- (1.) Heard learned Counsel for parties and perused the record. Respondent-landlord filed Release Application registered as P.A. Case No. 43 of 1998 seeking release of accommodation in question, which is a shop, for his personal need. Prescribed Authority found that landlord has failed to prove bona fide and genuinity of his personal need and, therefore, application was rejected. Landlord preferred Rent Control Appeal No. 8 of 2001. During the pendency of appeal, he sought an amendment in Release Application so as to add certain factual averments demonstrating that shop in question is required for settling his son in business. Initially, the amendment application, since it raises a new ground and setting up a new case, was rejected by Lower Appellate Court where against respondent-landlord came to this Court in Writ Petition No. 48751 of 2002, which was allowed and this Court directed that aforesaid amendment be allowed to be made in the Release Application and, thereafter, the matter shall proceed in accordance with law. It would be appropriate to reproduce relevant part of the judgment dated 11.5.2007, as under: "I have gone through the amendment applications as well as the order passed by the Prescribed Authority rejecting the release application and the impugned order. It is clear that the release was sought for bona fide need of his son Jitendra. By way of amendment the petitioner, wants to incorporate only certain facts which are supporting to the main case set up in the application. By way of amendment the petitioner has sought to incorporate that his son Jitendra has no source of income and he has to settle him in some business and the need of the landlord is bona fide need. I see no good ground to reject the said amendment application. It may be remembered here that technical rules or pleadings are not applicable in these proceedings. These proceedings under section 21 are decided on the basis of evidence filed by the parties. The provisions of pleadings as contained in the Code of Civil Procedure strictly speaking are not applicable. The Court below has taken a very narrow view of the matter while rejecting the amendment application. In view of the above discussion, the impugned order dated 19th of July, 2002 cannot be sustained. The writ petition is allowed. The amendment application 15 Ka filed by the petitioner in Rent Control Appeal No. 8 of 2001 stands allowed. However, the respondent tenant shall have a right to file affidavit in rebuttal within a period of one month from the date of production of certified copy of this order. The Court below may further extend time. If cause shown in sufficient, to a reasonable extent. Since the matter is old one and pending since long before the Court below, it is desirable that the Court below may hear and decide the appeal itself expeditiously within a period of one year from the date of production of the certified copy of this order."
(2.) In the result, the amendment sought was made part of Release Application. Lower Appellate Court, however, did not allow the parties to lead evidences, documentary or oral, in respect to the new case set up by respondent-landlord and instead on the basis of evidence, already on record, proceeded to decide appeal and accepting amended case of landlord about the need of his son, appeal has been allowed by means of impugned order dated 15.10.2008.
(3.) It is not unmerited to say that such an amendment, which introduced a total new case would have required fresh evidence from both the sides, in favour or against, so as to enable appropriate Court to adjudicate upon the new case set up by landlord. The Lower Appellate Court though exercised a concurrent jurisdiction with the Trial Court but when further evidence was required to be adduced by parties, it would have been appropriate for Lower Appellate Court either to remand the matter to the Trial Court in its entirety or to direct Trial Court to record evidence on the issue, newly raised at appellate stage, and thereafter forward such evidence for consideration by Lower Appellate Court. Unfortunately, Lower Appellate Court has proceeded as if evidence already adduced by parties in respect to issue, as it was initially raised by landlord, would be sufficient to consider the new case, though need of the person having changed, a new set of evidence was needed.;