- (1.) THIS revision petition has been filed against the order dated 17. 11. 1992 passed in civil appeal No. 5/91 by the learned Additional District Judge no. 2, Jodhpur.
(2.) THE brief facts leading to this revision are that the non-petitioners -plaintiff filed a suit for eviction against the present petitioner from the suit shop situated at Jodhpur, on the ground that the shop is requirtd reasonably and bonafidely for the plaintiff's use. THE plaintiffs' suit was decreed on 30. 11. 84. THE defendant preferred an appeal before the Addl. District Judge No. 2, Jodhpur. The appellant-defendant moved an application under Order 6 Rule 17 before the Lower Appellate Court on 2. 9. 92 which was amended on 9-10-92 for amending written statement. The amendment related to the subsequent event which is alleged to have taken place during the pendency of appeal. The subsequent event to which the proposed amendment referred was that the plaintiff had during the pendency of appeal acquired vacant possession of his another shop, also situated at Station Road. The said shop was kept vacant for about one year without occupying and thereafter, it has been let out. This belies that plaintiffs' at all require the suit premises or and at any rate, the conduct of the petitioner-plaintiff shows that the reasonable and bonafide necessity, even if it existed, has ceased to exist. The plaintiffs, objected to the amendment being allowed. The appellate Court came to the conclusion that prima facie no vacant premises are available with the plaintiff-respondent and therefore it will be futile to grant permission to amend the written statement. In my opinion, the appellate court acted illegally and with material irregularity in the exercise of its jurisdiction in deciding the merits of the case while considering the application for amendment. Whether the facts, which are sought to be brought on amendment, the party seeking amendment will ultimately be able to prove or not or whether it would advance the applicants' case or not, are not relevant considerations for deciding the application for an amendment.
(3.) IN the present case, the decree for ejectment has been passed or the ground that the plaintiff landlord required the suit premises reasonably and bonafide for his own use. The ground for eviction is not only required to be in existence at the time of filing of the suit but also must continue to exist until decree is executed or tenant is actually evicted. A decree passed on such ground cannot be executed to eject a tenant, if the tenant is able to show even at the time of execution, that such requirement has ceased to exist since the passing of the decree. The facts, that after passing of the decree the landlord had acquired vacant possession of premises of the like nature as the suit premises are in the same vicinity and that landlord has not put it to use for the requirement which he pleaded for evicting the tenant, are certainly relevant factors to be considered even at the time of execution of decree. If that is the intendent ambit of Sec. 13 of the Rajasthan Premises (Control of Land and Eviction. Act, 1950, which is a non-obstant clause, it cannot be said, that the plea sought to be raised by the defendant-appellant before the first appellate court were not relevant or germane to the decision of appeal. The enquiry into such facts could not be avoided, merely on the basis of a tentative or prima facie opinion formed on the basis of affidavits or counter allegations in the application and reply. The learned counsel for the respondent at this stage urged that the proper course in such event was not to seek amendment of the pleadings but to seek permission to lead additional evidence relevant to the issue relating to existence of reasonable and bonafide requirement of the landlord on the happening of subsequent events. Learned counsel for the petitioner has no objection to this courts being adopted. The facts which are sought to be brought on record by way of amendment are not independent controversy in itself but relevant to decision of issue no. 1 relating to existence of reasonable and bonafide requirement of premises by the landlord. ;