Jaswant Kaur & Anr vs Subhash Paliwal & Ors

1. One Bhavani Shankar, the father of the

Respondent Nos.1 and 2, Subhash Paliwal and Gopal

Paliwal, was the owner of several properties,

including the disputed shop room. After his

demise, on 3rd January, 1998, Subhash Paliwal and

Gopal Paliwal filed a suit against the petitioners 2

for their eviction from the shop room in question

on the ground of personal necessity and bonafide

necessity of Sandeep, son of Subhash Paliwal, for

his painting business. On 22nd July, 1998, the

petitioners filed an application under Order XI

Rules 12 and 14 of the Code of Civil Procedure,

1908, for a direction upon the respondents to

produce on record the Will said to have been

executed by their late father, Bhavani Shankar, on

21st July, 1989, whereby he was alleged to have

bequeathed the disputed shop room to his younger

son, Gopal Paliwal, thereby asserting that Subhash

Paliwal was not the owner of the suit shop room and

the suit for eviction for the bonafide need of his

son was not, therefore, maintainable.

2. After hearing the submissions made on behalf of

the respective parties, the learned Civil Judge

dismissed the said application. Subsequently, the

petitioners herein filed their written statement on 3

8th December, 1998, denying the averments made in

the plaint, but without making any averment with

regard to the existence of the Will said to have

been executed by Bhavani Shankar. Ultimately, by

judgment and decree dated 2nd August, 2000, the

learned Trial Court decreed the suit for eviction

and recovery of rent in favour of the respondents,

against which the petitioners preferred First

Appeal on 28th August, 2000.

3. On 3rd August, 2002, the petitioners filed an

application in the pending appeal under Order VI

Rule 17 of the Code of Civil Procedure for

amendment of the written statement to incorporate

the submissions that in view of the Will

purportedly executed by Bhavani Shankar, Subhash

Paliwal was not the owner of the suit property and

could not, therefore, ask for eviction of the

petitioners therefrom for the personal and bonafide

requirement of his son. The learned Additional 4

District Judge No.2, Udaipur, by his order dated

13th November, 2002, dismissed the application filed

by the petitioners on the ground that despite

having knowledge of the Will in question even at

the time of filing written statement, no such

averment had been made. The revisional application

filed by the petitioners before the High Court

against the order dated 13th November, 2002, has

been lying defective and no steps have been taken

to proceed with the same.

4. According to the petitioners, on obtaining a

certified copy of the Will dated 21st July, 1989,

said to have been executed by Bhavani Shankar, the

petitioners once again made an application under

Order VI Rule 17 and under Order XLI Rule 27 of the

Code of Civil Procedure for amendment of the

written statement and for permission to bring on

record additional evidence on the ground that the

Will in question was not in their possession prior 5

to 18th November, 2002, as a result whereof they

were unable to make any reference thereto in the

written statement. The First Appellate Court by a

reasoned order dated 20th May, 2003, allowed both

the applications, against which the respondents

filed Civil Miscellaneous Appeal before the High

Court and the High Court by its impugned order

dated 19th December, 2005, allowed the appeal and

rejected both the applications filed by the

petitioners on 3rd January, 2003, under Order VI

Rule 17 CPC and Order XLI Rule 27 CPC.

5. Appearing on behalf of the petitioners, Ms.

Shobha, learned Advocate, submitted that the High

Court had erred in interfering with the reasoned

judgment of the First Appellate Court since Subhash

Paliwal did not fall within the definition of

"landlord" as defined in Section 3(iii) of the

Rajasthan Premises (Control of Rent & Eviction)

Rent Act, 1950 (hereinafter referred to as "the 6

1950 Act"), under Section 13 whereof a suit for

eviction could be brought by the landlord on the

ground of bonafide necessity for the use or

occupation for himself or his family. Ms. Shobha

submitted that neither the brother nor the

brother's son of the exclusive owner would have any

right to claim eviction after their rights were

separated by the Will executed by Bhavani Shankar

on 21st July, 1989.

6. Ms. Shobha submitted that the powers of the

Appellate Court were sufficiently wide to allow the

introduction of additional evidence if the Courts

below had wrongly declined to admit the evidence or

if the parties seeking to bring the documents on

record failed to produce the same despite due

diligence, or if the Appellate Court thought it

appropriate to have the said document on record for

a proper adjudication of the lis. Ms. Shobha urged

that the High Court had failed to gauge the 7

importance of bringing on record the certified copy

of the Will by way of additional evidence and had

erred in disallowing the petitioners' prayer for

amendment of the written statement on the basis

thereof, as it went to the very root of the

petitioners' case that Subhash Paliwal had no right

to maintain the suit jointly with Gopal Paliwal for

eviction of the petitioners from the suit shop room

for the bonafide need of the nephew of the

exclusive owner.

