1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1607/2010. Shaikh Abdul Nasar s/o Abdul Latif. - PETITIONER VERSUS Shaikh Nanhu s/o Shaikh Hussain - RESPONDENT ***** Mr.VS Bedre,Advocate for Petitioner; Mr.NS Jaju, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL,J. DATE : 28th October,2010. PER COURT: 1) Heard finally. 2) The writ petitioner moved an application below Exhibit-33 in Regular Civil Appeal No. 259/2005 before the learned District Judge-4, Ahmednagar, seeking amendment to the pleadings (written statement). Rejection by order dated 7th October, 2008 is impugned in the writ. 3) Mr.Bedre, learned Counsel for petitioner, submits that the amendment sought in 2 the written state is necessitated as the events are subsequent, occasioned due to marriage of daughter of the landlord and the son of the landlord getting regular employment and serving away from abode. Consequently, according to Mr.Bedre, requirement for bona fide use will be diluted and it necessitates to bring on r record under amendment. 4) In order to impress his point, Mr.Bedre has took recourse to the Judgment in the matter of Omprakash Gupta Vs. Ranbir B.Goyal – (AIR 2002 SC 665). The Hon’ble Lordships have observed in paragraphs 11 and 12, as under : “The ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take a note of subsequent events and moult the relief accordingly subject to the following conditions being satisfied : (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; 3 (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. In Pasupuleti Venkatekswarlu Vs. The Motor and General Traders, AIR 1975 SC 1409, this Court held that a fact arising after the lis, coming to the notice of the Court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the Court cannot be blinked at. The Court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that Court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned : (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bend if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii0 such cognizance of subsequent events and developments should be cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court 4 may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the reliefs so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs.Trojan and Co.Vs. R.M.N.N.Nagappa Chettiar, AIR 1953 SC 235, this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao V. Sita Ram Kesho and other's, (1898) 25 Indian Appeals 195 (PC), their Lordships observed, that as a rule, relief not founded on the pleadings should not be granted.” 5) Based on above judgment, Mr.Bedre reiterated, since the development being subsequent, it is imperative to be brought on 5 record to lead proper evidence to dislodge contentions of the landlord for bona fide requirement. 6) As against above submissions, learned Counsel representing the respondent/landlord informs that bona fide need of the landlord will have to be reckoned from the crucial date of the application and would not be applicable with passage of time or subsequent development occurred during pendency of the lis. In order to substantiate his contention, learned counsel relies upon the judgment in the matter of Gaya Prasad Vs. Pradeep Shrivastava – (AIR 2001 SC 803(1). 7) The Hon’ble Lordships in paragraph 10 have observed as under : “10. We have no doubt that the crucial date for deciding as to the bonafides 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 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. During 23 years after the landlord moved for 6 eviction on the ground that his son needed the building, neither the landlord nor his son is expected to remain idle without doing any work, lest, joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. 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.” In the said judgment, the Hon’ble Lordships have also considered the earlier judgment of Full Bench in the matter of Pasupuleti Venkateswarllu Vs. Motor and General Traders, - (AIR 1975 SC 1409), which pointed to 7 the need for re-moulding the reliefs on the strength of subsequent events affecting the cause of action in the field of rent control litigation, forewarned that cognizance of such subsequent events should be taken very cautiously. 8) In another judgment reported in 1981 SC 1711, in a decision of three-Judge Bench of the Apex court, the Hon’ble Lordships have held, - “that the subsequent events should have “wholly satisfied” the requirement of the party who petitioned for eviction on the ground of personal requirement. 9) The amendment sought are apparently in the appeal, which indeed by virtue of Order VI Rule 17 CPC and proviso thereof has its limitations. The learned Judge has rightly observed that the appeal is against eviction decree. The suit was filed based on circumstances prevalent at the time of filing the suit and the question in controversy on the date of filing of the suit was material to decide the suit. The landlord had hoped that by getting the possession of the suit premises, there was better possibility of progress of their children. 10) Taking survey of above facts, I find 8 even if considering the pleadings by way of amendment, need of landlord could not be said to have been completely satisfied or it has eclipsed. Writ Petition lacks merit, dismissed. No costs. (K.U.CHANDIWAL) JUDGE bdv/