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1996 DIGILAW 1086 (RAJ)

Vira Saini v. Smt. Kamla Devi

1996-09-24

M.G.MUKHERJI

body1996
JUDGMENT 1. - This revisional application has been filed by the defendant-petitioner impugning an order dated 1.3.1996 passed by the additional Civil Judge (JD), Jaipur City, Jaipur in suit No. 301/1991, whereby the application, as filed by the defendant-petitioner for amendment of the written statement, stood rejected. 2. The plaintiff-non-petitioner filed a suit for ejectment against the defendant-petitioner on ground of reasonable bona fide necessity for herself. She specifically pleaded that she was suffering from heart disease and was unable to occupy any accommodation in the upper floor and that she had with her living an adopted son as also her husband's elder brother's daughter, who has been forsaken by her husband. Her husband retired from the Indian Air Force and subsequently passed away leaving her behind as his widow. She needed the suit premises for her bona fide and reasonable necessity to facilitate the carrying on of a business by her adopted son. Her specific averment was that she being in an old age and being in an aiding condition, would prefer to shift her residence in the ground floor accommodation. The defendant-petitioner contested the suit denying the case of reasonable and bona fide necessity and further averred that she would be suffering hardship if she would be asked to vacate the premises. As many as seven issues were framed by the trial Court and the evidence on behalf of the plaintiff was more or less complete on 30.10.1995 and a date was fixed for evidence of the defendant- petitioner. On that specific date the defendant-petitioner made an application under Order 6, Rule 17, Civil Procedure Code for amendment of her written statement contending, inter alia that she wanted to incorporate by way of her additional pleadings that the plaintiff negotiated to sell her property which was in occupation of another tenant Smt. Sudha Sharma and accepted from her an amount of Rs. 5,000/- on account of earnest money and for another premises belonging to her, she has received Rs. 11,000/- towards a part of the consideration money by agreeing to sell out the said house and hence her case for bona fide and reasonable necessity was not credible enough to be relied upon. 5,000/- on account of earnest money and for another premises belonging to her, she has received Rs. 11,000/- towards a part of the consideration money by agreeing to sell out the said house and hence her case for bona fide and reasonable necessity was not credible enough to be relied upon. She has a big house consisting of about ten rooms, situated at Mishra Rajaji Ka Rasta, Jaipur City, and some rooms in the said building are still lying vacant and that property, taken by itself, was more than sufficient to satisfy her present needs and she was further more getting about Rs. 5,000/- by way of rent per month by letting out a part of said building. 3. The learned Civil Judge was of the considered view that at the present belated stage there was no necessity of changing the pleadings by way of written statement and that she had quite a substantial opportunity to adduce evidence in this regard, if she wanted so, and that apart, so far as the evidence recording her entering into an agreement to sell out the house, the defendant had not been able to produce any iota of evidence in this regard and she could not also identify the other building that the plaintiff was in possession of. 4. The learned advocate for the defendant-petitioner fairly conceded before me that if his client is allowed the liberty to adduce evidence as to the contentions she sought to make out by way of amended pleadings in her written statement, she would have no further grievance in this regard, even though no formal amendment of the written statement be allowed in this case. The learned advocate for the defendant-petitioner contended that unless the written statement be amended with a specific averment in this regard, the defendant might not be allowed to adduce evidence as regards the possession of other alternative accommodation at the disposal of the a plaintiff, about the agreement that the plaintiff has entered into with other persons with regard to the sale of the house and that was the precise reason why the defendant wanted a change in the pleadings by way of incorporation of further averment, even though these were nothing but elucidation of her original pleading whereby she sought to deny the broad question of bona fide and reasonable necessity of the plaintiff. 5. 5. It is not necessary in the background of an application for change of the pleadings, be it of plaint or a written statement that the person seeking such amendment has to adduce evidence prior to the amendment being allowed in his original pleadings. It would, however, be necessary for the Court to see that the application is a bona fide one and does not attempt to proliferate the issues already framed by entering into questions which are prolix, irrelevant or absolutely unnecessary for the trial of the issues already framed or goes against the nature and character of the original pleadings. The defendant has taken a plea that she was not in the know of such facts which she has come to know for the present, and that was the precise reason for which she did not take the question of an agreement being entered into by the landlady with some other person regarding the sale of the houser or with regard to the existence of another house in occupation of the plaintiff landlady from which she derives additional income by way of rental, at any earlier stage. I do not think that a formal amendment in this context would change the nature and character of the original pleadings, even though it may be by way of elucidation of the original defence. Hence, the amendment sought for may be allowed, subject to the payment of Rs. 500/- as costs to the plaintiff which cost is to be paid to her within one month from this date. I direct, in the facts and circumstances of the present case, the trial Court to decide the suit immediately after incorporation of the amended pleadings in the written statement, and to expeditiously hear out the case so that the entire suit may be decided within six months from this date. 6. With these observations, the revisional applications stands allowed.Petition allowed. *******