CR No.6243 of 2010 (O&M) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6243 of 2010 (O&M) Date of decision:30.03.2011. Smt. Chanchal Sharma ...Petitioner Versus Des Raj ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. B.R.Mahajan, Advocate, for the petitioner. Mr. Sudeep Mahajan, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against order dated 17.08.2010 passed by the learned Appellate Authority (Fast Track Court), Amritsar, by which application filed under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [for short “CPC”] by the landlady for amendment of the eviction petition in order to change the nature of necessity in the grounds of eviction originally pleaded, has been declined. The petitioner filed an application under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 [for short “the Act”] in order to evict the respondent from the demised premises (shop) being a part of Building No.54, Punjab Roadways Colony, Islamabad, Amritsar which was allegedly rented out @ `200/- per month. The ejectment was sought, inter alia, on the ground of personal necessity which was pleaded as under: - “that the applicant requires the shop in dispute for his own use and occupation as his only son has completed his graduation and wanted to settle her only son by starting some business in the shop in dispute.” The learned Rent Controller, Amritsar, vide his order dated CR No.6243 of 2010 (O&M) -2- ***** 10.11.2006, dismissed the eviction petition on all counts and while recording the finding with regard to personal necessity observed as under: - “42. The authorities cited by the learned counsel for the applicant are not applicable to the facts of the case in hand because the facts of the case referred are different from the facts of the case in hand. Firstly for the reasons that in the present case the applicant required the premises for her own use also. But this fact has neither proved nor any evidence to that effect has been led on the file rather it has come on record that applicant herself is old lady and is doing house hold work. Secondly, there is no cogent evidence on the record to prove that son of the applicant was doing business with his father for about five years and has experience of five years at his back. Thirdly, son of the applicant who was a graduate at the time of filing of the petition has completed LL.B. and has entered into practices. Further his father with whom he had temperamental difference had already expired during the pendency of the petition. It is also an admitted fact that his father was working on the first floor of the house prior to his death and no body is looking after his work. So the question of temperamental difference, if any, is also not there though this fact was also out of the pleadings. The evidence of Assistant of the employment exchange is of no help to the petitioner because the son of the applicant gave information prior to the filing of the petition and thereafter as I have already mentioned above that he has completed his LL.B. and started practice. Moreover, it is not a material evidence that if some body name is reflecting in the employment exchange it means that he is unemployed. Rather this fact shows that he never intended to start the business of CR No.6243 of 2010 (O&M) -3- ***** furniture and wanted to get the employment through employment exchange. Moreover, it was not brought on record by the applicant that after the death of his father he is doing any sort of work in the place where his father was doing the furniture work besides proving the source for the business.” The landlady filed statutory appeal in which she filed an application under Order 6 Rule 17 of CPC in order to amend sub para No.(v) of the eviction petition to change the averments made with regard to personal necessity to the following effect: - “The son of the applicant namely Anil Sharma has passed his LL.B. Degree and he has been enrolled as an Advocate in the year 2005 and he is practicing as an Advocate in District Courts, Amritsar. His licence No. is 939/2005. As such, as he has started practice as an Advocate in Distt. Courts, Amritsar, the shop in question is required for his office bona fide. The son of the applicant is not in possession of any such accommodation in urban area of Amritsar nor he has vacated the same after the commencement of Act No.III of 1949. As such the shop in question is urgently required by him for running of the office and the same is liable to be vacated on this ground.” This application was contested by the tenant and the learned Appellate Authority dismissed the same with the following observations:- “In the instant case it is not that the requirement of amendment has arisen now. The original plea of the applicant was that she requires the shop in dispute for her own use and occupation as her only son had completed his graduation and she wanted to settle her only son by starting some business in the shop. Now the applicant/appellant might say that at the time of filing of the ejectment petition, her son was only graduate and CR No.6243 of 2010 (O&M) -4- ***** was not LL.B. this plea does not lie in the mouth of the applicant since AW5 Palpinder Singh was examined