7. Ms. Shobha submitted that as was held by this

Court in Dondapati Narayana Reddy vs. Duggireddy

Venkatanarayana Reddy [(2001) 8 SCC 115], amendment

of pleadings should be liberally allowed, unless it

is established that the result would cause such

injustice and prejudice against the opposite side

as could not be compensated by costs or as would

deprive him of a right accrued due to lapse of

time. Reference was also made to a decision of 8

this Court in Prem Bakshi and others vs. Dharam Dev

and others [(2002) 2 SCC 2] in the context of an

application for amendment filed under Order VI Rule

17 CPC, wherein it was observed that it was almost

inconceivable how mere amendments of pleadings

could possibly cause failure of justice or

irreparable injury to any party. It was observed

that such amendments only serve advance notice to

the other side as to the plea which a party might

take up. Accordingly, a situation could not be

envisaged where amendment of pleadings, whatever be

the nature of such amendment, would even remotely

cause failure of justice or irreparable loss to any

party. Reference was also made to the decision of

this Court in Rajesh Kumar Aggarwal vs. K.K. Modi

[(2006) 4 SCC 385], wherein the approach to be

taken by the Courts in considering whether to

permit amendment fell for consideration and it was

held that the Courts should allow all amendments

that may be necessary for determining the real 9

question in controversy between the parties,

provided it did not cause injustice or prejudice to

the other side. It was observed that the real

controversy test is the basic or cardinal test and

it is the primary duty of the Court to decide

whether such an amendment is necessary to decide

the real dispute between the parties. Similar

views were also expressed in Andhra Bank vs. ABN

Amro Bank N.V. [(2007) 6 SCC 167].

8. Ms. Shobha urged that although the Will in

question may have been within the knowledge of the

petitioners, without obtaining a certified copy

thereof, it was not possible to include the same in

the pleadings while filing the written statement,

particularly when the application filed by the

petitioners under Order XI Rules 12 and 14 for

discovery of the said document had been rejected by

the Trial Court.

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9. It was further submitted that the High Court

should have appreciated the fact that there was no

bar to the Appellate Court permitting amendment of

pleadings to enable a party to raise a new plea, as

was held by this Court in Pandit Ishwardas vs.

State of M.P. [(1979) 4 SCC 163]. In fact, this

Court observed that all that was necessary was that

the Appellate Court should observe the well-known

principles subject to which amendments of pleadings

are usually granted. Naturally, one of the

circumstances which would be taken into

consideration before an amendment was granted is

the delay in making the application seeking such

amendment and, if made at the appellate stage, the

reason why it was not sought in the Trial Court. Ms. Shobha also referred to the decision of this

Court in Harcharan vs. State of Haryana [(1982) 3

SCC 408], where it was observed that amendment of

pleadings relating to the main controversy should

not be refused on mere technical grounds. 11

10. Ms. Shobha then contended that the appeal in

the High Court was not maintainable under Order 43

Rule 1 CPC against an order passed either under

Order 6 Rule 17 or Order 41 Rule 27 CPC.

11. Ms. Shobha concluded on the note that since by

virtue of the Will executed by Bhavani Shankar,

neither Subhash Paliwal nor his son had any

ownership rights over the disputed shop room, the

suit for eviction filed by Subhash Paliwal for the

bonafide need of his son was not maintainable being

hit by Section 13(1)(h)(i) of the 1950 Act. She

urged that the High Court had exercised its

jurisdiction erroneously in interfering with the

order of the Appellate Court.

12. Appearing for the Respondents, Mr. S.K.

Keshote, learned Senior Advocate, contended that

the submissions made on behalf of the Petitioners

was misconceived, since even in their written

statement filed on 8th December, 1998, no reference 12

had been made to the Will and the Petitioners

admitted the Respondents to be their landlords and

had also contended that the rents for the suit

premises were being paid to them. Mr. Kishote

submitted that the suit was ultimately decreed by

the Trial Court in favour of the Respondents on 3rd

August, 2000, and an appeal was filed by the

Petitioners herein against the said judgment and

decree on 28th August, 2000. Thereafter, it was

only on 3rd September, 2002, that an application was

made for amendment of the written statement to

incorporate the plea regarding the Will. By its

order dated 13th November, 2002, the First Appellate

Court dismissed the said application on the ground

that though the fact regarding the execution of the

Will was within the knowledge of the Petitioners

even at the time of filing of the written

statement, no such plea had been taken till the

suit was decreed or even in the Appeal when the

same was filed.

