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2017 DIGILAW 474 (RAJ)

Chandra Shekhar S/o Late Shri Kanhaiya Lal Ji Soni v. Bhanu Kumar S/o Late Shri Bhanwar Lalji Taya

2017-02-09

SANGEET LODHA

body2017
ORDER : Sangeet Lodha, J. 1. This petition is directed against order dated 16.12.16 passed by the Rent Tribunal, Udaipur, whereby an application preferred by the petitioners seeking leave to amend the reply stands rejected. 2. The facts relevant are that the respondent preferred petition under Section 9 of Rajasthan Rent Control Act, 2001 (for short "the Act") seeking eviction of the petitioner from a commercial premises on the ground of default in payment of rent and reasonable & bona fide requirement. The bona fide requirement is pleaded by the respondent-landlord in terms that the premises is required for tailoring and readymade ladies garments business by his wife and daughter. The respondent pleaded that he wants to expand the shop by including open space of his residential premises for carrying on proposed garments business by his wife and daughter. 3. The petition is being contested by the petitioners by filing a reply thereto. The bona fide requirement as pleaded is denied by the petitioners. On the basis of the pleadings of the parties, the Rent Tribunal framed the issues. The evidence of the respondent stands completed and the matter is posted for petitioners' evidence. At this stage, the petitioners preferred an application seeking leave to amend the reply, which stands rejected by the order impugned. Hence, this petition. 4. Learned counsel appearing for the petitioners contended that after demise of respondent's mother, the respondent having constructed and shifted in a bungalow in Hiran Magri, son of the petitioners also having completed studies, being married and established a shop in Mochhiwara in the name of 'Shri Nakoda Golds Testing Lab', the bona fide requirement of the premises as projected no more subsists and therefore, the subsequent development being relevant to the defence set out by the petitioners, the amendment sought for could not have been declined. Learned counsel submitted that in the petition filed, the petitioners have taken the stand that since they are residing in the disputed premises, it will be convenient for his wife to carry on business therein while taking care of his mother, whereas, the mother of respondent has expired and he has already shifted his residence to Hiran Magari and thus, the bona fide necessity stands extinguished and thus, the Rent Tribunal has seriously erred in rejecting the application preferred by the petitioners. 5. 5. Undoubtedly, the Tribunal is empowered 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. 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, such subsequent events may be permitted to be brought on record by way of amendment of the pleadings. However, the power to permit amendment of pleadings is discretionary and has to be exercised judicially on consideration of the totality of the facts and circumstances of the case. 6. 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 time and again in the various decisions. 7. In "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) 8. 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) 8. 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." 9. In "Legal Representatives of Abdulla v. Priyambda Sharma", 2013(2) WLC(Raj.), 175, this court observed: "8. ……………... The well settled legal position is that the landlord is best judge of his requirement for the business purpose and he has got complete freedom in the matter. Neither tenant nor court can advice the landlord how he should adjust himself and satisfy his requirement in some other way. In the present case also the appellant is not legally entitled to say that as the adjoining shop has been vacated and after renovation of it and construction of basement, the respondent has started business of ready made garments in it. It is not required for her to got the suit shop also and after further renovation and reconstruction of both the shops to start the business indicated by her in the plaint. It is not required for her to got the suit shop also and after further renovation and reconstruction of both the shops to start the business indicated by her in the plaint. In this regard, the well settled legal position is also that if it is found that the landlord has some other vacant premises in his possession that by itself would not be sufficient to negative the landlord's requirement shown for tenanted premises but in such a situation it is expected from the landlord to establish that the premises which is vacant is not sufficient and suitable for the purpose for which he required the tenanted premises. Whether the vacant premises available to the landlord is sufficient and suitable for his requirement or not will depend upon facts and circumstances of each case but mere being in possession of a vacant premises cannot negative the need shown by the landlord. Suitability of alternative accommodation available with the landlord has to be seen from convenience of the landlord and on the basis of totality of circumstances including profession, vocation, style of living, habits and background of the landlord. The normal rule is that any litigation or a suit or an original proceeding is to be tried in all stages on the cause of action and the rights and obligations of the parties are to be adjudicated upon, as they obtained or existing on the date of commencement of the lis. But this is subject to an exception that the Court may take notice of the subsequent events of facts or law which may have happened since the commencement of the lis and grant relief to the parties on the basis of altered condition which have a material beaning on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief. This rule is to be applied in cases where it is shown that the original relief claimed, by reason of subsequent change of circumstances has become inappropriate or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. In such a case, the Court must take a 'cautious cognizance' of the subsequent changes of the fact and law to mould the relief. In such a case, the Court must take a 'cautious cognizance' of the subsequent changes of the fact and law to mould the relief. Such consideration of subsequent events or developments must be taken when they had a material impact on those rights and obligations. The well settled legal position is also that the crucial date for deciding bonafides of the need shown 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, a possession of vacant premises which is suitable and sufficient to satisfy the requirement of the landlord that events or development 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. In the present case, it cannot be said that the initial requirement shown by the respondent for the suit shop has been completely vanished merely by the reason that in the adjoining shop some business has been started by the respondent as it cannot be expected from the respondent to sit idle till the shop is vacated. Merely by the reason that in the waiting period the respondent after renovating the vacated shop and construction of basement has started some business bona fide and reasonability of the requirement show for the suit shop cannot be adjudged to be negatived." (emphasis added) 10. Merely by the reason that in the waiting period the respondent after renovating the vacated shop and construction of basement has started some business bona fide and reasonability of the requirement show for the suit shop cannot be adjudged to be negatived." (emphasis added) 10. Thus, upshot of the various decisions of the Apex Court and this court is that if the subsequent events sought to be brought on record by way of amendment of the pleadings are of such nature that the bona fide requirement of the suit premises by the landlord stands completely eclipsed, then, only such amendment which is necessary for effective and complete adjudication of the issue with regard to bona fide requirement of the premises by the landlord can be allowed by the courts at any stage of the proceedings. That apart, such subsequent event must be brought to the notice of court by making an appropriate application promptly. 11. Adverting to the facts of the present case, it is to be noticed that the bona fide requirement of the premises is pleaded by the respondent for his wife and daughter, who intend to start business of readymade garments therein. Thus, on account of the shifting of the residence by the landlord to Hiran Magri and his son starting business at Mochhiwara, the bona fide requirement of commercial premises as pleaded by the landlord for her wife and daughter as aforesaid cannot be said to have eclipsed completely. Further, the death of mother of the landlord is also not suggestive of the fact that the need of commercial premises as pleaded, stands extinguished. In this view of the matter, in the considered opinion of this court, the judicial discretion exercised by the Rent Tribunal in rejecting the application preferred by the petitioners does not suffer from any infirmity, illegality or jurisdictional error so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 12. In the result, the petition fails, it is hereby dismissed in limine.