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2004 DIGILAW 1526 (RAJ)

LRs of Udai Singh v. Kanchan Kumari

2004-10-18

PRAKASH TATIA

body2004
Judgment Prakash Tatia, J.-Heard learned Counsel for the appellant as well as learned Counsel for the respondent. 2. This appeal is against the Judgment and decree of the trial Court dated 31.01.2002 and the Judgment and decree of the first appellate Court dated 29.03.2004 by which appellants’ appeal against the Judgment and decree of the trial Court was dismissed by the appellate Court. The trial Court decreed the suit of the plaintiff-respondent for eviction against the appellant-defendant from the suit premises. The ground for eviction is the personal bona fide need of the suit premises for establishing photocopy shop for the plaintiff’s husband. The appellant-tenant being aggrieved against the Judgment and decree of the trial Court dated 31.01.2002 preferred the appeal. 3. Before the first appellate Court, in the first appeal, the defendant-tenant submitted two applications, one under Order 6 Rule 17, CPC and another under Order 41 Rule 27 CPC. In the applications, the appellant-defendant submitted that after the decree passed by the trial Court, the appellant-tenant came to know that plaintiff’s husband has his own plot, which is situated in Udaipur City itself at Hiranmangri in Sector 4. The plot’s number is 241. After obtaining decree from trial Court, the plaintiff’s husband obtained permission from UIT, Udaipur and raised construction of double storied building over the plot. In this building, the landlord’s husband constructed 8 shops, therefore, need of the plaintiff for shop, if was there then that need is no more surviving. The appellant-defendant sought amendment of the written statement to take defence on the basis of subsequent development. According to defendant-appellant, these facts further proves that plaintiff’s husband is an affluent person and his claim that plaintiff’s husband has no other means for his livelihood is false. The appellant-defendant submitted photostat copies of the construction permission granted by the UIT, Udaipur dated 18th July, 2002 and 21st Dec., 2002, the photostat copies of the receipts dated 26.02.2002 and 31st May, 2002. These documents are in the name of plaintiff’s husband. The appellant also placed on record the photostat copy of the site plan and copy of the sale deed issued by the UIT in favour of the husband of the respondent landlord dated 25th Nov., 1980 and placed on record six photographs of the site where the construction was going on. These documents are in the name of plaintiff’s husband. The appellant also placed on record the photostat copy of the site plan and copy of the sale deed issued by the UIT in favour of the husband of the respondent landlord dated 25th Nov., 1980 and placed on record six photographs of the site where the construction was going on. The appellant also placed on record the certified copies of the documents obtained from the case No. 249/2002 from the Court of Civil Judge (JD), Udaipur City South, which are certified copies of the application filed under Order 39 Rules 1 and 2, CPC alongwith affidavit and reply to that application filed by the husband of the plaintiff alongwith the affidavit. The appellant also submitted plaint of the civil original Suit No. 284/2002-Gaharilal vs. Pyarelal and written statement filed by the plaintiff’s husband. Eight more photographs were also submitted by the appellant. The Suit No. 284/2002 was in relation to plot No. 241 and filed by plaintiff’s husband’s neighbour for injunction against construction, which was being raised by the plaintiff’s husband. 4. The plaintiff -respondent submitted reply to the application and stated that the appellant’s husband though had plot No. 241, but he orally gave this plot to his two sons. The plot was sub-divided and new numbers were given, which are 241-A and 241-B. The construction was raised by appellant’s sons Vinod and Ashok. It is further submitted that both the sons of respondents are residing separate from the respondent and her husband and respondent has no dealing with her two sons. It is also submitted that in the plots No. 241-A and 241-B, there is no scope for establishing the shop for photostat copies. The reply was supported by the affidavit of plaintiff’s husband Pyarelal. 