S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. 1. S.B. CIVIL WRIT PETITION NO.2049/2004 Rameshwar Lal . versus Nijamuddin and another. 2. S.B. CIVIL WRIT PETITION NO.2753/2004 Rameshwar Lal . versus Nijamuddin and another. 3. S.B. CIVIL WRIT PETITION NO.2517/2004 Rameshwar Lal . versus Nijamuddin and another. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Sajjan Singh, for the petitioner. Mr.K.C.Samdariya, for respondents DATE OF JUDGMENT : 2nd May, 2008. S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 2/10 JUDGMENT 1. By all these three writ petitions, the petitioner – tenant has challenged the order of the Appellate court dated 13.4.2004 whereby the Appellate Court rejected the application of the petitioner under Order 6 Rule 17 C.P.C. seeking amendment in the written statement filed in a suit filed by the plaintiff – respondent for eviction of a shop situated at Surajpole, Pali. 2. The learned Appellate Court in the impugned order upheld rejection of said amendment application on the ground that earlier also the petitioner – tenant had applied on 12.8.1999 under Order 6 Rule 17 C.P.C. seeking to bring on record subsequent development taking place during trial of handing over of vacant possession of one shop by another tenant Anna Ram to the plaintiff – landlord and the said application was rejected by the learned trial Court. Thereafter another application under Order 6 Rule 17 C.P.C. was filed by the petitioner – tenant on 30.10.2001 on the ground that the plaintiff - respondent had converted one hall into four different shops and four shops were now available with him and therefore, the eviction suit S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 3/10 filed for bonafide necessity for establishing the shop for his son Akbar could not be entertained against the tenant. The said application was also rejected by the learned Trial Court and appeal against that was also rejected by the learned Appellate Court i.e. the Dist. Judge, Pali by the impugned order dtd.13.4.2004 on the ground that said applications were filed to delay the trial and said amendment could not be allowed at the appellate stage because that would require retrial on the basis of issues which may be framed on such amendment in the written statement. 4. Being aggrieved by the said order, the petitioner – tenant has approached this Court by way of present writ petitions under Article 227 of the Constitution of India. 5. Mr. Sajjan Singh, learned counsel for the petitioner – tenant relying on the following judgments urged that the learned trial Court is empowered to take into account subsequent developments taking place during the course of trial including at appellate stage because the appeal is nothing but continuation of the suit and therefore, the learned Courts below have erred in rejecting the application for S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 4/10 amendment in the written statement and the said order deserves to be set aside. He relied upon the following judgments in his written submissions as under: 1. Smt. Mohani V/s Mst. Gopli @ Shanti - RLR 1990 (1) 553. In the said case, this Court held as under: “Amendment of written statement at the stage of second appeal when allowed – Suit filed in the year 1964 for eviction on the ground of tenancy and in the alternative for possession on the basis of title – In written statement pleaded that he was the owner of disputed property since the time of his ancestors and that he was not tenant and had been in possession of property since long – Application for amendment in written statement moved in second appeal in the year 1990 for adding plea of adverse possession – Amendment allowed on cost.” 2. Smt. Ganga Bai V/s Vijay Kumar - AIR 1974 SC 1126. In the said case, the Hon'ble Supreme Court observed as under: S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 5/10 “Order 6 Rule 17 C.P.C. Amendment of memorandum of appeal – Discretion of Appellate Court – when valuable rights had accrued to the parties. 3. Akshaya Restaurant V/s P. Anjanappa and anr. - 1995 DNJ (SC) 372. “Amendment of written statement- Definite stand taken by defendant sought to be modified - Same allowed by High Court under Section 115 – Held proper. 4. G. Nagamma and anr. V/sSiromanamma and anr. - 1996(2) SCC 25 Amendment of plaint – plaintiff seeking alternative relief permissible. 5. Shrimehboob Ali and ors.V/s Smt. Habiban 2006 SC CANDID 680 “Whether the first appellate Court could have allowed the application filed under Order 6 Rule 17 CPC and permitted the defendants – tenants to take a plea relating to non-termination S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 6/10 of tenancy by the landlord by surviving notice under Section 106 of the Transfer of Property Act. The first appellate Court allowed the amendment”. 