- (1.) THIS is a defendant-tenant's second appeal arising out of a suit for ejectment with respect to a portion of plaintiff-respondents' house, situated in the city of Ajmer The plaintiff-respondents No. 1 Hoogewerfe is brother, and plaintiffs-respondents No. 2 and 3 are sisters. Plaintiff No. 1 as well as plaintiff No. 3 are married. Plaintiff No. 1 has five children, and plaintiff No. 3 has one daughter. They are joint owners of the property in dispute. The plaintiff's case is that the respondent-plaintiff No. 3 used to live at Mahu with her husband when the latter was posted there as a Railway Engine Driver, and since he had retired from, service, the premises in question were required by the plaintiffs for residence of respondent No. 3, and her family.
(2.) THE defendant denied the suit, and pleaded that there was enough accommodation already available with the plaintiffs, and the suit had been instituted with a motive to increase the rent. After recording the evidence produced by the parties, the trial Court decreed the suit, and on appeal by the defendant the learned Civil Judge, Ajmer affirmed the judgment and decree by the trial Court. Hence, this second appeal. A preliminary objection has been raised by the learned counsel for the plaintiff-respondents that the question of bona fide and reasonable necessity answered by the Courts below in favour of the respondents is a question of fact which cannot be agitated in second appeal; In support of this contention he has relied upon Mattulal vs. Radhe Lal (l ). In order to meet the preliminary objection the learned counsel for the appellant has submitted that the finding arrived at by the learned Addl. Civil Judge on the question of personal necessity is vitiated as it is based on unwarranted assumptions, and that the case has not been examined from correct angle regarding burden of proof He has also contended that after filing of this appeal, the plaintiffs have acquired possession of one big room, one small room, one varandah in front of both the rooms, one kitchen, one bath and one latrine from another tenant Sujan and hence in case it is held that the accommodation in possession of the plaintiffs on the date of the suit was insufficient, then too deficiency, if any, has been adequately made up in view of this subsequent event which may be taken into consideration. I would first; take up the question whether the subsequent event relied upon by the appellant can be taken into consideration ? During the pendency of this appeal on 23-1-74, the appellant made an application supported by her affidavit that Sujan another tenant had vacated the premises in his occupation in November, 1973, as a result of which the plaintiff has come into possession of two rooms, one varandah, a kitchen, a bath-room and a latrine. The plaintiff No. 3 in her reply admitted that the accommodation that had fallen vacant consisted of one room, measuring 25-1/2' x 16-1/2', and a varandah measuring 251/2' x 7', and that the varandah was being used as a kitchen and a bath. Thus, in face of this reply there is no room for doubt that the plaintiff has got possession of one more room, and a varandah during the pendency of this appeal.
(3.) LEARNED counsel for the respondent, however, strenuously contended on the basis of Pammandas vs. Mst. Lachmi Bai (2) that the proper way to decide the question of personal necessity in such a case would be to see whether the plaintiffs stood in bona fide and reasonable necessity to occupy the suit premises at the date of the suit, at the most, while the matter was being investigated in the trial Court and the circumstances which have admittedly arisen after the second appeal was filed in this Court cannot be taken into consideration. On the other hand, learned counsel for the appellant invited my attention to two other single bench decisions of this Court, where, in on ejectment suit by a landlord against his tenant, subsequent events which had taken place during the pendency of the second appeal were taken into consideration. One is Permanent vs. Abdul Kadir (3 ). In that case, the plaintiff had sold away the suit property during the pendency of the second appeal. The learned Judge held that if a change of this character took place after the commencement of the litigation, then it will be in consonance with justice to permit the facts to be brought on record and to decide the matter in light of such facts. In another case, S. B. Civil Second Appeal No. 257/1965 Dhingarmal vs. Pukh Raj, decided on 9th August, 1965, it was held that in a case like the present, subsequent circumstances in the interest of justice could be taken into account to shorten the course of litigation. In that case, some Additional accommodation had admittedly fallen vacant during the pendency of the first appeal, and it was held that this circumstance can be taken into consideration. In Narasinha vs. Yellappa (4), the trial Court passed decree for eviction, and the plaintiff on appeal to the District Judge tried to show that during the pendency of the appeal the landlord leased out the shop premises held in his occupation, and thus the need of the landlord no longer subsisted ; and, therefore, he should be non-suited. The learned District Judge refused to act upon this ground, which, in substance, was to the effect that events subsequent to the decree made by the trial Court could not be made the basis of setting aside the decree. It was held that the District Judge's refusal to consider the additional evidence was erroneous. In Porkrakutty vs. A. Memmad (5), which was a case under the Madras Buildings (Lease and Rent Control) Act, learned Judge relied on a number of cases of the Bombay High Court, namely : AIR 1922 Bom. 109 ; AIR 1929 Bom. 337 ; AIR 1925 Bom. 122 ; 3 Bom. L. R. 227 ; 6 Bom. 113; and AIR 1921 Bom. 34 and came to the conclusion that a Court can take notice of the events that have happened since the institution of the suit, and mould its decree according to the circumstances as they stand at the time the decree is made. ;