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2014 DIGILAW 644 (RAJ)

Abdul Hameed v. The Rent Tribunal, Jodhpur

2014-03-05

SANGEET LODHA

body2014
JUDGMENT 1. - This writ petition is directed against order dated 8.1.14 passed by the Rent Tribunal, Jodhpur Metropolitan City in Rent Case No.748/12 (old No.204/11), whereby an application preferred on behalf of the petitioner-tenant under Order 6, Rule 17 of CPC seeking leave to amend the reply, stands rejected. 2. The respondent filed a petition seeking petitioner's eviction from the rented premises, a shop, on the ground of bona fide necessity of his grand son. It is averred in the petition that the respondent's grand son after completion of his course of Chartered Accountancy, intends to set up his office in the premises sought to be vacated. 3. The petition is being contested by the petitioner taking the stand that sufficient alternative accommodation is available with the landlord for setting up the office for his grand son, if so required. That apart, the stand taken is that the premises in question is situated on the way from Sojati Gate to Tripoliya Market, which is very busy and congested market road and even no vehicle could be parked there for a moment and therefore, the premises in question is not suitable for setting up of office of the Chartered Accountant (C.A.). 4. During the pendency of the petition, the petitioner preferred an application seeking leave to amend the reply so as to bring the subsequent event on record. It was stated that the respondent's grand son has already completed his studies of C.A. and thereafter, he has already set up his office near Raj Market at Nai Sadak, Jodhpur and therefore, his requirement stands satisfied. The petitioner contended that in view of the subsequent event, the bona fide requirement as pleaded stands eclipsed and therefore, it is necessary to bring the subsequent event on record by way of amendment of the reply. 5. The application was contested by the respondent-landlord by filing a counter thereto wherein, the averments made in the application were specifically denied. It was contended that the application preferred by the petitioner is only a delaying tactics adopted and therefore, the same deserves to be dismissed. 6. After due consideration of the rival submissions, the application stands rejected by the Rent Tribunal by the order impugned. Hence, this petition. 7. Learned counsel for the petitioner contended that the order impugned passed by the Rent Tribunal is in flagrant disregard of law and rules of procedure. 6. After due consideration of the rival submissions, the application stands rejected by the Rent Tribunal by the order impugned. Hence, this petition. 7. Learned counsel for the petitioner contended that the order impugned passed by the Rent Tribunal is in flagrant disregard of law and rules of procedure. Learned counsel submitted that the main issue involved in the petition is that whether respondent's need as narrated in the petition, is reasonable and bona fide or not and therefore, the facts which the petitioner wants to incorporate in the reply are very relevant inasmuch as, if the respondent has acquired alternative accommodation and his bona fide need as pleaded stands eclipsed, the petition for eviction is bound to fail. Learned counsel submitted that the Tribunal has seriously erred in observing that the petitioner may lead evidence by seeking permission of the Tribunal and therefore, the facts as pleaded are not required to be incorporated in the reply. Learned counsel submitted that for leading evidence, there must be specific pleadings and therefore, the reason assigned by the Tribunal while rejecting the application preferred, is ex facie erroneous. Learned counsel submitted that while considering whether an application for amendment should or should not be allowed, the court cannot enter into merits of the amendment sought for. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of " Rajesh Kumar Agarwal & Ors. v. K.K. Modi & Ors.", 2006 AIR SCW, 1538. 8. I have considered the submissions of the learned counsel and perused the material on record. 9. Undoubtedly, Order 6, Rule 17 of CPC confers jurisdiction on the court to allow either party to alter or amend its pleadings at any stage of the proceedings and on such terms as may be just. It is guiding principle of amendment that all amendments which are necessary for the purpose of determining the real question in controversy between the parties to any proceedings shall be generally allowed. It is guiding principle of amendment that all amendments which are necessary for the purpose of determining the real question in controversy between the parties to any proceedings shall be generally allowed. The pretrial amendments are allowed more liberally than those which are sought to be made after commencement of the trial or after conclusion thereof.Normally, the right to relief must be judged by reference to the date of suit or legal proceedings were instituted but the subsequent development which have bearing on right to relief claimed by the party, may be permitted to be brought on record by way of amendment of the pleadings. However, the power conferred under Order 6, Rule 17 is discretionary and has to be exercised judicially on consideration of the totality of the facts and circumstances of the case. 10. The question with regard to amendment of the petition for eviction on the ground of bona fide necessity, where the bona fide requirement is alleged to have become extinct on account of subsequent developments has been dealt with by this court and the Hon'ble Supreme Court . 