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Rajasthan High Court · body

2019 DIGILAW 2416 (RAJ)

BHAGWAN DAS v. HEERA DEVI

2019-09-09

SANGEET LODHA

body2019
JUDGMENT 1. This writ petition is directed against order dated 1.8.19 passed by Appellate Rent Tribunal, Jodhpur Metropolitan, in Rent Appeal No.51/18, whereby an application preferred on behalf of the petitioners-tenant under Order VI Rule 17 CPC, seeking leave to amend the reply to the petition, stands rejected. 2. The respondent filed a petition seeking eviction of the petitioner from commercial premises, a shop, on the ground of reasonable and bona fide requirement, in terms of the provisions of Section 9(i) of Rajasthan Rent Control Act, 2001( for short "the Act"). The bona fide requirement was pleaded by the respondent for her son Manish Patel, an advocate by profession, who was holding the post of Additional Government Advocate at the relevant time. It was averred that Manish Patel was sharing the office with his father and brother Ashok Patel, which is not adequate for his requirement. 3. The petition was allowed by the Rent Tribunal vide judgment and order dated 10.5.18 passed in Rent Case No.156/15. Aggrieved thereby, the appeal preferred by the petitioner is pending consideration before the Appellate Rent Tribunal, Jodhpur Metropolitan. 4. During the pendency of the appeal, the petitioner preferred an application seeking leave to amend the reply to the rent petition stating that Manish Patel for whom the bona fide requirement was pleaded in the petition, has ceased to be a Government Advocate and therefore, the bona fide requirement as pleaded does not survive. That apart, the petitioner sought incorporation of the facts regarding an alternative accommodation having become available to Ashok Patel, which is lying vacant. 5. The application has been dismissed by the Appellate Rent Tribunal by the order impugned. Hence, this petition. 6. Learned counsel appearing for the petitioner contended that Manish Patel for whom the premises in question was sought to be evicted is no more a Government Advocate and therefore, the bona fide requirement as pleaded has come to an end. Learned counsel submitted that admittedly, yet another son of the respondent Ashok Patel has already acquired an alternative accommodation pursuant to the order passed by the Rent Tribunal and Appellate Rent Tribunal and the same is still lying vacant and therefore, the bona fide requirement of the premises as pleaded has completely extinct. Learned counsel submitted that admittedly, yet another son of the respondent Ashok Patel has already acquired an alternative accommodation pursuant to the order passed by the Rent Tribunal and Appellate Rent Tribunal and the same is still lying vacant and therefore, the bona fide requirement of the premises as pleaded has completely extinct. Drawing the attention of the court to the order impugned, learned counsel submitted that the subsequent event sought to be incorporated by the petitioner in the reply to the petition has not been taken into consideration by the Appellate Rent Tribunal in correct perspective and thus, the order impugned being ex facie erroneous deserves to be set aside. 7. On the other hand, learned counsel appearing for the respondent submitted that the bona fide requirement of the premises for her son was pleaded by the respondent for establishing his office as an advocate and not for Government Advocate as such and thus, even if the respondent's son has ceased to be a Government Advocate, the bona fide requirement as pleaded still survives. Learned counsel submitted that regarding the vacant accommodation being available to Ashok Patel, an amendment application was preferred by the petitioner before the Rent Tribunal as well, which was dismissed and thus, the fresh application preferred for incorporation of the same pleadings which had already been refused by the Rent Tribunal, is not maintainable. 8. I have considered the rival submissions and perused the material on record. 9. A bare perusal of the averments made in the original petition reveals that the bona fide requirement of the premises in question was pleaded by the respondent for establishment of the office of her son Manish Patel, who is advocate by profession. It was specifically pleaded that it is not possible to run office of three advocates in one premises. The averment regarding Manish Patel being appointed as Additional Government Advocate was only an additional plea in support of the bona fide requirement pleaded as aforesaid and it is not that the bona fide requirement was pleaded solely on the ground that the premises is required for establishment of the office of the respondent's son Manish Patel as Additional Government Advocate. In this view of the matter, merely because, Manish Patel has ceased to be Additional Government Advocate in no manner, it can be concluded that the bona fide requirement as pleaded has become extinct on account of subsequent development. 10. Admittedly, the application preferred by the petitioner seeking amendment of the pleadings on account of an alternative vacant accommodation having become available to Ashok Patel, yet another son of the respondent, had already been dismissed by the Rent Tribunal and thus, the prayer made by the petitioner for incorporation of the pleadings by way of amendment of reply to the petition at the appellate stage, harping on the same string, has rightly been refused by the Appellate Rent Tribunal. As a matter of fact, the application to the extent of the incorporation of the pleadings as aforesaid by amendment preferred by the petitioner before the Appellate Rent Tribunal was not even open to be entertained. 11. 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 the Supreme Court time and again in the various decisions. 12. In Hasmat Rai Vs. Raghu Nath Prasad, (1981) 3 SCC 103 , the Hon'ble Supreme Court observed : "If a landlord bona fide requires possession of a premises let for residential purpose for his own use, he can sue and obtain possession. He is equally entitled to obtain possession of the premises let for non-residential purposes if he wants to continue or start his business. If he commences the proceedings for eviction on the ground of personal requirement he must be able to allege and show the requirement on the date of initiation of action in the court which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of the litigation and must exist on the date of the decree and when we say decree we mean the decree of the final court. Any other view would defeat the beneficial provisions of a welfare legislation like the Rent Restriction Act." 13. However, in the matter of "Gaya Prasad vs. Sh. This requirement must continue throughout the progress of the litigation and must exist on the date of the decree and when we say decree we mean the decree of the final court. Any other view would defeat the beneficial provisions of a welfare legislation like the Rent Restriction Act." 13. However, in the matter of "Gaya Prasad vs. 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) 14. In the matter of "Om Prakash Gupta vs. Ranbir B.Goyal." (2002) WLC, SC(Civil),169, the Hon'ble Supreme Court while dealing with the question of courts power to take note of subsequent events and mould the relief, observed that for the said purpose following triad conditions must be satisifed:(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 15. In "Pratap Rai Tanwani & Anr. 15. In "Pratap Rai Tanwani & Anr. vs. 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." 16. Thus, upshot of the various decisions of the Apex 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 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 may be allowed by the courts. 17. As discussed hereinabove, in the instant case, on the basis of the subsequent event as pleaded, in no manner, it can be said that the bona fide requirement of the premises as pleaded by the respondent stands completely eclipsed. Thus, the Appellate Rent Tribunal has committed no jurisdictional error in dismissing the application preferred by the petitioner seeking leave to amend the petition so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 18. In the result, the petition fails, it is hereby dismissed with costs Rs.5,000/-.