Ramdei Devi v. Kumar Krishna Swarendra Shahi — 1993 DIGILAW 205 (PAT)

JUDGMENT : S. N. Jha, J. - This revision by the defendants is directed against an order by which their prayer for admission of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (in short, 'the Code') has been rejected. 2. The facts giving rise to this application, shortly stated, are these. The plaintiff-opposite party instituted Title suit No. 90 of 1973 for eviction of the defendants from the suit premises on the ground of default and personal necessity. The defence of the defendants as to ejectment was struck out in terms of the provisions contained in Section 11A of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 (in short, 'the Act') corresponding to section 15 of the present 1982 Act. The suit, however, was dismissed with cost on 26.8.78 Dismissal of the suit was upheld by the first appellate court on 24.1.80. The judgment and decree of the lower appellate court was set aside by this court in Second Appeal No. 295 of 1980 on 7.2.87. The appeal was remanded for fresh decision on merit after giving opportunity to the plaintiff to amend his plaint by deleting the relief in regard to arrears of rent. The plaint, accordingly, was amended on 3.5.88. The appellate court while allowing the amendment gave permission to the defendants to file additional written statement which was done on 4.1.89. Later the impugned petition under Order 41 Rule 27 read with Section 151 of the Code was filed on 16.6.92. 3. In the meantime, it appears, the defendants took steps to execute the decree of cost passed by the trial court and got the premises in question auction sold on 3.7.84 for Rs.3000/-. The auction purchaser, one Kundal Sah, is said to have taken possession of the premises through court on 2.1.85 and later sold it to one Narayan Prasad under registered sale deed dated 8.7.gg, According to the defendants, by reason of the aforesaid sales, the plaintiff ceased to be owner and, thus, landlord of the premises vis-a-vis the defendants. The petition under Order 41 Rule 27 was filed to bring on record documents showing the aforesaid sales. It may be stated here that the auction sale dated 3.7.84 and the sale deed dated 8.7.88 have been challenged by the plaintiff in a miscellaneous case and suit being Title suit No. 208 of 1991. 4. The petition under Order 41 Rule 27 was filed to bring on record documents showing the aforesaid sales. It may be stated here that the auction sale dated 3.7.84 and the sale deed dated 8.7.88 have been challenged by the plaintiff in a miscellaneous case and suit being Title suit No. 208 of 1991. 4. Learned counsel for the petitioners submitted that the defendants having been permitted to file additional written statement, they had a right to adduce additional evidence. It was pointed out that the order striking out defence passed by the trial court precludes the defendants from taking defence qua tenant, and, notwithstanding that order, they are entitled to show that by reason of subsequent events the plaintiff is no more entitled to decree of eviction. Reliance was placed on Sachidanand singh v. Smt. Tarawati Mishrain : AIR 1992 Patna 164 : 1992 (2) PLJR 196 Counsel submitted that in any view, the court is entitled to take into account the subsequent events and mould the reliefs and if by reason of any subsequent event, the plaintiff's claim is rendered in fructuous or not maintainable, the court must consider the same. Counsel placed heavy reliance on a decision of the Supreme Court in the case of M. M. Quasim v. Manohar Lal Sharma : AIR 1981 Supreme Court 1113. 5. Learned counsel for the opposite party did not dispute the factual aspects of the case. He, however, submitted that the auction sale dated. 3.7.84 as also the sale deed dated 8.7.88 have been challenged in the miscellaneous case and title suit and, therefore, cannot be said to be final. According to the counsel, since the sale took place during the pendency of the appeal, the same was hit by the principle of lis pen delis. It was pointed out on the strength of the authority in Kedarnath Lal (dead) v. Sheonarain and others: AIR 1970 Supreme Court 1717 that the principle of Lis pendent applies to auction sale as well. Counsel also submitted that since the defendants had suppressed necessary facts relating to the auction sale from this Court when the second appeal was pending, they should not be allowed to adduce additional evidence in that regard at this stage. Reference was also made to Clause (aa) of Order 41 Rule 27. Counsel also submitted that since the defendants had suppressed necessary facts relating to the auction sale from this Court when the second appeal was pending, they should not be allowed to adduce additional evidence in that regard at this stage. Reference was also made to Clause (aa) of Order 41 Rule 27. Counsel contended that the defence of the defendants having been struck out at the (Sic) stage of suit, they cannot be permitted to take any defence and in any view, their additional written statement or any additional evidence cannot travel beyond the scope of the amendment (of the plaint). In other words, according to the learned counsel, the defendants cannot be permitted to make out a new case by filing additional written Statement and, thus they can not be permitted to lead additional evidence. It was also said that additional evidence is permissible only if subsequent events arc pleaded in the written statement and accepted by the court. Counsel referred to the case of M/s Mohan Lal Subhas Chandra v. badri Lal Agrawalla : 1993 BBCJ 208 . 