5. The first appellate Court, by order dated 24th Sept., 2003, dismissed the appellant’s applications under Order 6 Rule 17 and under Order 41 Rule 27, CPC. The first appellate Court observed that suits are normally decided with reference to the cause of action existing on the date of filing of the suit. Introduction of subsequent events is an exception to this rule. The first appellate Court further observed that since the construction permission and plan approved is for residence, it cannot be presumed that it can be used for commercial purposes by the respondent. Introduction of subsequent events is an exception to this rule. The first appellate Court further observed that since the construction permission and plan approved is for residence, it cannot be presumed that it can be used for commercial purposes by the respondent. The first appellate Court accepting the plea of the plaintiff-respondent that the plot in question has been divided in two portions for her two sons right from beginning and they will be used for her two sons as per family settlement. The first appellate Court further observed that landlord is best judge to judge the suitability of the accommodation. Apart from it, the first appellate Court held that after the amendment in the Civil Procedure Code, it is also necessary for the applicant to show that despite due diligence, the amendment could not have been sought earlier. In addition to above, the first appellate Court observed that facts pertaining to alternative accommodation belonging to plaintiff’s husband are not necessary for the decision of real controversy in the suit. 6. The order of rejection of these two applications dated 24th Sept., 2003 is heavily under attack from the appellant-tenant and according to learned Counsel for the appellant if the order dated 24th Sept., 2003 passed by the appellate court is set aside and appellant’s application under Order 6 Rule 17 and under Order 41 Rule 27, CPC are allowed, the Judgment of the trial Court cannot be allowed to stand because after amendment of the written statement and permission to produce additional evidence to the parties, retrial will be necessary. The following substantial questions of laws were framed in this appeal :- “(1) Whether the first appellate Court committed serious error of law and proceeded on wrong facts in rejecting the applications filed by the appellant under Order 6 Rule 17 & Order 41 Rule 27, CPC as the first appellate Court decided the applications on assumptions based upon the pleas taken by one contesting party only and failed to take note of the fact that the Court can take note of the subsequent events and ignored the State Rent Legislation, which says that no Court shall pass any decree or make any order in favour of the landlord even in execution of the decree or otherwise, unless grounds under Section 13(i) are proved by the landlord, which suggests that the Court is required to mould the relief according to the change circumstances? .(2) Whether the learned first appellate Judge has erred in questioning the want of due diligence of the appellant in placing subsequent facts on record without noticing that the facts of construction by the plaintiff’s husband themselves came into existence only after the decision of the trial Court? .(3) In case the order dated 24th Sept., 2003 is reversed and the applications filed by the appellant under Order 6 Rule 17, CPC and Order 41 Rule 27, CPC are decided in favour of the appellant, what is the effect of this over the Judgment s and decrees of the two Courts below? .(4) Whether the Courts below particularly the first appellate Court committed error of law in deciding the issue of personal bona fide need in favour of the plaintiff and committed illegality by upholding the finding of the trial Court?” 7. According to learned Counsel for the appellant, the order of the first appellate Court is contrary to law as well as absolutely perverse. The first appellate Court even went to the extent of holding that even alternative accommodation available to the person for whose need eviction of tenant has been sought is not a necessary fact and ignored the statutory provision of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which provides that no Court shall pass decree or even order in suit or even in execution for eviction of the tenant unless grounds enumerated in Clauses (a) to (K) in Section 13(1) are satisfied. It is also submitted that none of the provisions of the Rent Control Act envisage that even if the landlord has suitable alternative accommodation with him, still he can seek decree for eviction of the tenant on the ground of personal bona fide necessity. .8. According to learned Counsel for the appellant, the first appellate Court failed to appreciate the effect of the amendment made in the Civil Procedure Code. The Order 7 Rule 7 has not been deleted by the amendment of CPC. The permission to raise construction was granted by the trial Court and, therefore, the appellant could not have pleaded any fact before the decision by the trial Court. It is also submitted that the first appellate Court accepted the plea of the plaintiff as a gospel truth and held that the plot for which the plaintiff’s husband sought construction permission in the year 2002 after the decree of the trial Court is belonging to two sons of the plaintiff since beginning. The trial Court, in fact, decided all the issues raised in applications under Order 6 Rule 17 and Order 41 Rule 27, CPC while deciding those applications. The issues raised in the applications could have been decided only after permitting the appellant to raise the grounds either by amending the written statement or by .permitting appellant-defendant to take the grounds as subsequent event. All those issues could have been decided only after evidence of the parties. It is also submitted that in the light of admission of the plaintiff and her husband in reply to the application of the appellant, the fact of existence of plaintiff’s husband’s huge property with construction after decree of the trial Court, heavy burden was upon the plaintiff to prove the fact, which he submitted and which are running contrary to their own documents. 