11. In the matter of " Gaya Prasad v. Sh. Pradeep Srivastava", 2001 (1) RCJ, 522(SC) , the Hon'ble Supreme Court observed : "The crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps the utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in out litigative slow process system subsists. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. It is pernicious, and unjust to shut the door before the applicant just on the eye of his reaching the finale, after passing through all the previous levels of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period." (emphasis supplied) 12. In " Pratap Rai Tanwani & Anr. In " Pratap Rai Tanwani & Anr. v. Uttam Chand & Anr.", (2004) 8 SCC, 490 , the Hon'ble Supreme Court observed : "7. It is a stark reality that the longer is the life of the litigation the more would be the number of developments sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent developments during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed is to erase the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an applicant just on the eve of his reaching the finale after passing through all the previous levels of the litigation merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period." 13. Thus, well settled legal position is that the crucial date for deciding bona fide requirement of the premises by the landlord is the date of the suit/petition and it must also continue throughout the progress of the litigation and must exist on the date of decree of the final court but at the same time if during the pendency of the litigation subsequent developments and events happen and the landlord comes into possession of vacant premises which is suitable and sufficient to satisfy the requirement of the landlord, such events or developments may be taken note of to adjudge the bona-fide and reasonability of the need shown by the landlord. Such subsequent developments and events are to be taken note only when the need of the landlord can be shown to be completely eclipsed by such subsequent events. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the landlord should have been completely vanished by such subsequent events. (vide Legal Representatives of Abdulla v. Priyambda Sharma, 2013(2) WLC(Raj.), 175) 14. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the landlord should have been completely vanished by such subsequent events. (vide Legal Representatives of Abdulla v. Priyambda Sharma, 2013(2) WLC(Raj.), 175) 14. Adverting to the facts of the present case, it is to be noticed that when the rent petition was filed the bona fide requirement of the premises was pleaded by the respondent in terms that his grand son who is pursuing the studies of C.A. intends to set up his office therein. A perusal of the application preferred by the petitioner seeking leave to amend the reply reveals that the averments sought to be incorporated by way of amendment so as to establish that the bona fide requirement of the landlord has totally eclipsed, are absolutely vague. Moreover, it is not the case sought to be set up that the respondent-landlord or his grand son has acquired the premises of their own. It is pertinent to note that the petitioner has not even pleaded in the application filed as to when the respondent acquired the vacant possession of the premises and has set up the office therein. In the considered opinion of this court, the averments sought to be incorporated in this regard were required to be very specific showing that on account of the subsequent event sought to be brought on record, the bona fide requirement of the premises by the landlord, stands totally eclipsed. Suffice it to say that the facts alleged to be based on subsequent event sought to be incorporated by the petitioner by way of amendment of the reply, in no manner, prima facie show that the bona-fide need as propounded by the landlord stands completely eclipsed. That apart, it is pertinent to note that para no.10 (1A) sought to be incorporated even includes the averments regarding non suitability of the premises in question for the bona fide requirement pleaded, which are in no manner based on subsequent event. 15. In the matter of " Sadhana Lodh v. National Insurance Co. Ltd." 2003(3) SCC, 526 , the Hon'ble Supreme Court while considering the scope of interference by the High Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India observed:- "7. 15. In the matter of " Sadhana Lodh v. National Insurance Co. Ltd." 2003(3) SCC, 526 , the Hon'ble Supreme Court while considering the scope of interference by the High Court in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India observed:- "7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision." 16. In view of the discussion above, in the considered opinion of this court, on the facts and circumstances of the present case, the Rent Tribunal has committed no jurisdictional error in rejecting the application preferred on behalf of the petitioner seeking leave to amend the reply so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 17. In the result, the writ petition fails, it is hereby dismissed. No order as to costs.Petition Dismissed. *******