6. In my view, the instant case is fully covered by the decision of the Supreme Court in M. M. Quasim (supra). The suit for eviction in that case was filed on the ground of personal requirement for opening an office and clinic by one Manohar Lal Sharma one of the plaintiffs of the suit. The property was later allotted to the share of one Pyare Lal in a partition suit. During the pendency of the appeal before the first appellate court an application was filed under Order 41 Rule 27 to accept the certified copy of the partition decree as an additional evidence showing that the property having been allotted to the share of another co-sharer, the plaintiff could not maintain the suit for eviction for personal occupation of Manohar Lal Sharma as landlord. The prayer was rejected by the first and the second appellate court. The matter ultimately went to the Supreme Court. The prayer was rejected by the first and the second appellate court. The matter ultimately went to the Supreme Court. It was held in paragraph 17 of the judgment :- "Once this subsequent event of landlord's interest in the property getting extinguished as the property in question is allotted as an exclusive owner to a sharer upon - a partition amongst co-sharers, is properly evaluated, unless some proper explanation is offered by the landlords who are parties to the proceedings, the plaintiffs are liable to be non-suited." The Court accordingly, directed the first appellate court to allow the application under Order 41 Rule 27 taking the certified copy of the partition decree on record and give an opportunity to the parties to lead any additional evidence pursuant to the particular additional evidence to decide the questions. 7. It is true that in the instant case, the defence of the defendants had been struck out but as learned counsel for the petitioners rightly pointed out, the same must be confined to the defence qua-tenant and not de hors tenant. In a suit for eviction, the tenant may take one or more pleas. The plea may be in relation to his defence as to eviction or otherwise. For example, he may say that the plaintiff has no title or the suit is otherwise not maintainable. An order striking out defence does not mean that he is precluded from taking a new defence which may be available to him in course of time, more so when such a defence is de hors his status as tenant. In the instant case the defendants merely wanted to bring on record certain facts by reason of which, according to them, the plaintiff had ceased to be owner and landlord of the premises vis-a-vis the defendants. These facts, according to the defendants, arc sufficient to non-suit the plaintiff. I fail to understand how such an evidence can be shut out at the threshold stage itself. It is open to a court to take into account subsequent events and mould the reliefs as may be necessary. Mere reception of evidence does not per sc mean acceptance of the case of the defendants in that regard. I fail to understand how such an evidence can be shut out at the threshold stage itself. It is open to a court to take into account subsequent events and mould the reliefs as may be necessary. Mere reception of evidence does not per sc mean acceptance of the case of the defendants in that regard. After the documents arc admitted in evidence, it will be open to the plaintiff to argue lis pendens before the appellate court and explain the circumstance in which the court sale and the private sale took place on 3.7.84 and 8.7.88 which have already been challenged by him. As the Supreme Court has observed in M. M. Quasim's case (supra) the matter has to be 'properly evaluated. In my view, such an evaluation is possible only if the documents arc brought on record and opportunity is given to the other side to adduce counter evidence and explain the mailer. If the very reception of the documents/evidence is denied, the question of evaluation and appreciation would never arise. 8. The contention of the learned counsel for the opposite party that additional written statement cannot travel beyond the scope of the amendment of the plaint is correct in its own place. However, the contention has no relevance on the facts of the case. It is true that the additional written statement was filed by the defendants pursuant to an order after the plaint was amended in terms of the direction of this Court. It is also true that the scope of the amendment of the plaint was limited. However, the additional written statement in so far as it relates to subsequent events stands, on its own footing. The subsequent events cannot be said to be out of place. If that be so, additional evidence is a logical corollary. It may be mentioned that in the case of M. M. Quasim (supra) the Supreme Court directed taking of additional evidence even without formal amendment of the pleadings. In any view, the parties will have ample opportunity to argue out the matter in the court below. 9. If that be so, additional evidence is a logical corollary. It may be mentioned that in the case of M. M. Quasim (supra) the Supreme Court directed taking of additional evidence even without formal amendment of the pleadings. In any view, the parties will have ample opportunity to argue out the matter in the court below. 9. The court below has rejected the prayer ob-serving : "..The subsequent developments of which the learned counsel for the respondents has tried to impress, do not seem to have been brought about by the plaintiff either by his consent or by his volition and neither have the said subsequent developments cropped up by the onset of any intervening law. I am not inclined to take any additional evidence of matters which are totally extraneous for consideration and which arc beyond the scope of the facts of the original suit." In my opinion, the ground assigned by the court is wholly misconceived and for the reasons stated above, the prayer could not be rejected. I, accordingly, hold that the court below has refused to exercise a jurisdiction vested in it by law by rejecting the evidence at the very threshold stage and the order is lit to be set aside in revision. 10. In the result, the application is allowed and the order dated 7.8.92 is set aside. The court below is directed to pass fresh order granting the application under Order 41 Rule 27 of the Code and give opportunity to the plaintiff to lead such evidence as he may adduce pursuant to the additional evidence of the defendants. Any observation made in this order will not be interpreted as opinion on the merit of the case one way or the other. There will be no order as to costs.