9. Learned Counsel for the respondent vehemently submitted that the suits are required to be decided with reference to the cause of action, which was available to the plaintiff on the date of filing of the suit. Learned Counsel for the respondent relied upon the Judgment of the Hon’ble Supreme Court delivered in the case Shakuntala Bai & Ors. 9. Learned Counsel for the respondent vehemently submitted that the suits are required to be decided with reference to the cause of action, which was available to the plaintiff on the date of filing of the suit. Learned Counsel for the respondent relied upon the Judgment of the Hon’ble Supreme Court delivered in the case Shakuntala Bai & Ors. vs. Narayan Das & Ors., reported in 2004 (5) SCC 772 wherein Hon’ble Supreme Court observed that even death of original landlord during the pendency of the appeal against eviction decree obtained on the ground of personal bona fide necessity cannot effect the decree. While considering this aspect of the matter, the Hon’ble Supreme Court held that bona fide need of the landlord has to be examined as on the date of institution of the proceedings. 10. Learned Counsel for the respondent further relied upon the Judgment of this Court delivered in the case of Dharam Chand vs. Karam Chand (now dead) through LRs. reported in 2002 (1) RLW 657 (Raj), and the Judgment of the Hon’ble Supreme Court delivered in the case of Gaya Prasad vs. Pradeep Srivastava reported in 2001 (2) SCC 604 . 11. It is also submitted by learned Counsel for the respondent that scope for interference by the High Court in a matter of concurrent findings is limited. Learned Counsel for the respondent relied upon the Judgment of this Court delivered in the case of Shakuntala Devi vs. Leeladhar Agrawal reported in 2002 (4) RLW 2177 (Raj) and Judgment of this Hon’ble Supreme Court delivered in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, reported in 2000 (1) RLW 89 (SC). It is also submitted that the bona fide need of the landlord is a question of fact and the landlord is the best judge. .12. It will be relevant to mention here that in view of the serious dispute about the nature of the construction raised over the plot No. 241, this Court with the consent of both the parties, appointed Commissioner to inspect the site and to submit the report. The learned Commissioner submitted her report alongwith 47 photographs. The Commissioner also drawn sketch map of the property. No written objection has been filed by any of the parties on Commissioner’s report. .13. I considered the submissions of learned Counsel for the parties and perused the record. 14. The learned Commissioner submitted her report alongwith 47 photographs. The Commissioner also drawn sketch map of the property. No written objection has been filed by any of the parties on Commissioner’s report. .13. I considered the submissions of learned Counsel for the parties and perused the record. 14. Undisputedly, suit was filed by the plaintiff alleging that she needs the shop in dispute so that her husband may establish a photostat copy shop as plaintiff’s husband’s services were terminated from the post of Head Master by the State from 16th August, 1991. In view of the above fact, the only requirement of the plaintiff is the need to establish her husband’s phtostat machine shop. The defendant-appellant submitted copy of the reply filed by the husband of the plaintiff in a suit, which was filed by one Gaharilal, neighour of the plot No. 241. Said Gaharilal alleged that plaintiff’s husband in raising illegal construction over plot No. 241. The reply to the injunction application was filed by plaintiff’s husband Pyarelal in the Court on 2nd Nov., 2002 (after the decree passed by the trial Court in this case dated 31.01.2002). In his reply, the plaintiff’s husband unequivocally admitted that plot No. 59 as well as plot No. 241 are in his ownership and are in his possession. He further admitted that he is raising construction over these plots, which are in accordance with law and rules. The written statement was filed by the plaintiff’s husband in Gaharilal’s case on 29.01.2003 admitting the same facts. the plaintiff’s husband deposited the lease money for the plot No. 241 on 26.02.2002 and fees for sub-division on 31st May, 2002. He obtained the construction permission for the two plots on 18th July, 2002 and 31st Dec., 2002 in his name. The photographs are already on record evidencing the huge construction. The above events occurred and documents came into existence after