Altamas Kabir, J. - (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 3d January, 1998, Subhash Paliwal and Gopal Paliwal filed a suit against the Petitioners for their eviction from the shop room in question on the ground of personal necessity and bona fide 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 bona fide 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 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. 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 bona fide requirement of his son. The learned Additional 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. 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 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.
(3.) 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 and Eviction) Rent Act, 1950 (hereinafter, referred to as "the 1950 Act"), under Section 13 whereof, a suit for eviction could be brought by the landlord on the ground of bona fide 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. 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 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 bona fide need of the nephew of the exclusive owner.;