Bhanwar Lal and Others vs Saraswati

Arun Bhansali, J—This second appeal under Section 100 CPC is directed against judgment and decree dated 25.09.2012 passed by Additional Civil Judge (Junior Division), Jodhpur Metropolitan, Jodhpur and appellate judgment and decree dated 08.05.2015 passed by Additional District Judge No. 6, Jodhpur Metropolitan, whereby, the suit filed by the respondent-landlord has been decreed and the appeal filed by the appellants-tenants has been dismissed, respectively.

The plaintiff-landlord filed a suit on 07.12.2002 for eviction from the property situated at Fort Road, Nagori Gate, Jodhpur on the grounds of default and bona fide requirement of the premises for the landlord and her son Arvind; it was, inter alia, indicated that the defendants have failed to tender the due rent since January, 1995 and, therefore, they have committed default in payment of rent; it was averred that the plaintiff was working as Teacher with Rajkiya Mohta Balika Ucha Madhyamik Vidhyalay, Rajgarh, her husband has retired and she was to retire within three years, her permanent residence is at Jodhpur, her son was working at Jodhpur in the name of Shri Dayal Network, doing work of sale and repair of computers and its parts; on account of own premises being occupied, the son is working from premises near public park on rent; the premises are required by her reasonably and bona fidely, in case the premises are not vacated she would suffer comparatively more hardship; ultimately, it was prayed that the vacant possession of the premises be got delivered to the plaintiff and mesne profit to the tune of Rs. 3,000/- per month be also decreed.

The defendants-tenants filed their written statement and the averments contained in the plaint were denied; it was claimed that the due amount of rent has been deposited under the provisions of Section 19A of the Rajasthan Premises (Control and Rent and Eviction) Act, 1950 upto December, 2003; it was claimed that the plaintiff was serving at Rajgarh and her permanent resident was at Rajgarh; no document regarding Dayal Network has been produced nor document pertaining to premises being on rent near public park has been produced; plaintiff''s son had started business in the name of Arise Computer and Traders, she does not require premises reasonably and bona fidely; the defendants would suffer comparatively more hardship and their business would be ruined; the premises were neither required by the plaintiff for her residence nor her son has experience of Computer job; the prayer for mesne profit was also disputed.

Based on the pleadings of the parties, the trial court framed nine issues; on behalf of the plaintiff - two witnesses PW-1 plaintiff herself and PW-2 Yudhisthar Gaur were examined; despite grant of sufficient opportunities, the defendants did not produce any evidence and the same was ultimately closed on 16.05.2007.

After hearing the parties, the trial court came to the conclusion that the plaintiff was landlord of the premises and was entitled to receive the rent from the defendants, the defendants have committed default in payment of rent; the premises were required by the plaintiff reasonably and bona fidely for her own requirement and that of her son Arvind; the plaintiff would comparatively suffer more hardship if the premises were not vacated; the plaintiff has failed to prove change of use, for which the premises were let out; partial eviction would not fulfill the requirements of the plaintiff; the issue relating to nuisance was not pressed; the defendants were not entitled to special costs and based on the findings on various issues, the trial court decreed the suit filed by the plaintiff by its judgment and decree dated 25.09.2012.

During the pendency of the suit, the trial court closed the evidence of the defendants by its order dated 16.05.2007, as noticed hereinbefore, against which, the defendants filed S.B. Civil Writ Petition No. 4781/2007; in the writ petition, by order dated 10.08.2007 it was directed that if the defendants pay a cost of Rs. 3,000/-, learned trial court shall record the evidence of all the witnesses on that day; it was further ordered that in case the defendants fail to bring their witnesses on the date so fixed or fail to pay or deposit the cost, the writ petition will automatically stand dismissed and the impugned order closing the evidence shall revive.

Despite the order dated 10.08.2007, no witness was produced by the defendants and, consequently, the order dated 16.05.2007 was revived.

