- (1.) The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 10.01.2012 passed by the Additional District Judge (Fast Track) No.2, Beawar (District Ajmer) in Civil Regular Appeal No.1/2009 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 18.8.2006 passed by the trial Court i.e. Civil Judge (Junior Division) No.2, Beawar (District Ajmer) in Civil Suit No.199/1998 whereby the trial Court decreed the suit for eviction filed by the plaintiffrespondent.
(2.) Brief relevant facts for the disposal of this appeal may be stated as below:- (i) Originally the suit for eviction from the suit shop was filed by Shri Nathmal, elder brother of plaintiff-respondent-Shri Prakash Chandra, on 2.7.1998 in the trial Court with the averment that the tenancy commenced with effect from 1.6.1995 and the appellant is liable to be evicted on the grounds of default in payment of rent, subletting, damage caused to the suit shop and nuisance. (ii) Written statement was filed by the appellant on 1.9.1999 and grounds taken in the plaint were specifically denied. Rejoinder to the written statement was also filed by the original landlord on 11.5.2000. (iii) On 13.3.2001 an application under Order 22 Rule 10 CPC was filed by the present respondent stating therein that by virtue of a consent decree dated 7.1.1999 passed on the basis of compromise the suit shop has come in sole ownership of him and since then he has become landlord of the appellant in respect of the suit shop. It was prayed in the application that he may be substituted in place of the original landlord Shri Nathmal. Reply to the application was filed by the appellant on 2.6.2001 and the trial Court after hearing both the parties allowed the application vide order dated 28.8.2001. It is an admitted fact that the order dated 28.8.2001 was not challenged by the appellant at that stage of the proceedings. (iv) Another application under Order 6 Rule 17 CPC for amendment in the plaint was filed by the present respondent on 9.4.2001 and it was prayed that the suit shop is bonafidely and reasonably required by him for his use and occupation and the pleadings to that effect may be added in the original plaint. Reply to the application was filed by the appellant on 11.5.2001 contesting the claim made by the respondent and the trial Court after hearing both the parties allowed the application for amendment vide order dated 23.10.2002. It is an admitted fact that that order was also not challenged by the appellant at that stage of the proceedings. (v) In consequence of the orders so passed by the trial Court the present respondent filed amended plaint on 22.11.2002 and appellant also filed amended written statement on 2.1.2003 and on the basis of the pleadings necessary issues were framed by the trial Court on 21.1.2003. It is to be noted that no specific issue was framed in regard to partial eviction from the suit shop. (vi) Still another application was moved by the present respondent on 20.3.2006 under Order 14 Rule 5 CPC for framing of additional issues as mentioned in the application. Reply was not filed by the appellant to the application and that application was not separately decided by the trial Court. (vii) In the meanwhile both the parties produced oral as well as documentary evidence in support of their respective case. On 22.7.2006 none appeared on behalf of both the parties and the trial Court made an order to proceed further under Order 17 Rule 2 CPC on the ground that evidence has already been produced by the parties and the case was posted for judgment on 29.7.2006. (viii) On 29.7.2006 the judgment was not delivered but counsel for both the parties appeared on 31.7.2006 and arguments were re-heard by the trial Court and ultimately judgment and decree was passed on 18.8.2006 whereby the suit filed by the respondent was decreed. (ix) Being dissatisfied with the judgment and decree passed by the trial Court the tenant-appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide impugned judgment and decree dated 10.1.2012. (x) In the memo of appeal filed before the appellate Court although specific grounds were raised by the appellant challenging the order dated 28.8.2001 and 23.10.2002 whereby the application filed by the respondent under Order 22 Rule 10 and Order 6 Rule 17 CPC were allowed but no separate findings were given by the appellate Court either way. Still dissatisfied, the tenant-appellant is before this Court by way of this civil second appeal.
