MILAP CHANDRA, J. - (1.) THIS second appeal has been filed against the judgment of the Additional District Judge No. 2, Jodhpur dated August 10, 1988 by which he dismissed the appeal and confirmed the judgment of the Additional Munsif No. 1, Jodhpur, decreeing the plaintiff-respondent's suit for ejectment against the defendant-appellant. The facts of the case giving rise to this appeal may be summarised thus.
(2.) ON December 20, 1979, the plaintiff respondent filed a suit for the recovery of arrears of rent & mesne profits and ejectment of the defendant-apell-ant with the allegations, in short, as follows. After practising for fifteen years in the High Court as an Advocate, he joined the University of Jodhpur in August, 1963 as a Professor. ON the request of the defendant, the front portion of his office (verandah) was let out to her on monthly rent of Rs. 50/- w. e. f. June 1, 1974 with a clear understanding that it would be vacated as soon as it was required. His son Shri Vijay Singh Gehlot has passed LL. B. in the year, 1979, he has been enrolled as an Advocate and has started his practice. Accommodation for the office is urgently and genuinely needed. In the rear portion of the office, his daughter-in-law Smt. Bhagwati, M A. has fitted her knitting machine after taking loan from the Bank. The dimensions of the existing office are 10' x 16' only. It has only one door through the lane, it also does not have any window of ventilator for light & air. It is inadequate and insufficient for the purpose of an office of an Advocate. The plaintiff will also resume his practice after his retirement from the University in February, 1980. The defendant carries on the business of selling small pieces of cloth on a petty scale in the demised premises. Her husband is in the service of the Railway and three sons have good earnings. She is not vacating the demised premises with an ulterior motive despite service of the notice. The defendant admits in her written statement that she is in possession & occupation of the demised premises on monthly rent of Rs. 50/- as a tenant of the plaintiff, plaintiff's son Sri Vijay Singh Gehlot has started law practice and the plaintiff's daughter-in-law Smt. Bhagwati Devi carries on knitting business. The remaining allegations of the plaint have been denied. It has also been averred that the demised premises are not required by the plaintiff, he would not suffer any hardship if the suit is not decreed and. on the contrary, she would suffer a great hardship if the suit is decreed. After framing necessary issues & recording the evidence of the parties, the learned trial court held that the demised premises is reasonably and bonafide required by the plaintiff, he would suffer great hardship if the suit is not decreed and the defendant would not suffer any hardship, if the suit is decreed. It has also held that the demised premises cannot be divided as its dimensions are 6' x 10' only and as such partial eviction is not possible. Appeal No. 17/84 was filed in the Court of the District Judge, Jodhpur by the defendant and it was heard and decided by the learned Additional District Judge No. 2, Jodhpur by his judgment under appeal. On the request of the learned counsel for the parties, arguments were heard for the final disposal of the appeal at the admission stage vide order-sheet dated March 28, 1989. It has been contended by the learned counsel for the defendant-appellant that the rent note (Ex. 1) was executed by the defendant-appellant in favour of the plaintiff and his two sons Shri Vijay Singh and Shri Ashok Kumar, the notice of ejectment (Ex 3) was given by the plaintiff alone, the suit has also been filed by the plaintiff Dr. Mahaveer Singh alone and as such the suit as not maintainable as the two co-owners are not parties in the notice (Ex. 3) and also in the plaint. He relied upon 1982 R. C. J. 752 (Rajasthan ). There is no force in this contention. It has specifically been averred in para No. 6 of the plaint that the defendant took the demised premises on rent from the plaintiff and the plaintiff let it out to the defendant. These averments have unequivocally been admitted in the written statement vide its para No. 6. For this reason, no issue was framed on this point. It may also be mentioned here that a different suit was alsofiled against the defendant by the plaintiff alone for the recovery of arrears of rent, it was decreed, no such objection was taken in it and no appeal was filed by the defendant. The finding in the said suit operates as res-judicata. It is also well settled law that a co-owner can well file a suit for recovery of arrears of rent & ejectment against his tenant. Reference of Pal Singh vs. Sundar Singh, (1) and Jeet Mal v. Teo Mal, (2) may be made here. It has simply been observed in Shubrat Lal v. Ahsan Ali, (3) that all co-owners should file suit. There is no adjudication on the point in this reported case. It was next contended by the learned counsel for the defendant-appellant that the findings of both the courts below on the points of reasonable and bona fide necessity and comparative hardship are perverse. It has neither been mentioned so in the memorandum of appeal nor shown during the arguments as to how the findings are perverse. Both the lower courts have concurrently held that the plaintiff needs the demised premises reasonably and bona fide, he he would suffer greater hardship if the suit is not decreed and the defendant would not suffer any inconvenience in case of her ejectment. These are findings of facts and they cannot be challenged in the second appeal. Reference of Maitu Lal v. Radheylal (4), Bhairab Chandra v. Randhir Chandra (5) and Ram Das v. Inshwar Chander (6) may be made here. Two lower courts have properly discussed the evidence on record. They have rightly held that the plaintiff needs the suit premises reasonably & bonafide and he would suffer greater hardship if the suit is not decreed. In any view of the matter, these findings cannot be said to be perveres or contrary to the evidence on record.