13

13. Mr. Keshote submitted that no interference was,

therefore, called for with the findings of the

First Appellate Court regarding the lapse on the

part of the Petitioners herein to amend the written

statement during the trial of the Suit.

14. On the question of maintainability of the

Appeal before the High Court in view of the

provisions of Order XLIII Rule 1 of the Code of

Civil Procedure, Mr. Keshote submitted that under

the amended provisions of clause (u) of Rule 1 of

Order XLIII, which was brought into effect from 1st

February, 1977, an Appeal against an order of

remand under Rule 23-A of Order XLI CPC, is

maintainable. For the sake of reference, the

provisions of Order XLIII Rule 1(u) CPC are

extracted hereinbelow :-

"Order XLIII Rule 1 Appeal from orders - An appeal shall lie from the following orders under the provisions of Section 104, viz. :-

14 (a) to (t) ..........................................................................................

(u) an order under Rule 23 or Rule 23-A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

(w) ..............................................................................................................."

15. Mr. Keshote then submitted that having admitted

the relationship of landlord and tenant in their

written statement, the Petitioners could not resile

from their admissions and that too at the appellate

stage. It was submitted that the application for

amendment was not bonafide and had been correctly

dismissed by the High Court. Mr. Keshote urged

that once the prayer made by the Petitioners to get

the certified copy of the Will on record before the

Trial Court under the provisions of Order XI Rules

12 and 14 C.P.C. was rejected on 22nd July, 1998,

the question of an application under Order XLI Rule

27 CPC for the same purpose, did not arise. 15

16. We have carefully considered the submissions

made on behalf of the respective parties and in

view of the introduction of Rule 23-A in Order

XLIII Rule 1(u) CPC, it can no longer be argued, as

has been done by Ms. Shobha, that the Appeal was

not maintainable. We are, therefore, satisfied

that the Appeals before the High Court were

maintainable and had been rightly entertained by

the High Court.

17. As far as Ms. Shobha's second submission

regarding the bonafide requirements of the son of

Respondent No.1, Subhash Paliwal, is concerned, we

are unable to accept the same in view of the

Petitioners' own admission in their written

statement that Subhash Paliwal and Gopal Paliwal

were their landlords in respect of the suit shop

room and that they had been paying rents to them

till the filing of the suit. In fact, the 16

Petitioners would stand estopped from taking such

objection under Section 116 of the Evidence Act.

18. It is no doubt true, as has been submitted by

Ms. Shobha, that the power to allow amendment of

pleadings is very wide and is to be applied

liberally. However, in the context of the instant

case, such an argument would not be available to

the Petitioners since, as found by the Courts

below, they were fully aware of the Will in

question, but had not even mentioned the same in

their written statement and had only made an

application under Order XI Rules 12 and 14 CPC for

a direction upon the Respondents to produce the

same, which prayer had been rejected. It is only

at the first appellate stage, and, that too, about

two years after the Appeal had been filed, that the

two applications were made under Order XLI Rule 27

and Order VI Rule 17 CPC for amendment of the

plaint and for bringing on record the certified 17

copy of the Will. By virtue of the said two

applications, the Petitioners attempted to

introduce a new story by way of defence in order to

prolong the disposal of the appeal.

19. In such circumstances, we are of the view that

notwithstanding the new case attempted to be made

out by the Petitioners, the same is of little

consequence in view of their admission that the

Respondents, Subhash Paliwal and Gopal Paliwal,

were their landlords and that they were paying

rents for the suit shop room to them.

20. The various decisions cited by Ms. Shobha quite

unequivocally lay down the law relating to

amendment of pleadings, but they cannot be applied

to the facts of this case in view of the admissions

made on behalf of the petitioners that they had

been paying the rents for the suit shop room to the

respondents.

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21. In view of such admission, little remains to be

considered in the present proceedings,

notwithstanding Ms. Shobha's submission regarding

the definition of "landlord" in Section 3(iii) of

the 1950 Act in support of her submission that

Subhash Paliwal did not fall within the description

of "landlord" in the Act. The Special Leave

Petition is, accordingly, dismissed.

22. There will, however, be no order as to costs.

................................................J. (ALTAMAS KABIR)

................................................J. (MARKANDEY KATJU) New Delhi Dated: December 15, 2009.