(3.) Assailing the judgments passed by the Courts below learned counsel for the appellant has raised the following grounds:- (i) Although specific grounds were taken by the appellant in the memo of appeal filed before the first appellate Court challenging the order dated 28.8.2001 by which the application under Order 22 Rule 10 CPC filed by the respondent was allowed and also the order dated 23.10.2002 by which the amendment application was allowed by the trial Court but no findings either way were given by the Court below and the non-consideration of those grounds and absence of findings on the same amount to illegality and perversity requiring interference of this Court in this second appeal. According to learned counsel for the appellant suitable substantial questions of law are required to be framed on that basis and the appeal is liable to be admitted for further hearing. (ii) Otherwise also, order dated 28.8.2001 by which the application for substitution of the respondent in place of the original landlord was allowed is illegal and perverse as it is based on a document which was inadmissible in evidence by the reason that it is un-registered and only a photostat copy of the same was filed. According to learned counsel, the case of the respondent was that in a partition suit between the respondent and his brothers compromise was filed before the Court concerned and on the basis of the compromise a decree for partition was passed by that Court on 7.1.1999 and in accordance with that decree the suit shop came into the sole ownership of the respondent. It is the contention of the counsel that the consent decree passed in the partition suit was required to be compulsorily registered under Section 17 (2) (vi) of the Indian Registration Act and in absence of the same it was inadmissible in evidence even for the purpose of substitution of the respondent in place of the original landlord. It was also essential for the respondent to produce certified copy of the consent decree dated 7.1.1999 but only a photostat copy thereof was produced before the trial Court. (iii) Order dated 23.10.2002 by which application under Order 6 Rule 17 CPC for amendment in the original plaint was allowed by the trial Court is also illegal and perverse by the reason that it is against the undertaking given by the respondent in the course of hearing of the application for substitution. According to learned counsel in the order dated 28.8.2001 there is specific mention of the fact that respondent made a specific prayer to the effect that he will not seek such amendment in the suit adverse;u effecting the cause of action but even then application for amendment in the original plaint was filed by him seeking incorporation of a new ground of eviction on the basis of bonafide and reasonable necessity and the learned trial Court without taking into consideration and rather overlooking the undertaking given by the respondent allowed the amendment. According to learned counsel by his conduct the respondent waived his right of seeking amendment in the plaint and he was estopped to seek amendment incorporating a new ground on the basis of reasonable and bonafide necessity or any other ground. (iv) Although, orders dated 28.8.2001 and 23.10.2002 passed by the trial Court were not challenged by the appellant at that stage of the proceedings by way of revision petition or writ petition but the same cannot prevent the appellant to challenge the same in appeal filed under Section 96 CPC as Section 105 CPC permits him to do so and infact the same were challenged by taking specific grounds in the memo of appeal filed before the first appellate Court. (v) The application under Order 6 Rule 17 CPC for amendment in the original plaint was filed by the respondent on 9.4.2001, a date on which he was not a party to the suit as plaintiff or otherwise as he was substituted as plaintiff in place of the original landlord only vide order dated 28.8.2001 and thereafter no further application for amendment was filed by him and, therefore, no order for amendment in the plaint could have been passed by the trial Court on the application dated 9.4.2001. According to learned counsel an order for amendment in the plaint was liable to be passed only on an application filed by the respondent after he was made party in the suit. (vi) Although, amended plaint incorporating a new ground of eviction on the basis of bonafide and reasonable necessity was filed on 22.11.2002 but the amendment related back to the date of institution of the original suit i.e. 2.7.1998 and the same being filed within the period of five years from the date of commencement of the tenancy i.e. 1.6.1995, the suit for eviction on the basis of bonafide and reasonable necessity for the suit shop was barred by Section 14 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as "the Act") but that aspect of the matter was not properly considered by the Courts below. According to learned counsel for the appellant it is well settled legal position that if amendment in plaint is allowed, the same relates back to the date on which the original suit was filed unless the Court specifically otherwise directs. In the present case no order was passed by the trial Court that the amendment will have prospective effect and in absence of the same the amendment made in the plaint related back to the date of the original suit and being within the prescribed period of five years under Section 14 (3) of the Act the suit was not maintainable on the ground of bonafide and reasonable necessity. (vii) Although, reply to the application under Order 22 Rule 10 CPC was filed by the appellant on 21.6.2001 and that reply is available on the file of the trial Court but even then in the order dated 28.8.2001 it has been mentioned that no reply to the application was filed by the appellant and the same is clear indication of the fact that the application was allowed without considering the reply and the objections taken by the appellant in the same and that also makes the order dated 28.8.2001 illegal and perverse. (viii) It is an admitted fact that issue in respect of partial eviction from the suit shop was not framed by the trial Court although an application under Order 14 Rule 5 CPC was filed by the respondent and the same remained un-decided but even then the quesiton of partial eviction was decided in favour of the respondent without there being a specific issue in that regard and that also makes the judgments passed by the Courts below illegal and perverse. (ix) All these grounds raised on behalf of the appellant make the judgments passed by the Courts below illegal and perverse requiring interference of this Court even in the second appeal and the substantial questions of law framed by the appellant in the memo of appeal or any other suitable substantial questions of law are required to be framed by the Court. Accordingly, it was prayed that the appeal may be admitted for further hearing. In support of his submissions, learned counsel for the appellant relied upon the cases of Ishar and others Vs. Sudesh Kumar and another, 1973 AIR(P&H) 392, P.Dasa Muni Reddy Vs. Appa Rao, 1974 AIR(SC) 2089, Lachoo Mal Vs. Radhey Shyam, 1971 AIR(SC) 2213, Bhoop Singh Vs. Ram Singh Major & ors., 1996 AIR(SC) 196, Provash Chandra Dalui & anr. Vs. Niswanath Banerjee & anr.,1989 AIR(SC) 1934. ;