within the area of Gangtok Bazar, where the disputed premises are situated and so excludes the applicability of the Notification of 1949. But it does not define the term 'landlord'. Therefore, the expression 'landlord' is to be construed in its ordinary sense. So, there is no warrant for the contention that 'landlord' means 'owner'. I, therefore, affirm the finding of the learned trial Court that the plaintiff has the locus standi to bring the suit. But it does not define the term 'landlord'. Therefore, the expression 'landlord' is to be construed in its ordinary sense. So, there is no warrant for the contention that 'landlord' means 'owner'. I, therefore, affirm the finding of the learned trial Court that the plaintiff has the locus standi to bring the suit. ( 7 ) REGARDING the point of bona fide necessity, it is not in dispute that the disputed premises are a half portion of a shop 10' X 5', the other half portion 5' X 5' being in occupation of the landlord. The plaintiff has pleaded that he needs the suit premises since he intends to extend his business, of stationery and other articles such as magazines, novels, periodicals etc. , as the space in his occupance is too small for keeping all the articles. In proof, he deposed as PW I to the same effect. In the cross-examination, he has admitted that he had initially given the premises to the defendant in the year 1975 for three years on a monthly rent of Rs. 95/- and thereafter, the rent was increased to Rs. 100/- per month. Further he admitted that in the year 1975 also, he had the same accommodation under his control where he was running his own shop "as it is now" and the same was the position in the year 1978 also. In the year 1978, he admittedly did not ask the tenant to vacate the premises, but renewed the tenancy by increasing the rent by Rs. 5a. There is nothing in his evidence to show why he began to need more accommodation since the year 1981, than what he needed in the year 1975 when he initially let out the suit premises and the year 1978 when he again entered into an agreement for three years. The tenant, Shri Tika Khawas has, on the other hand, deposed that the plaintiff does not require the premises for his own use. However, in the cross-examination he has stated that the plaintiff has two school going sons, and that previously, the plaintiff used to run a pan shop in the portion where he is now running the business of magazines etc. However, in the cross-examination he has stated that the plaintiff has two school going sons, and that previously, the plaintiff used to run a pan shop in the portion where he is now running the business of magazines etc. The other witness produced by the defendant Shri Kamal Chettri (DW 1) though did not state anything in his examination-in-chief about the bona fide necessity of the plaintiff, stated in the cross-examination that in the year 1973, the plaintiff had a pan shop. On the basis of this fact which has been elicited in the cross-examination of the defendant and the witness Shri Kamal Chettri, an attempt was made by the learned counsel for the plaintiff to make out a case that the change of the business of the plaintiff necessitated more accommodation with the plaintiff. However, this argument is based merely on a conjecture and not on any evidence. The plaintiff himself did not depose that he required more accommodation on account of the change of business. Further, there is nothing on record that the change occurred after the year 1975. The Gangtok Rent Control and Eviction Act, 1956 has imposed restrictions on the right of the landlord to evict a tenant and the onus of proving that any of the grounds on which eviction may be ordered, exists, lies squarely and heavily on the landlord. The landlord claiming eviction on the ground of bona fide necessity must prove by adducing evidence that he genuinely requires the premises. A bare assertion by the landlord that he requires the premises is not sufficient. The test to be applied is an objective one and not a subjective one. It is, therefore, implicit that the requirement must be reasonable. In the present case, the plaintiff has given evidence only to this extent that he has deposed that he requires the premises for his own occupation to extend his business, since the accommodation already in his possession is insufficient. The evidence does not bring out the circumstances and the facts which may show that the plaintiff requires the premises bona fide. However, the learned trial Court has held the requirement of the plaintiff to be bona fide on the basis of evidence that the plaintiff is a family man having two school-going sons, as admitted by the tenant in his cross-examination. However, the learned trial Court has held the requirement of the plaintiff to be bona fide on the basis of evidence that the plaintiff is a family man having two school-going sons, as admitted by the tenant in his cross-examination. The inference drawn by the learned trial Court that the plaintiff requires the premises for extension of his business is not justified, since the requirement for more space for extension of business need not depend upon one being a family man having more than one child. The plaintiff himself did not depose that this factor had any nexus with his requirement for the premises. Here is a case where the landlord did not know at the time of drafting his plaint and producing evidence as to what were the facts which could bring out that he needed the premises for extension of his business. It was during the cross-examination of the tenant and his witness that he brought on record that earlier he was having a pan shop and that he was having two sons. It is also worthwhile to note that in the notice to quit also, he did not make a mention about his alleged bona fide requirement. Had the requirement of the plaintiff been bona fide, it would have been natural that he knew the facts which could bring out that he really required the premises and stated them in the plaint and also gave evidence about those facts. On a careful consideration of the entire evidence and the circumstances, I reverse the finding of the learned trial Court that the plaintiff requires the premises bona fide for extension of his business and hold that he has no bona fide requirement. ( 8 ) AFTER the appeal had been heard in part, the plaintiff realised the weakness of his case and moved on 30-5-84, an application for amendment of the plaint alleging that previously he was running a pan shop and in 1980 he started the present bookshop and that though the change of business has come in evidence, yet the year in which the change took place has not come out clearly. By the amendment sought, the plaintiff has sought to add that the change of business took place in the year 1980. Thus the plaintiff, by means of this amendment, seeks to get an opportunity to adduce further evidence which he would otherwise not have. By the amendment sought, the plaintiff has sought to add that the change of business took place in the year 1980. Thus the plaintiff, by means of this amendment, seeks to get an opportunity to adduce further evidence which he would otherwise not have. O. 6 R. 17 of Civil P. C. provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice. But exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court. As a rule, all amendments are to be allowed which are necessary for determination of the real controversy in the suit. The addition which the plaintiff wants to make to his existing pleading is not necessary for determination of any controversy in the suit. The allegations made by the plaintiff in the plaint about the bona fide requirement are enough to give him a cause of action. There was no bar for the plaintiff to adduce evidence, in order to prove his bona fide requirement, that there was a change in the nature of business at a particular point of time and at that point of time or thereafter, genuine need arose for more accommodation. Therefore, the amendment sought is unnecessary. But what the plaintiff wants by the amendment is to get an opportunity to produce further evidence. It is not legitimate purpose of amendment to allow a party to produce evidence after the evidence has been closed. As pointed out in Ratti Lal v. Raghu, AIR 1954 Vinpra 53 O. 6 R. 2 lays down that every pleading shall contain, and contain, only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Material facts are those facts which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Evidence also consists of facts and in order to distinguish between the two kinds of facts, material facts on which the party pleading relies for his claim or defence are called facta probanta and the facts by means of which they are to be proved are called facta probantia. It was not necessary for the plaintiff to allege facts by which the bona fide requirement was to be proved, such facts being in the nature of evidence. Amendment sought being unnecessary, the application for amendment is liable to be rejected. ( 9 ) IN the result, the application for amendment of plaint is rejected, the appeal is allowed, judgment and decree of the learned trial Court is set aside and the suit is dismissed. The defendant-appellant shall get his costs in both the Courts. Counsel fee is assessed at Rs. 200/- in each Court. Appeal allowed. --- *** --- .