CR No.7849 of 2010 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.7849 of 2010 (O&M) Date of decision:17.02.2011. Surinder Kumar and others ...Petitioners Versus Smt. Kamla Wati and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Anil Chawla, Advocate, for the petitioners. Mr. B.R.Mahajan, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. This revision petition is directed against the order of the learned Rent Controller, Amritsar dated 29.10.2010 by which an application filed by the landlord for amendment of the eviction petition, has been dismissed. In brief, the shop in dispute was let out to the predecessor-in-interest of the respondents @ `60/- per month, who allegedly did not pay the arrears of rent w.e.f. 01.04.1993 and had sublet the demised premises to respondents No.5 and 6 by parting with its possession. The petitioners had claimed eviction of the respondents also on the grounds of the building having become unfit and unsafe for human habitation and personal necessity. Initially, the averments made in paragraph 5(v) of the eviction petition were as under: - “5. xxx xxx xxx xxx (v). That the applicants require the shop in dispute bona fide for their own use and occupation for running the business of shawls and selling it as retail as well as whole sale which is primarily the business of the applicants and they have got only one shop in chowk Ghanta Ghar, Amritsar, which is situated in a very interior part of the city and that shop, which is on rent with the applicants, is very much small shop and its very difficult for four persons to carry on the business in that CR No.7849 of 2010 (O&M) -2- ****** shop and wants to do separate business and as the applicant No.2 has got two children out of whom one is of marriageable age and the second is not good in studies and has to be settled in business and thus has enough responsibilities on his head and thus that shop is only meant for business of one person only and applicant No.2 is using that shop for his business purposes whereas the applicant No.3 and his sons have no shop for carrying on business of shawls and the shop in dispute which is in occupation of respondents Nos.5 & 6 is an ideal place for running the business of shawls for applicant No.3 and his sons as the son of the applicant No.3 has completed his education and he wants to settle along with his brother and father in business and as such there is no accommodation in his possession for carrying on his business of shawls, therefore, the shop in question is bona fide required by the applicant No.3 for himself as well as his two sons who are very much in need to do the business at this age and they require the demised shop bona fide for doing the business and thus the children will remain under the look and care of applicant No.3 and their mother as the remaining part of the property is residential one. Thus, the applicants Nos.1 to 3 and the sons of the applicant No.3 require the shop for their own use and occupation and for the use and occupation of children of applicant No.3 and the applicant No.3 and they bona fide require the same. They have no other shop except one shop which is on rent and is situated in a very interior place of the city i.e. at Ghanta Ghar, Amritsar. Even otherwise, that shop which is under the tenancy of the applicants, has come under the proposed scheme of the Punjab Government and that shop falls under the CR No.7849 of 2010 (O&M) -3- ****** scheme, therefore, the shop in question is bona fidely required by all the applicants for their own use and occupation and for the use and occupation of applicant No.3's children. The applicants have not vacated any other shop in the urban area concerned after the commencement of Act III of 1949 nor they are occupying any other shop in the urban area concerned in their own rights.” Later on, at the fag end of the trial, the landlords had filed application for amending paragraph 5(v) of the eviction petition for the purpose of incorporating the following averments: - “5. xxx xxx xxx xxx (v). ......... That the applicants bona fidely requires the shop in question as the shop at Nehru Complex bearing Shop No.11, First Floor, Amritsar is not feasible for doing the business of shawls which was initially opened by Gautam son of Inderjit Behal and that business could not flourish in that shop and huge losses were suffered by Gautam on account of the non-availability of customers of shawls and that shop has been put for sale by the applicants and is lying vacant and no merchandise of any nature is lying in that shop. Similarly shop No.141 is also not feasible and suitable for doing business by Ravinder Nath, Inderjit and Gautam and Gaurav because of the simple reason that it has been declared as no parking zone area by the Deputy Commissioner, Amritsar as well as it is situated at backside of market and no customer is available into the said market and as yet except leaving aside few hops who are dealing with the business of preparation of PARSHAD and eatables etc. and that shop is also not feasible for doing the business of shawls.” It was alleged that on 28.04.2001, the petitioners had given a bid for CR No.7849 of 2010 (O&M) -4- ****** purchase of a shop which was accepted and shop No.11 at First Floor, Nehru Complex, Amritsar was allotted to them on payment of six half-yearly installments. This shop was used by son of Inderjit Behl, namely Gautam since the year 2003, but after 4-5 years of business it was closed as there was no market. Now the said shop is put to sale in the year 2010. It is alleged that in the year 2009, the shop of the petitioners situated at Ghanta Ghar was demolished in Galiyara scheme and in place of it a shop No.141 was allotted to them in the year 2009, but it was not fit for business as the market is at the backside of the area where no customer is available and there is no area for parking as the Government has declared that area as `No Parking Zone' in the year 2010. It was also alleged that both the sons of petitioner No.3 got married and have been blessed with one child each and have no shop in their possession, therefore, the shop in dispute is required for bona fide necessity. All these events allegedly happened subsequently, as a result of which the application for amendment had to be filed. It was also alleged that the evidence with regard to the subsequent events has already been brought on record and the petitioners only wanted to incorporate the pleadings and to prove site plans of the said shops and examine the photographer. It was also alleged that it is their eviction petition, but the application has been dismissed by the learned Rent Controller on the ground that it would be delaying the eviction proceedings. Learned counsel for the respondents has submitted that there is no error in the order of the learned Rent Controller because there are certain admissions made by the petitioners which they wanted to withdraw and there is a huge delay in seeking amendment. I have heard both the learned counsel for the parties and perused the record. There is no dispute on the point of law that in the eviction petition, subsequent events can be considered which may come up during the pendency of the eviction petition for the purpose of deciding the lis between the parties. In this regard, reference could be made to a decision of the Supreme Court in the case of Mohd. Ismail Vs. Dinkar Vinayakrao Dorlikar, 2009(4) R.C.R. (Civil) 890. There is no denial to the fact that the petitioners have been allotted a shop in Nehru Complex, Amritsar which had failed and is put to sale and also the shop in their CR No.7849 of 2010 (O&M) -5- ****** possession at Ghanta Ghar, Amritsar had been demolished in the Galiyara scheme and they were allotted shop No.141 which is not fit for the business they wanted to carry on as there is no parking. All these facts, which are sought to be brought on record, had taken place subsequently to the filing of the eviction petition and if there is any delay in the amendment sought, it would be at the cost of the landlord and not the tenant. Moreover, it is also alleged by the petitioners that they had already led evidence in respect of the amendment which is sought to be brought on record, therefore, there is no question of withdrawal of any admission, rather they wanted to bring on record the facts which have taken place during the pendency of the eviction petition. After hearing learned counsel for the parties and keeping in view the facts and circumstances of the present case, I find that the impugned order is patently erroneous and is liable to be set aside. It is now settled that the subsequent events, which may come up during the pendency of the eviction petition, can be taken into consideration by the learned Rent Controller and in the present case the only amendment which is sought to be brought to the notice of the learned Rent Controller is as to what had happened during the pendency of the eviction petition in respect of the alternative sites in possession of the petitioners/landlords. It is for the learned Rent Controller to assess the bona fide necessity of the landlord on the basis of the facts before it. The dismissal of the application for amendment on the ground of delay and latches is no ground in the facts and circumstances of the present case because the facts, which are sought to be brought on record, were not earlier within the knowledge of the petitioners/landlords. In view thereof, the present petition is allowed and the impugned order is hereby set aside, however, subject to the payment of `5,000/- as costs to be paid to the respondents by the petitioners. February 17, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE