PANWAR, J. - (1.) BY the instant writ petition under Articles 226 and 227 of the Constitution of India, the order Annx. 6 dated 9. 4. 2008 passed by respondent No. 2 the Additional District Judge No. 3, Udaipur (for short, "the Appellate Court" hereinafter) to the extent of dismissing the application Annx. 3 filed by the petitioner under O. 6 R. 17 CPC has been challenged.
(2.) THE facts and circumstances giving rise to the instant writ petition are that respondent No. 1, the plaintiff, filed a suit against the petitioner-defendant under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, "the Old Act" hereinafter) for eviction of the suit premises i. e. shop No. 13 situated at Ashwini Market, Udaipur and arrears of rent. THE eviction was sought on the ground of reasonable and bona fide personal necessity of the respondent- plaintiff, the landlord. THE petitioner-defendant, the tenant, contested the suit and ultimately the suit came to be decreed, against which the petitioner-defendant filed an appeal before the respondent No. 2, the Appellate Court. During pendency of the appeal, there had been subsequent change in the circumstances, by which, according to the petitioner-defendant, the reasonable and bona fide need of the respondent-plaintiff for the suit premises did not survive and, therefore he filed an application under O. 6 R. 17 CPC (Annx. 3) seeking amendment in the written statement. That application came to be dismissed by the respondent No. 2, the Appellate Court, vide impugned order Annx. 6 dated 9. 4. 2008. Hence this writ petition. I have heard learned counsel for the parties. Perused the writ record as also the impugned order Annx. 6 dated 9. 4. 2008. It is contended by the learned counsel for the petitioner- defendant that the respondent-plaintiff filed the suit on the ground that the disputed shop is needed for his son Kailash for establishing a restaurant. Respondent-plaintiff subsequently came with the case, as averred in the plaint Annx. 1, that respondent- plaintiff wanted to establish a restaurant for his son Kailash by removing the wall between the disputed shop and the shop adjacent thereto so as to run the restaurant to serve the break-fast, south-Indian dish, cold and hot drinks, ice-cream etc. to customers, as also to sell milk products like chocolets, brakery items etc. on a counter; and the other part of the shop will be utilized for establishing a "bhojnalaya", half portion of which will be used for dinning hall and half for kitchen. Learned counsel for the petitioner-defendant further submits that the petitioner received the information through one Shanker Singh that the respondent-plaintiff's son Kailash has already started the business in partnership under the name and style of "green- Valley Marble" and during the Financial Years 2004-05 and 2005- 06, the total sell was of Rs. 30,37,048/- and 29,76,442/- respectively, which shows that respondent-plaintiff's son Kailash has been fully established in the business and as such there remains no further need of the shop in question and the ground seeking eviction of the disputed shop on the basis of personal, reasonable and bona fide necessity of the respondent-plaintiffs son Kailash does not subsist and this being the subsequent event and material to decide the controversy between the parties, this fact was sought to be introduced by amendment in the written statement. It has further been submitted that without being pleaded in the written statement, it will not be possible, rather it will not be permissible for the petitioner-defendant to contend and establish that the respondent-plaintiff is not having personal, reasonable and bona fide necessity of the suit premises and, therefore, he is not entitled for eviction of the shop in question. In support of his contention, learned counsel for the petitioner-defendant has relied on the decisions of the Hon'ble Supreme Court in Gulabbai vs. Nalin Narsi Vohra & Ors. , AIR 1991 SC 1760; Hasmat Rai vs. Raghunath Prasad, AIR 1981 SC 1711; Ramesh Kumar vs. Kesho Ram, AIR 1992 SC 700; B. K. N. Pillal vs. P. Pillai, AIR 2000 SC 614 = RLW 2000 (2) SC 279; Estralla Rubber vs. Dass Estate (P) Ltd. , (2001) 8 SCC 97; and Andhra Bank vs. ABN Amro Bank N. V. , (2007) 6 SCC 167: and the decisions of this Court in Smt. Mohani vs. Mst. Gopi, 1990 (1) RLR 553; and Radhey Shyam Soni vs. Sumermal Phophalia & Anr. , 2006 WLC (Raj.) UC 493. Learned counsel for the respondent-plaintiff, submits that the Code of Civil Procedure, 1908 came to be amended by the Amendment Act, 2002 (Act No. 22 of 2002) amending the provisions of O. 6 R. 17 CPC which has restricted the power of amending of pleadings. It has further been contended that it is for the landlord to decide how and in what manner he should live. Learned counsel submits that while deciding the question of personal, reasonable and bona fide need, the crucial date is the date of filling of the suit and the subsequent evident can only be considered if need is completely eclipsed by the subsequent event. Lastly, it was contended that the scope of interference under Article 227 of the Constitution of India is very limited as this Court enjoys the supervisory jurisdiction under Article 227 of the Constitution of India and the impugned order has to be examined as to whether the inferior court proceeded within its parameters and not to correct the error. Learned counsel for the respondent-plaintiff has relied on the decisions of the Hon'ble Supreme Court in R. C. Tamrakar & Anr. vs. Nidi Lekha, JT 2001 (8) SC 612; Gaya Prasad vs. Pradeep Shrivastava, AIR 2001 SC 803 and Om Prakash Gupta vs. Ranbir B. Goyal, 2002 WLC (SC) 169; and the decisions of this Court in Ghasi Ram alias Ghisa vs. Additional District Judge No. 1, Siklar & Ors. , 2004 (2) DNJ (Raj.) 584; Manikyapuri Housing Co-operative Society vs. Mahesh Chaiturvedi & Anr. , RLW 2004 (3) Raj. 1677; and Legal Representatives of last Shri Rameshwar Lal vs. Legal representatives of late Shri Nijamuddin, SBCWP No. 2049/2004 decided on 2. 5. 2008. I have given my thoughtful consideration to the rival submissions made by the learned counsel for the parties.
(3.) IN Gulabbai vs. Nalin Narsi Vohra & Ors. (supra), the Hon'ble Supreme Court observed as under:-      " On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the Court by the application for additional evidence filed under O. 41 R. 27 of the Code of Civil Procedure and in coming to a firm finding that the plaintiff-appellant constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejectment of the defendants from the suit premises inasmuch as the first floor of the suit premises as well as the second floor could be conveniently used for opening the office of Tax Consultancy of plaintiff's husband who previously worked with one Mr. Gandhi in a partnership firm which partnership had been dissolved after Mr. Gandhi's son came to practice with his father. " In Hasmat Rai & Anr. vs. Raghunath Prasad (supra), in a suit for eviction of the tenant from the building for personal business requirement and while the pendency of the second appeal, the landlord acquired possession on one of the premises and an application under O. 6 R. 17 CPC was removed and in that context, the Hon'ble Supreme Court observed as under:-      " In the second appeal in the High Court the defendant appellant moved an application under Order VI Rule 17 for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand has become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of the area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant appellant was guilty of delay and laches. this application for amendment deserves to be granted, and we grant the same. " It was further observed that the burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand. Alternatively, the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start. He has done neither. On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business. In such a situation if the High Court had kept in view that the plaintiff had already with him viz. Possession of a building having 18' frontage on the main road and 90' depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists. It was nowhere pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18', 18' frontage on a main road in a city like Builaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90', therefore landlord has now in his possession shop admeasuring 18' x 90' plus the area of 7' x 90' at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists? Not one word has been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his business. ;