6. Mr.K.C. Samdaria, on the side opposite appearing for the respondent – plaintiff landlord relying on the following judgments urged that no such amendment could be allowed at appellate stage and moreover it is for the landlord to decide how to adjust his bonafide necessity and merely because other shops became available, it does not mean that the plaintiff could not pursue his suit for eviction on the ground of bonafide necessity. He further urged that the petitioner – tenant is only trying to delay the disposal of the appeal, which was meritless and he somehow wants to remain in rented premises and therefore, the learned Courts below have rightly rejected the amendment appliation. He relied on the following judgments: 1) Shikharchand Jain V/s Digamber Jain Praband Karini Sabha and ors. - AIR 1974 (SC) 1178 In the said case, the Hon'ble Supreme Court observed as under: S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 7/10 “Ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a court of appeal) to take notice of events which have happened after the institution of the suit and aforesaid relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the Litigation, or (3) to do complete justice between the parties.” 2) Gaya Prasad V/s Pradeep Shrivastava - AIR 2001 SC 803. In the said case the Hon'ble Supreme Court held as under: “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 have utility for him to reach the said crucial date S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 8/10 of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bonafides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our 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 an applicant just on the even 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.” 3. Smt. Kamal Dhawla V/s Krishna Katta - 2001 WLC (Raj.) UC 229 . S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 9/10 4. 2004(3) RLW (Raj.) 1677 – Manikyapuri Housing Coop. Society V/s Mahesh Chaturvedi and anr. 5. 2004(3) CDR 1871 – Devi Lal and ors. V/s Gurjeet Kaur and ors. 6. 2004 (2) DNJ (Raj.) 584 Ghasi Ram V/s Addl. Dist. Judge No.1, Sikar and ors. 7. I have heard the learned counsel and perused the record of the case and judgment cited at Bar. This Court is of the considered opinion that the learned courts below cannot be said to have committed any error in rejecting the application under Order 6 Rule 17 C.P.C. for amendment in the written statement filed by the petitioner – tenant at belated stage during pendency of appeal against eviction decree of the trial Court. During protracted litigation in rent control and eviction matters, certain subsequent developments are bound to take place and if the Courts would go on allowing amendments in pleadings at appellate stage, for such subsequent developments, such litigation would become open ended and endless in period of time. Such cannot be the intention of the legislature. Bonafide necessity on the date of institution of the suit has to be seen S.B. CIVIL WRIT PETITION NO.2049/2004 -Rameshwar Lal versus Nijamuddin and another, S.B. CIVIL WRIT PETITION NO.2753/2004 - Rameshwar Lal versus Nijamuddin and another and S.B. CIVIL WRIT PETITION NO.2517/2004 - Rameshwar Lal versus Nijamuddin and another. .: JUDGMENT DTD.2.5.2008 10/10 and therefore, in the facts and circumstances of the case, if the Courts below have found that availability of subsequent shops to the landlord was of no avail to the petitioner – tenant. There is nothing wrong in it. Thus, the learned court has not committed any error in rejecting the said application for amendment in the pleadings. Allowing such amendment at appellate stage would further amount to retrial in light of such subsequent developments and that is not to be encouraged. Finality and certainty in legal process is the objective for which we all should persevere and not other way round. Jurisdiction under Article 227 of the Constitution of India of this Court while dealing with such matters is limited and unless jurisdictional errors have been committed by the Courts below, this Court would not very liberally invoke its jurisdiction under Article 227 of the Constitution of India to quash and set aside the orders passed by the learned courts below. 8. Accordingly these writ petitions are found to be devoid of merit and the same are dismissed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No. Ss/-