It may also be noticed that during the pendency of the suit, the defendants had filed an application dated 11.07.2007 under Order VII, Rule 14 CPC when the suit was fixed for defendants'' evidence seeking to produce documents allegedly pertaining to the fact that the plaintiff had settled at Rajgarh and had got Societies registered in the name of Smt. Rama Devi New English Sikshan Sansthan and Smt. Rama Devi Mahila Sikshan Prasikshan Mahavidhyalaya.

The application was rejected by the trial court by its order dated 14.07.2008, against which, appellants filed S.B. Civil Writ Petition No. 6042/2008, which was also rejected on 19.09.2008.

Feeling aggrieved by the judgment and decree dated 25.09.2012 passed by the trial court, the appellants-tenants filed first appeal under Section 96 CPC before the District Court.

During the pendency of the first appeal, the appellants filed application under Order VI, Rule 17 CPC seeking amendment in the written statement, which application was rejected by the trial court on 17.01.2014, regarding which, the appellants filed application under Section 151 CPC seeking recall of the order dated 17.01.2014, which application was also rejected on 04.02.2014; whereafter, again an application under Order VI, Rule 17 CPC seeking amendment in the written statement was filed, which application was also rejected by the first appellate court on 09.04.2014.

Feeling aggrieved, the appellants filed S.B. Civil Writ Petition No. 3545/2014.

The writ petition was dismissed by this Court on 23.05.2014 imposing cost of Rs. 20,000/- on the petitioners-appellants.

Against the order dated 23.05.2014, the appellants filed D.B. Civil Special Appeal (W) No. 987/2014.

In the special appeal, on 18.03.2015 the appellants prayed for withdrawal of the writ petition with liberty to agitate their cause in the event an adverse order is passed by the first appellate court and accordingly the writ petition was ordered to be dismissed as withdrawn with liberty to the appellants-petitioners to agitate all the issues before the competent forum if first appellate court passes any judgment and order adverse to the petitioners-appellants and, consequently, the special appeal was dismissed.

Whereafter, the appellants filed application under Order XLI, Rule 27 CPC seeking to produce on record further documents.

After hearing the parties, the first appellate court vide its judgment and decree dated 08.05.2015 upheld the decree passed by the trial court and dismissed the appeal.

It is submitted by learned counsel for the appellants that both the courts below fell in error in coming to the conclusion that there was reasonable and bona fide requirement of the premises for the plaintiff and that merely because the defendants did not lead any evidence cannot lead to a decree in favour of the plaintiff; it was submitted that there was sufficient material on record for the trial court and the first appellate court to come to a conclusion that the requirement of the plaintiff was neither reasonable nor bona fide.

Learned counsel for the appellants further submitted that the first appellate court committed serious error in dismissing the application seeking amendment in the written statement as while deciding the application the first appellate court went into the merit of the allegations made; it was further submitted that the proviso to Order VI, Rule 17 CPC was wrongly invoked, inasmuch as, the plaintiff and her son got involved into the activities which were sought to be brought on record by way of amendment after the trial had commenced and, therefore, the proviso had no application.

It was vehemently submitted that in the circumstances of the case, the courts below should have exercised powers under Section 30 CPC, inasmuch as, the two amendment applications were not responded to by the plaintiff and, therefore, the courts instead of dismissing the applications should have called upon the plaintiff to come clean on the averments made in the applications and should not have dismissed the applications on mere technicality and, on the other hand, should have dismissed the suit for non-discloser of material facts which go to the root of the matter.

It was vehemently contended that the requirement of the plaintiff is required to be seen not only on the date of filing of the proceedings seeking eviction but should continue till the final eviction take place and the first appellate court committed error in coming to a contrary conclusion; further submissions were made that the preposition that landlord is the best judge of his requirement is contrary to the settled legal position and, therefore, also the order passed by the first appellate court cannot be sustained.

Reliance was placed on judgment of Hon''ble Supreme Court and this Court in M.M. Quasim Vs. Manohar Lal Sharma and others, AIR 1981 SC 1113 : (1981) 1 SCALE 747 : (1981) 3 SCC 36 : (1981) 3 SCR 367 : (1981) 13 UJ 396 , Ansuyaben Kantilal Bhatt Vs. Rashiklal Manilal Shah and Another, AIR 1997 SC 2510 : (1997) 4 JT 747 : (1997) 3 SCALE 670 : (1997) 3 SCALE 170 : (1997) 5 SCC 457 : (1997) 3 SCR 784 : (1997) 1 UJ 816 : (1997) AIRSCW 2452 : (1997) 4 Supreme 284 , B.K.N. Narayana Pillai Vs. P. Pillai and Another, AIR 2000 SC 614 : (2000) 1 CTC 163 : (1999) 10 JT 61 : (2000) 125 PLR 547 : (1999) 7 SCALE 463 : (2000) 1 SCC 712 : (1999) 5 SCR 271 Supp : (2000) 1 UJ 209 : (2000) AIRSCW 43 : (1999) 10 Supreme 229 , Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, AIR 2006 SC 1647 : (2006) 3 JT 607 : (2006) 3 SCALE 312 : (2006) 4 SCC 385 : (2006) AIRSCW 1538 : (2006) 3 Supreme 507 , Murlidhar v. Nandkishore & Ors. : 2006 (3) WLC (Raj.) 264 , LRs of Abdulla v. Priyambda Sharma 2013 (2) WLC (Raj.) 175 , Rakesh Gupta v. Ahmed Farooq : 1992 (2) RLW 398 , Sri Kempaiah Vs. Lingaiah and Others, (2001) 9 JT 332 : (2001) 7 SCALE 567 : (2001) 8 SCC 718 and Maria Margarida Sequeria Fernandes and Others Vs. Erasmo Jack de Sequeria (Dead) through L. Rs., AIR 2012 SC 1727 : (2012) 3 SCALE 550 : (2012) 5 SCC 370 : (2012) AIRSCW 2162 : (2012) 2 Supreme 602 .

Vehemently opposing the submissions made by learned counsel for the appellants, learned counsel for the respondent-plaintiff submitted that the appeal and the submissions made by learned counsel for the appellants have no substance and the same deserves to be dismissed; it was submitted that the appellants in their written statement filed in the year 2003 had indicated that the plaintiff alongwith her family members was a permanent resident of Rajgarh (Churu), however, despite the fact that the suit was prolonged by the appellants for over ten years, no evidence was produced in this regard, in fact when evidence was closed by the trial court, the appellants despite taking order from the High Court chose not to produce any evidence and, therefore, the appellants cannot be heard on the said aspect; it was submitted that filing of the application under Order VI, Rule 17 CPC in the appellate court was in fact nothing but an abuse of process of the Court and the first appellate court was justified in dismissing the application, which dismissal was upheld by dismissal of appellants'' writ petition though in further appeal the appellants chose to withdraw the writ petition itself, however, the effect of the order passed by the learned Single Judge is not wiped off; it was reiterated that the plaintiff by leading cogent evidence has proved her bona fide requirements for the premises which has been upheld by the first appellate court and the findings in this regard being factual and concurrent do not call for any interference and, therefore, the appeal deserves to be dismissed.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record alongwith record of both the courts below.

The suit was filed by the plaintiff seeking eviction on the ground of default in payment of rent and reasonable and bona fide requirement of the premises for her residence and that of business of her son Arvind in the year 2002; the plaintiff claimed that her husband had already retired and she though was serving at Rajgarh, would be retiring in another three years and, therefore, would require the premises for her personal use post retirement; it was also claimed that her son was doing business from a rented premises at Jodhpur and, therefore, the premises were also required for his business. The plea was opposed by the appellants-defendants, inter alia, claiming that the plaintiff was not in requirement of the premises as she was serving at Rajgarh and was settled with her family at Rajgarh as her children were still studying; the trial court based on the averments framed issues, evidence was led by the plaintiff and when the turn of the defendants to lead evidence came, after grant of sufficient opportunities on account of non-production of evidence, the same was closed by the trial court; the appellants challenged the order before High Court, which gave one more opportunity to the appellants to produce evidence, which was not availed and, consequently, the writ petition stood dismissed.

In the meanwhile, the appellants filed an application under Order VII, Rule 14 CPC in the year 2007 seeking to produce certain documents, which allegedly indicated that the plaintiff has started certain activity at Rajgarh so as to claim that the plaintiff''s requirement has since eclipsed. The application was dismissed by the trial court, against which, a writ petition was filed, which also came to be dismissed by the High Court; ultimately, the trial court decreed the suit filed by the plaintiff after analyzing the evidence available on record and coming to the conclusion that there was a reasonable and bona fide requirement of the premises by the plaintiff.

The appellants filed first appeal and during pendency of the first appeal an application under Order VI, Rule 17 CPC was filed on 24.10.2013 alleging that the plaintiff and her son alongwith his family has permanently settled at Rajgarh; the application was dismissed by the first appellate court by its order dated 17.01.2014, which order though was not challenged, an application under Section 151 CPC was filed seeking recall of the order, which application was rejected by the first appellate court on 04.02.2014, which order was also not challenged; whereafter, another application under Order VI, Rule 17 CPC was filed on 13.03.2014 again seeking to incorporate the same averments, which were sought to be included by the earlier application, the application was again rejected by the first appellate court by its order dated 09.04.2014, against which, a writ petition was filed, which was rejected and in a special appeal filed before the Division Bench, the writ petition itself was permitted to be withdrawn.

The counsel for the appellants vehemently submitted that the rejection of the amendment application by the first appellate court was incorrect and in fact the same should have been accepted and the said aspect gives rise to a substantial question of law in the present second appeal.

As noticed hereinbefore, the appellants were well aware of the documents, which were made the foundation for seeking amendment before the first appellate court, way back in the year 2007, when the application under Order VII, Rule 14 CPC was filed for bringing on record the said documents, which application was rejected; thereafter for over seven years, the appellants chose not to take any steps for incorporating the said aspect by way of pleadings and only before the first appellate court the application under Order VI, Rule 17 CPC was filed.

It is submitted that the appellants were not properly advised at the relevant time and, as such, they cannot be punished for the said reason; the plea as raised for the callous and inordinate delay in seeking the amendment after a passage of over seven years on account of non-grant of proper advise at the relevant time if is taken as a valid ground, then in that case in each and every case where a party fails to comply with the requirement of proviso to Order VI, Rule 17 CPC, on a casual plea of lack of proper advise in time, the proviso would be rendered meaningless/otiose.

A bare look at the record of the trial court reveals that every conceivable provision of CPC was employed by the appellants-defendants seeking to delay the proceedings, inasmuch as, despite closure of the evidence of the defendants in the year 2007, it took five years for the trial court to decide the suit as repeated applications under various provisions were filed on behalf of the appellants, in view of the fact that the appellants were being advised to file applications after applications seeking to delay the decision of the suit by the trial court, it cannot be accepted that they were not properly advised. Further, once the application under Order VI, Rule 17 CPC was dismissed by order dated 17.01.2014, another application after failing to get the order dated 17.01.2014 recalled was filed, as to how after dismissal of one application another application based on similar grounds was maintainable, learned counsel for the appellants failed to clarify as it is well settled that principles of res judicata apply between different stages of the same suit also.

In view of the above circumstances, it cannot be said that the first appellate court was not justified in dismissing the application seeking amendment in the pleadings as the application was delayed and the explanation sought to be advanced is a lame excuse and cannot be countenanced.

So far as the judgments cited by learned counsel for the appellants regarding grand of application under Order VI, Rule 17 CPC at any stage of the proceedings are concerned, all the judgments cited pertained to pre-amendment era.

In view of proviso to Order VI, Rule 17 CPC introduced w.e.f. 01.07.2000, the said judgments have apparently no application as post amendment the applicants are bound to disclose in an application under Order VI, Rule 17 CPC that despite due diligence the application for the proposed amendment could not be made earlier.

The submission made by learned counsel for the appellants that after the trial had commenced, the proviso would have no application, is equally baseless, inasmuch as, even if a fact comes to the notice of the party after the trial has commenced, the requirement of due diligence cannot be given a go bye. In view of the fact that appellants chose to file application after about seven years of producing the documents, the rejection of the application under Order VI, Rule 17 CPC by the first appellate court cannot be faulted.

So far as the submissions made by learned counsel for the appellants regarding the fact that the plaintiff has failed to prove reasonable and bona fide requirement of the premises are concerned, both the courts below have concurrently found that the premises were reasonably and bona fidely required by the plaintiff and the finding in this regard being a finding of fact does not give rise to any substantial question of law as even otherwise the counsel for the appellants has failed to point out any aspect which would vitiate the concurrent findings as recorded by the two courts below.

The submissions made by learned counsel for the appellants regarding eclipse of the requirement of the plaintiff are equally baseless, the appellants failed to lead any evidence with regard to the facts sought to be argued before this Court, the attempts made by the appellants by way of applications under Order VII, Rule 14 and Order VI, Rule 17 CPC have already failed on account of appellants'' own conduct. Further the conduct of the appellants is also apparent from the circumstances that despite rejection of application under Order VII, Rule 14 CPC, the appellants chose to file the same documents alongwith some more documents by way of an application under Order XLI, Rule 27 CPC before the first appellate court with the plea that the documents were not in knowledge of the appellants; the first appellate court has rightly rejected the prayer under Order XLI, Rule 27 CPC as the application under Order VII, Rule 14 CPC had already been rejected by the trial court and the order had been upheld by the High Court, the conduct of the appellants in seeking to raise plea by way of an application under Order XLI, Rule 27 CPC without disclosing the dismissal of application under Order VII, Rule 17 CPC, clearly reflects the mind set and the manner in which the entire suit as well as appeal were prosecuted by the appellants, which conduct cannot be said to be bona fide.

The plea raised by the appellants regarding the continuation of the bona fide requirement till the suit and/or the appeal is decided has apparently no application to the facts of the present case as there is no legally admissible evidence on record regarding the plaintiff having settled at Rajgarh except of course the failed attempts on the part of the appellants to allege the said facts by way of applications under Order VII, Rule 14 CPC and Order VI, Rule 17 CPC.

So far as the attempts and the submissions made by learned counsel for the appellants regarding invoking the provisions of Section 30 CPC are concerned, the provisions of Section 30 CPC are not meant to be invoked independently and de hors the provisions and requirements of Order XI, XIII and XVI CPC, which deal with discovery and inspection, production, impounding and return of documents and summoning and attendance of witnesses, respectively. Unless the prerequisites as indicated under various Rules of respective Orders are fulfilled, the provisions of Section 30 cannot be invoked as an standalone provision.

The allegations regarding the plaint being founded on false averments are too convenient to make but are utterly baseless after the appellants having failed to lead any evidence and two courts below having concurrently found the plea raised by the plaintiff as proved based on the evidence available on record.

The various judgments cited by learned counsel for the appellants, which essentially pertain to the eclipse of the requirement and the bona fide requirement to be continued till the execution of the decree have no application to the facts of the present case in absence of any admissible evidence available on record in this regard.

In view of the above discussion, the present second appeal does not give rise to any substantial question of law and has no substance. Consequently, the same is dismissed.