- (1.) AT the reqeust of learned counsel for the parties, arguments were heard for disposal of the writ petition at the stage of admission itself.
(2.) THE petitioner (defendant) has preferred this writ petition challenging the order dated 29.2.2012 passed by Additional District Judge no.2 Alwar, whereby his application seeking amendment on the ground of subsequent event, was dismissed and his other application filed under O.41 R.27 of the Code of Civil Procedure (hereafter referred to as 'the Code') was kept pending for consideration at the time of hearing of the appeal. Briefly stated facts of the case are that respondent no.2 (plaintiff) had filed a suit for eviction against the petitioners (defendants) in respect of a shop in question, inter alia, on the ground of default and bona fide necessity. The bona fide necessity was shown for plaintiff's son Bihari Lal. The petitioners filed written statement wherein it was contended that plaintiff was having 8 shops out of which 5 shops were on rent and in remaining two shops his sons were doing business and 8th shop was available with the plaintiff (respondent no.2). Learned trial court decreed the suit of respondent no.2 vide judgment dated 17.6.2011 on the grounds of bona fide necessity and comparative hardship and the issue of partial eviction was decided in favour of the plaintiff. The petitioners (defendants) preferred appeal before the Additional District Judge No.2, Alwar, and filed two applications one under O.6 R.17 and the other under O.41 R.27 of the Code of Civil Procedure. By way of first application, they sought amendment in the pleadings on the ground that they came across a news item published on 4.5.2010 in the newspaper in respect of the shop in question with the heading " " and in the photo printed in that newspaper plaintiff's son Bihari Lal was found sitting, therefore, the plaintiff (respondent) did not have any bona fide necessity of the shop for the business of his son Bihari Lal as he had been shown sitting in that shop in the newspaper. According to him, the plaintiff had 8 shops and not seven and the description of 8th shop available with him, is already there but he has wrongly mentioned said shop to be a galary leading to his house and not a shop.
(3.) IT was submitted that this newspaper item published on 4.5.2010, was found by them now and, therefore, they be allowed to amend their pleadings. IT was further prayed that they were even ready and willing to take this so called 8th shop which plaintiff calls as a galary to go to his house. According to them, the amendment sought is necessary to determine the real controversy between the parties in a fair manner. The other application under O.41 R.27 of the Code, according to them, was kept pending with the observation that it will be decided at the time of final decision of the appeal. The petitioners' grievance is that this application should have been decided because the document sought to be produced under O.41 R.27 was a newspaper cutting, which is likely to destroy the case of plaintiff on issues with regard to bona fide necessity and comparative hardship and partial eviction. Learned counsel for the petitioners submitted that the First Appellate Court has committed a grave error in observing that since the plaintiff has stated that he had only 7 shops and not 8, and the so called 8th shop is not a shop, it is a galary in respect of which both the parties have already led their respective evidence before the trial court and that the correctness of the findings of the trial court shall be looked into while deciding the appeal and that the amendment of written-statement sought at the first appellate stage, was not on account of any subsequent event. ;