by the applicant on 24.03.2003 and even on that date, he stated in his affidavit that the applicant wants to settle her only son who is unemployed and having knowledge of steel furniture and now he is doing additional study. This affidavit was field on 24.03.2003 and as per the application, the son of the applicant passed LL.B. and started his practice in the year 2005 which shows that he was doing LL.B. in the year, 2003, but AW5 never disclosed this fact even and not only this, the ejectment petition was dismissed on 10.11.2006 i.e. even 3 years after the evidence of AW5 Palpinder Singh and one year after the completion of LL.B. by the son of the applicant but no effort was made by the applicant/appellant to seek the amendment of ejectment petition and no such application was filed before the trial court on this ground. Even in his cross-examination on 02.04.2003, he stated that Anil Kumar was doing LL.B. and only last semester was to be completed for the completion of LL.B. Due to these reasons, the facts of the above said authority are not similar to those of the instant case.” Aggrieved against the aforesaid order, the present revision petition has been preferred. Learned counsel for the petitioner has argued that the amendment sought is innocuous because earlier it was alleged that it is required for the purpose of the business of the son of the landlady and now it is sought to be alleged that he has completed his LL.B. and wanted to set up his office, therefore, the purpose would remain the same i.e. the requirement of the son of the landlady. He has submitted that the Courts can always take into account the subsequent events. In this regard, he has relied upon a decision of this Court rendered in CR No.7849 of 2010 titled as `Surinder Kumar and others Vs. Smt. Kamla Wati and others', decided on 17.02.2011. CR No.6243 of 2010 (O&M) -5- ***** On the other hand, learned counsel for the respondent/tenant has submitted that acquisition of the LL.B. degree by son of the landlady is not a subsequent event because son of the landlady had started practice in the year 2005, whereas the eviction petition was dismissed on 10.11.2006, therefore, it is alleged that it is not a fact which was not within the knowledge of the petitioner or inspite of due diligence it could not have been raised before the learned Rent Controller. He also submits that it is altogether a new ground on which the petitioner can always file a fresh eviction petition but if this ground is allowed to be taken in the appeal, he would loose his right to contest it before the learned Rent Controller. He also submits that the learned Rent Controller, while dismissing the eviction petition, had categorically observed that there was no cogent evidence on record which could prove that son of the landlady wanted to start business in the premises. I have heard both the learned counsel for the parties and have perused the record with their able assistance. Initially, when the eviction petition was filed, the need of the son of the landlady was to do some business but when she could not succeed before the learned Rent Controller, the need is tried to be changed from business to profession. The question is as to “whether it is a subsequent event on the basis of which the amendment sought can be granted”? As a matter of fact, the case of the landlady in her application for amendment is that her son Anil Sharma had passed LL.B. degree and was enrolled as an advocate in the year 2005 and entered into practice as an advocate after obtaining license No.939/05. Thus, the son of the landlady had already started practice when the eviction petition was being tried by the learned Rent Controller, but this plea was never taken before the learned Rent Controller and when she had lost before the learned Rent Controller, this plea is being sought to be taken as a subsequent event. The answer to the question that why this plea was not taken earlier is that the landlady was confident of the success of her earlier plea taken in the eviction petition but when she could not make it before the learned Rent Controller on the said plea, the entire case is being changed on the pretext of subsequent events. The amendment in Order 6 Rule 17 of CPC was brought only to curtail this kind of applications as it is provided therein that “no application for amendment shall be allowed after the trial has CR No.6243 of 2010 (O&M) -6- ***** commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial”. If the landlady really wanted the demised premises for the purpose of the office of her son who was a practicing lawyer even at the time when the petition was pending before the learned Rent Controller, she should have filed an application for amendment of the eviction petition before the learned Rent Controller. Thus, I do not find the cause shown by the petitioner as a subsequent event for the purpose of seeking amendment of the eviction petition to introduce an altogether a new case at the belated stage. Hence, the present revision petition is found to be without any merit and the same is hereby dismissed, however, without any order as to costs. March 30, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE