Siraj Ahmad vs Satish George

Dhirendra Mishra, J.—The Appellant/Defendant has preferred this second appeal against the impugned judgment and decree dated 19-7-1994 passed by Additional District Judge Bilaspur in Civil Appeal No. 111-A/1993 affirming the judgment and decree dated 8-1-1990 passed by Civil Judge class II Bilaspur in Civil Suit No. 270-A/ 1982 decreeing the suit preferred by the Respondent/Plaintiff.

The undisputed facts of the case are that the original Plaintiff Satish George who died during the pendency of this second appeal was the owner of the suit house and he had filed a suit for eviction on the ground that Appellant/Defendant was his tenant and he required the suit accommodation for the purpose of her grown up sons and daughters as there was no collegiate education facility at his place of posting at Chachai District Shahdol and that he did not have any alternative suitable accommodation in the city of Bilaspur. During the pendency of the civil suit the Plaintiff/Respondent retired from service, he thereafter amended the suit incorporating the ground of his personal bona fide requirement. The Appellant/ Defendant disputed the contention of the Respondent/Plaintiff and denied his plea of bona fide requirement submitting that the suit was filed with an ulterior motive of enhancing the rent. The suit was decreed by the trial Court. The Appellant/ Defendant preferred an appeal against the judgment and decree of the trial Court and during the pendency of the appeal three applications for amendment in the written statement were filed by him on 11-1-1993, 10-7-1993 and 25-3-1994 respectively. Application filed on 25-3-1994 was partly allowed by the appellate Court vide order dated 31-3-1994. However, the other two applications for amendment in the written statement were rejected while passing the final judgment in the appeal on the ground that the same had been preferred belatedly and there was no explanation for the same.

This second appeal has been admitted on the following substantial questions of law:

(1) Whether the first appellate Court was justified in rejecting the applications dated 11-1-1993 and 10-7-1994 by which subsequent events were sought to be brought on record on the ground that the applicants were unnecessarily delayed, when the Court below has allowed the application dated 25-3-1994 ?

(2) Whether under the facts and in the circumstances of the case, was the first appellate Court justified in holding that on face of the evidence on record, the Respondent - Plaintiff''s bona fide need is proved ?

During the pendency of this appeal the original Plaintiff died and the names of the legal heirs have been substituted by order dated 30-7-2004. The Appellant filed an application for amendment in the written statement i.e. IA No. 7500/2002 which is supported by an affidavit. He has also filed the documents as per list. The above application is also being disposed of along with this appeal.

Learned Counsel for the Appellant submits that initially the suit was filed for bona fide requirement of the grown up sons and daughters of the Plaintiff as also for the personal need of the Plaintiff as well who retired from service on 1-10-1987 i.e. during the pendency of the suit which was decreed on the ground as above. During the very pendency of the appeal two applications dated 11-1-1993 and 10-7-1993 were filed for amendment in the written statement. For the purpose of application dated 11-1-1993 the Defendant took the defence that during the pendency of the proceedings one daughter of the Plaintiff had already married and his wife had been employed as teacher and she had been allotted a quarter by M.P. Electricity Board and that the Plaintiff had got the possession of a vacant accommodation in the city of Bilaspur from his tenant. For the purpose of another application dated 11-7-1993, the Defendant took a defence that daughters of the Plaintiff were not residing with the Plaintiff as they had been married and that the Plaintiff had a transport business whose buses are playing in Jabalpur Road and thus he did not intend to go back to Bilaspur. However, both the applications were rejected on the ground that they had been belatedly filed even though the subsequent application was allowed by the First Appellate Court and the parties were permitted to lead evidence. The Court below has committed an illegality by not allowing the application to amend the written statement which was based on subsequent events. He further submits that the Plaintiff has already died and his legal heirs are residing permanently in their respective houses. From the address given by the Plaintiffs themselves in the memo of appeal it would be clear that the bona fide need of the Plaintiff shown earlier is now eclipsed by the subsequent events.

Learned Counsel for the Appellant submits that during the pendency of the appeal the Appellant has entered into an agreement of sale of the suit accommodation on 3-6-1996 and he also executed three sale deeds after dividing the open land adjacent to the suit house into 30 separate plots. Thus the amendment sought being based on subsequent agreement to sale executed by the Plaintiff belies his claim of bona fide need and this subsequent event has a definite bearing for deciding this second appeal. Learned Counsel for the Appellant relies on the decision of Supreme Court in the matter of Manovikas Kendra Rehabilitation and Research Institute v. Prem Prakash Lodha (2005) 7 SCC 224 , in the matter of Pratap Rai Tanwani and Another Vs. Uttam Chand and Another, , in the matter of M.M. Quasim Vs. Manohar Lal Sharma and others, and in the matter of Pasupuleti Venkateswarlu Vs. The Motor and General Traders, .

On the other hand learned Counsel for the Respondent/Plaintiff supporting the impugned judgment submits that the suit was filed on 15-6-1982 and the same was decreed in the year 1990. Thereafter first appeal was preferred by Appellant/ Defendant which was also dismissed in the year 1994 and as such the eviction proceedings instituted by the Plaintiffs are pending for last 23 years. So far as the submission of the counsel for the Appellant that the application for amendment has been wrongly rejected is concerned, it is submitted that during the pendency of the proceedings just because daughters for whose bona fide need the suit accommodation was sought and eviction proceedings were initiated cannot be defeated simply because with lapse of time they got married. Even otherwise, it is the choice of the Plaintiff and his dependants to reside in their house after marriage and it is not open to the Defendant to question the same. During the pendency of first appeal the Plaintiff as also his wife bona fidely needed the suit accommodation and therefore subsequent grounds raised by the Respondent/Plaintiff had no bearing whatsoever in the decision of the appeal and no prejudice was caused to the Defendant by rejection of the amendment applications. As far as availability or alternative accommodation to the Plaintiff after passing of the decree and during the pendency of the first appeal is concerned, the appellate Court after recording the evidence of both the parties has negatived the contention of the Defendant that any alternative accommodation became available to the Plaintiff after passing of the decree by the trial Court. Opposing the application IA No. 7500/2002 for amendment in the written statement learned Counsel for the Respondent/Plaintiff submits that so far as copies of sale deed annexed with the application are concerned, from a bare reading of the same it would be clear that it pertains to a land situated in village Nirala Nagar whereas the suit accommodation is situated at Link Road as is evident from the plaint and therefore, there is no co-relation in the two. So far as the agreement to sale dated 3-6-1996 is concerned, the agreement has not been given effect to even after 9 years of it execution and in fact the same has been cancelled and in the absence of any document that in pursuance of the said agreement the suit accommodation has been sold by the Appellant, decree cannot be set aside on that ground.

I have heard learned Counsel for the parties.

First of all it has to be considered as to what is the effect of death of the Plaintiff who had filed suit for bona fide need of the suit accommodation and who died during the pendency of the suit itself. This question has to be examined in the light of the decision of the Supreme Court in the matter of Manovikas Kendra (supra). It is not disputed that the widow as also three daughters and son of the deceased have been substituted in place of the original Plaintiff in the appeal and therefore if the family members of the land lord can establish their necessity of the suit accommodation then the death of the original land lord shall have no effect upon the outcome of the suit. Learned Counsel for the Appellant relying upon the judgment of the Apex Court in the matter of Pratap Rai Tanwani (supra) has vehemently argued that the appellate Court is required to examine, evaluate and adjudicate on the subsequent events and their effect. However, learned trial Court without taking into consideration the subsequent events which were brought to the notice by the two applications has arbitrarily rejected the same on the ground of delay. There is no doubt that the appellate Court is required to examine, evaluate and adjudicate on the subsequent events and their effect for the relief to be moulded, however, the occurrence of the "subsequent events" alleged for relief must not fall within the realm of possibility or probability but must be a certainty, and if the bona fide need had been established earlier, such a certainty of the occurrence of subsequent events is necessary to be established to show that the said established bona fide need has been eclipsed.

When we examine the facts of this case in the light of law laid down by the Supreme Court in the above cited case, we find that by the subsequent events such as marriage of the daughter, the bona fide need of the Plaintiff is not eclipsed as such. In this Case the Plaintiff required the suit accommodation for his own need and therefore, I am of the opinion that by not considering the two amendment applications during the pendency of first appeal no prejudice was caused to the Defendants as the decree passed by the trial Court could not be interfered with solely on that ground.

Applying the same yardstick the amendment application preferred by the Appellant before this Court has to be considered. So far as the agreement of sale dated 3-6-1996 entered into by the Plaintiff is concerned even after nine years of its execution and after the death of the Plaintiff who had entered into agreement, there is no evidence collected by the Plaintiff to show that the agreement in question has been implemented and copies of three sale deeds filed by the Appellant, it cannot be said that the lands sold by the above said deed are the lands appurtenant to the suit house and therefore, I am of the opinion that the amendment sought by the Defendant by the above applications is no subsequent event which may effect the bona fide need of the Plaintiff. It is unfortunate that suit for eviction is pending since 1982 i.e. for last 23 years and during this long period the wards of the Plaintiff for whose bona fide necessity of education the vacant possession was sought have already grown up and married and the Plaintiff himself has died during the pendency of the this appeal. However, widow of the Plaintiff/Respondent No. 1 is still alive and thus the bona fide necessity of the widow still exists.

So far as the ratio of law laid down in the decision of the Supreme Court in the matters of M.M. Kasim (supra) as also in the matter of Pasupuleti Venkateswarlu (supra), is concerned in the said judgments it is enunciated that the subsequent events can be taken into consideration and relief may be moulded and thus the death of the Plaintiff of marriage of the daughter of the Plaintiff is not such a subsequent event which may eclipse the necessity of the Plaintiff in totality particularly in the light of the fact that widow of the Plaintiff is still alive.

The facts highlighted by the Appellant as subsequent event fall within the realm of possibility or probability of non return and not a certainty as is required. Even assuming that as apprehended by the counsel for the Appellant that the land lord may obtain possession on the pretext of bona fide necessity and subsequently deviates from the purpose for which possession is recovered, the same may be recovered by the Defendant as per the provisions of Section 17 of the Chhattisgarh Accommodation Control Act.

In the light of aforesaid discussion the appeal has no force and the same is dismissed with cost.