(3.) IT was next contended by the learned counsel for the defendant-appellant that the learned Additional District Judge No. 2 seriously erred in rejecting the defendant's application moved under Order 6 Rule 17, C. P. C. dated 1. 8. 88 and another application moved under Order 26 Rule 9, C. P. C dated 3. 9. 88 to incorporate the averments in her written statement to the effect that other two shops belonging to the plaintiff fell vacant during, the pendency of the appeal, they were converted into a big hall by removing intervening wall and the plaintiff could very well shift his office in it. In reply to these applications, the plaintiff admitted that two shops fell vacant, they were converted into a hall by removing the intervening well and the latter was subsequently let out. The case of the plaintiff is for an additional accommodation which is just annexed to his existing office to make it a proper office as it existed earlier when the demised premises was carved out therefrom and let out in the year, 1974. IT is not the plaintiff's case that a new office is to be opened. If the plaintiff would have based his need of the suit premises for opening a new office for his son as well as for himself, the availability of the said two shops subsequently converted into a hall would have had a great material bearing in the case. This is not so in this case. The demised premises is required by the plaintiff for the various purposes in connection with his existing office. Firstly, for the passage, light & air. Secondly, for the sitting of the Clerk (Munshi) & clients. Thirdly, for furniture & growing library Fourthly, to make the office visible from the main road. The condition No. 7 of the rent note runs as under: Kidks tc dhkh bl oj. Msuqek nqdku dh t:jr gksxh rks esa fcuk fdlh mtj ds [kkyh djds iwjk fdjk;k vnk djds vKidks dctk lksai nwaxha vKidks eq> s 30 fnu igys tc dhkh Hkh pkgs] bl e;kn dh bryk dk uksfvl nsaxs ftlls fd esa viuk nwljk izcu/k dj ldwa D;ksafd ekstqnk oj. Mkuwek nqdku vkids vkwfql dk fljs njoktk gs vksj jklrk vksj jks'kuh ds fy, vkids vkwfql dh csbd ds fy, ;g t:jh gs blfy, vKidks vko';drk gksrs gh es 'krz eqrkfcd vKidks lksai nwaxha This is also stated in para No. 7 of the plaint and it is unequivocally admitted in para No. 6 of the written statement. Thus the defendant admits that the demised premises is the front portion of the office and it is necessary for the passage, light and air for the office. The Rajasthan Premises (Control of Rent & Eviction) Act prohibits ejectment on the sweet-will of a landlord. It does not prohibit the admissibility of such an admission of facts. The vacancy of the said two shops has nothing to do with any of the aforesaid purposes for the existing office of the plaintiff which is behind the suit premises It is not the defendant's case that the plaintiff can get light, air and passage to or view of his office from any of the aforesaid two shops which have fallen vacant. The clerk, clients, chairs & library should be as near as possible. The facts of the cases M. M. Qasim v. Manoharlal, (7) and Amarjit Singh v. Khatoon Quamarin, (8) are quite different and distinguishable. The plaintiff does not say here that the defendant has no say in the matter of his choice as to where he should keep his office. It was next contended by the learned counsel for the defendant-appellant that the learned first appellate court seriously erred in rejecting the application of the defendant-appellant moved under O. 6 Rule 17, C. P. C. by which he wanted to incorporate the plea that the rent note was executed in favour of the plaintiff and his two sons Vijay Singh and Ashok. Kumar, the notice of ejectment was given by only plaintiff Mahaveer Singh and as such suit is not maintainable. As already observed above, it is the admitted case of the parties in the pleadings that the suit premises was let out to the defendant by the plaintiff alone. By this amendment, the defendant wanted to wriggle out from her admission made in her written statement. It has been observed in M/s. Modi Spinning & Weaving Mills Company Ltd. v. M/s. Ladbaram and Company, (9) as follows: " 10 It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making in-consistant and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court. " ;