the decision of the trial Court. The first appellate Court mechanically mentioned that after the amendment of the Civil Procedure Code, amendment can be permitted only upon showing due diligence by the applicant by showing that amendment could not have been sought earlier. The above events occurred and documents came into existence after the decision of the trial Court. The first appellate Court mechanically mentioned that after the amendment of the Civil Procedure Code, amendment can be permitted only upon showing due diligence by the applicant by showing that amendment could not have been sought earlier. How it was relevant in the facts of this case where the amendment has been sought in the written statement on the basis of events, which occurred after the decision of the suit by the trial Court and amendment has been sought though when first appeal was pending, but it was without any delay. Plea of the defendant prima facie finds support from the admission of the person concerned in writing and made in Court proceedings and fact is supported by the other documents of the person concerned himself ? Mere reading of statute cannot help in deciding the matter. One must know whether the law applies to the facts of the case or not? How the facts, which came into existence after the decision of the trial Court could have been pleaded before the trial Court by the defendant has not been even appreciated by the first appellate Court. The first appellate Court further observed that allotment of the plot is of the year 1980. That fact was absolutely irrelevant because mere possessing a open plot cannot satisfy the need of person who wants to run a business of photocopy. That irrelevant fact was taken into consideration by the first appellate Court. The construction of the shop after the decision of the trial Court was the relevant fact, which should have been taken note by the first appellate court, that has not been taken note by the first appellate Court. On this count alone, the order of the first appellate Court dated 24th Sept., 2002 deserves to be set aside. 15. It is true that the time taken in the judicial proceedings cannot effect the rights of the plaintiff/parties. It is also true that in cases where unfortunate events and which are beyond the control of the parties and happens during long time taken in judicial proceedings, may not be accepted as a ground to deny the relief to that party who was entitled for the relief when the suit was filed. It is also true that in cases where unfortunate events and which are beyond the control of the parties and happens during long time taken in judicial proceedings, may not be accepted as a ground to deny the relief to that party who was entitled for the relief when the suit was filed. In the case of Shakuntala Bai (Supra), the Hon’ble Apex Court held that bona fide need of the landlord has to be examined as on the date of institution of the proceedings. In that case, after the death of original landlord during the pendency of the appeal, the plaint was amended to the effect that the business shall be carried on by widow of the deceased landlord, assisted by one of the family member, who is aged about 16 years and already trained in the trade. The case was remanded by the lower appellate Court to the trial Court for fresh consideration and during the pendency of the suit, after remand, the plaint was again amended and facts were added in pleading saying that the business in the premises in dispute shall be started by three sons of the deceased landlord, who had attained the majority during the pendency of the appeal. Thus, at the time of final hearing of the suit by trial Court, all the plaintiff’s son were major and they had specifically set up their own bona fide need. In that situation, the Hon’ble Apex court held that by reason of death of original landlord, bona fide need would not come to an end and, therefore, eviction suit would not be liable to be dismissed. The Hon’ble Supreme Court further held that “principle that “the need of landlord must exist till the decree for eviction is passed by the last Court and attains the finality”, can even otherwise have no application here in view of the express language used in section” 16. As is clear, from the passage quoted from the Judgment of the Hon’ble Supreme Court in the case of Shakuntala Bai, 2004 (5) SCC 772 (Supra), that the Hon’ble Apex Court held that in view of the express language used in the section applicable in the State of Madhya Pradesh, the principle that the need of landlord must exist till the decree for eviction is passed by the last Court and attains finality had no application. The Hon’ble Supreme Court further observed that if the subsequent event like the death of the landlord is to be taken note of at every stage till the decree attains finality, there will be no end to litigation. By the time a second appeal gets decided by the High Court, generally a long period elapses and on such a principles if during this period the landlord who instituted the proceedings dies, the suit will have to be dismissed without going into merits. The same thing may happen in a fresh suit filed by the heirs and it may become an unending process. After holding so, the Hon’ble Apex Court further observed that taking into consideration the subsequent events may, at times, lead to rendering the whole proceedings taken infructuous and colossal waste of public time and, thereafter, held that “there is no warrant for interpreting a rent control legislation in such a manner, the basic object of which is to save harassment of tenants from unscruplous landlords. The object is not to deprive the owners of their properties for all times to come”. 17. The position, because of the statutory provision in force in State of Rajasthan is different as the Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has put a statutory restriction upon the Court against passing a decree or even for making an order in favour of landlord not only in suit, but even in execution of decree against evicting the tenant unless the Court is satisfied that any of the grounds enumerated in Clauses (a) to (k) of Sub-section (1) of Section 13 of the Act of 1950 exists. The Sub-section (1) of Section 13 of the Act is as under:- 13. The Sub-section (1) of Section 13 of the Act is as under:- 13. Eviction of tenants.-(1) Notwithstanding anything contained in any law or contract, no Court shall pas any decree; or make any order; in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent, therefore, to the full extent allowable by this Act, unless it is satisfied- .(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or .(b) that the tenant has willfully caused or permitted to be caused substantial damage to the premises; or .(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the Court has materially altered the premises or is likely to diminish the value thereof ; or .(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord’s interest therein; .(e) that the tenant has assigned, sub-let or otherwise parted with the possession of , the whole or any part of the premises without the permission of the landlord; or .(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or .(g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or .(h) that the premises are required reasonably and bona fide by the landlord- .(i) for the use of occupation of himself or his family, or .(ii) for the use or occupation of any person for whose benefit the premises are held, or .(iii) for a public purpose, or .(iv) for philanthropic use; or .(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or .(j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or .(k) that the landlord requires the premises in order to carry out any building work. .(i) at the instance of the State Government in pursuance of an improvement scheme or development scheme; or .(ii) because the premises have become unsafe or unfit for human habitation, or .(iii) upon the requisition of a local authority; or .(l) *** *** *** *** *** ***” 18. Since, the appeal is the continuation of the suit itself , therefore, if the tenants comes with a specific case that some events took place after the decision of the suit by the trial Court and those events, if taken into consideration, it will prove that cause of action which accrued for filing the suit itself has come to an end, then in view of Order 7 Rule 7, CPC, those subsequent events can be taken into consideration and relief can be moulded accordingly. This proposition will be in consonance with the law already settled by authoritative pronouncement of the Hon’ble Supreme Court while interpreting the scope of Order 7 Rule 7, CPC. Ordinary rule that rights of the parties must be determined as were at date of filing of suit is ordinary rule of law, but it has exception. This exception advances cause of justice and gives benefit to plaintiff as well as to the defendant depending upon the facts of the each case. To do complete justice between the parties, the Court may depart from the general rule and mould relief on the basis of altered circumstances, may be advantageous to the plaintiff or advantageous to the defendant. The Courts are not concerned with to whom advantage goes. The Court uninfluenced by advantage to one or another, is to do justice. Continued existence of certain right is essential requisite for according relief asked for is, if lost before relief is granted, the Court must decline the relief to the party where it is required by law. 19. Coming into existence of some material fact, which goes to the root of the case and more particularly, the facts, which are in relation to the act omission and conduct of the landlord relating to the ground on the basis of which, eviction is sought then those facts at least required to be considered by the Court to find out whether in view of the bar created by the statutory provision, Sub-section (1) of Section 13 of the Act of 1950, the decree of eviction against the tenant can be upheld or not. In the case of Shakuntala Bai, 2004 (5) SCC 772 , the death of the landlord during the pendency of the suit was an unfortunate event and in that case the suit was amended to include the need of the heirs of the landlord. Therefore, the Hon’ble Apex Court held that when amendment is allowed, the proceedings have to be decided on the basis of the amended pleading. The view supports the taking into account the subsequent events. In the above case also the subsequent event of development of need of the premises for the family members of the landlord were allowed to be taken as a ground for eviction against the tenant. Here in this case, the plaintiff’s own case is that premises is required for her husband and her husband has no other suitable accommodation to run photostat Copy shop, but the documents placed on record before the first appellate Court by the appellant prima facie makes out a issue for enquiry in the light of the provisions of Section 13(1)(h) and Sub-section (2) of Section 14 of the Act of 1950. 20. The first appellate Court itself found difficulty in rejecting the applications of the defendant for amendment of the written statement without rejecting the pleas on merit, which were raised by the appellant-defendant-tenant in the application under Order 6 Rule 17 and under Order 41 Rule 27, CPC. The first appellate Court had no jurisdiction to record findings on disputed question of facts while deciding applications under Order 6 Rule 17 and under Order 41 Rule 27, CPC. The first appellate Court further merely on the basis of oral statement of the plaintiff and her husband accepted those pleas, which are contrary to the documents of the plaintiff and the copies of which are placed on record by the appellant defendant. If the plaintiff has some explanation for the admission of her husband made in writing in another Court proceedings and about other documents then she may have right to explain if she can explain but for that also defendant gets right to cross-examine plaintiff and his witnesses and has right to rebut those evidence. Whether the building constructed on plot No. 241 was not of plaintiff’s husband and is not available to him and whether it is not suitable for running the shop of photostat copy business etc. Whether the building constructed on plot No. 241 was not of plaintiff’s husband and is not available to him and whether it is not suitable for running the shop of photostat copy business etc. are the relevant facts for the purpose of the ultimate decision of the issue involved in the suit and appeal. The facts came into existence only after the decision of the trial Court and all the facts and the evidence are material and relevant looking to the nature of the litigation between the parties. Since, the documents except sale confirmation letter of 1980 (which is only a supporting document) all the documents of latter date than the date of Judgment and decree of the trial Court and came into existence even after filing of the first appeal by the appellant, therefore, any bar created by Clauses (a) and (aa) of Sub-rule (1) of Rule 27 of Order 41, CPC has no application. Therefore, the first appellate Court committed serious illegality in rejecting the applications of the appellant filed under Order 6 Rule 17 and under Order 41 Rule 27, CPC as the first appellate Court ignored Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act while deciding the applications and further committed serious error in observing that appellant has not shown his due diligence by not filing the applications earlier. Section 13 of the Act of 1950 put a restriction against passing of the decree for eviction unless Court is satisfied about existence of any of the grounds mentioned in Section 13 of the Act of 1950. Since, appeal is continuation of suit, therefore, the tenant even, after decree for eviction against him, may take a plea that due to subsequent event, the landlord is not entitled for the decree. 21. In view of the above, the substantial questions of law Nos. 1 and 2 are decided in favour of the appellant. The order of the first appellate Court dated 24th Sept., 2003 is liable to be set aside, hence, set aside. The applications filed by the appellant under Order 6 Rule 17 and under Order 41 Rule 27, CPC deserves to be allowed, hence, allowed. In view of the finding on substantial questions of law Nos. 1 and 2 as above, the finding recorded by both the Courts below on issues Nos. The applications filed by the appellant under Order 6 Rule 17 and under Order 41 Rule 27, CPC deserves to be allowed, hence, allowed. In view of the finding on substantial questions of law Nos. 1 and 2 as above, the finding recorded by both the Courts below on issues Nos. 2, 3 and 4 required to be set aside because after amendment of the written statement and after permission to produce additional evidence to the appellant, the issues about personal bona fide necessity, comparative hardship and partial eviction will require to be decided afresh on the basis of subsequent pleadings as well as on the basis of the eviden