JASWANT KAUR & ANR.versusSUBHASH PALIWAL & ORS.

                       [2009] 16 (ADDL.) S.C.R. 481             481


                         JASWANT KAUR & ANR.                           A
                                     v.
                       SUBHASH PALIWAL & ORS.
                       (SLP (C) No. 3592 of 2006)
                          DECEMBER 15, 2009
                                                                       B
          [ALTAMAS KABIR AND MARKANDEY KATJU, JJ.]
               Code of Civil Procedure, 1908 - 0. 6 r. 17 and 0. 41 r.
      ' 27 - Application under - Maintainability of - Suit for eviction
         of tenant from shop room and recovery of rent by respondent
         no. 1 and 2-sons of original owner- Ground of bonafide need C
         of respondent no. 1's son - Subsequently, application u/O. 11
         r. 12 and 14 seeking direction upon respondent no. 1 and 2
         to produce Will executed by their father - Case of tenant that
         shop room was bequeathed to respondent no. 2, thus
         respondent no. 1 not the owner and suit not maintainable - D
       ~Dismissal of application - Written statement by tenant but no
•        averments made regarding Will, however admitted that
         respondents were their landlords - Decree in favour of
         respondents - During pendency of appeal, application u!O.
         6 r. 17 for amendment of written statement to incorporate the E
        plea regarding Will - Dismissal of application - Revisional
        application by tenant - Thereafter, tenant obtained certified
        copy of Will - Filing of applications u/O. 6 r. 17 and 0. 41 r.
...
-     1
        27 for amendment of written statement and to bring on record
        the certified copy of Will - Allowed by First Appellate Court - F
        However, set aside by High Court - Special Leave Petition -
        Held: High Court rightly entertained the appeals - Tenants
        admitted in their written statement that respondents were their
        landlords and they were paying rent for the shop to them, thus,
        could not resile from their admissions - More so, tenants were G
        fully aware of Will but did not mention the same in the written
        statement and only made application u/O. 11 r. 12 and 14 -
      •Applications u/O. 6. r. 17 and 0. 41 r. 27 filed after a long
        delay - It was an attempt to introduce a new case by way of
                                   481                                 H
    482 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A defence - Hence, Special Leave Petition dismissed - 0. 43
    r. 1(u) - Rajasthan Premises (Control of Rent & Eviction)
    Rent Act, 1950 - s. 3(iii), 13.

       Dondapati Narayana Reddy vs. Duggireddy
B
  Venkatanarayana    Reddy (2001) 8 SCC 115; Prem Bakshi
  and Ors. vs. Dharam Dev and Ors. (2002) 2 SCC 2; Rajesh
  Kumar Aggarwal vs. K.K. Modi (2006) 4 SCC 385; Andhra
  Bank vs. ABN Amro Bank N. V. (2007) 6 SCC 167; Pandit
  lshwardas vs. State of M.P. (1979) 4 SCC 163; Harcharan vs.
  State of Haryana (1982) 3 SCC 408, distinguished.
c
                          Case Law Reference:

        (2001) 8 sec 115           Distinguished.        Para 7

        (2002) 2 sec 2             Distinguished.        Para 7
D
        (2006) 4 sec 385           Distinguished.        Para 7
        (2007) 6 sec 167           Distinguished.        Para 7

        (1979) 4 sec 163           Distinguished.        Para 9
E       (1982) 3 sec 408           Distinguished.        Para 9

         CIVIL APPELLATE JURISDICTION: SLP (Civil) No. 3592
    of 2006.

        From the Judgment & Order dated 19.12.2005 of the High         j
                                                                           ~
F
    Court of Judicature for Rajasthan at Jodhpur in S.B. Civil Misc.
    Appeal No. 600 of 2003.

         Shobha, Harish Sharma, Ramesh Pd. Yadav for the
    Petitioners.
                                                                           -
G
        S.K. Keshote, H.D. Thanvi, Sarad Kr. Singhania, P.
    Chaturvedi for the Respondents.

        The Judgment of the Court was delivered by

H       ALTAMAS KABIR, J. 1. One Bhavani Shankar, the father
               JASWANT KAUR & ANR. v. SUBHASH PALIWAL & 483
                        ORS. [ALTAMAS KABIR, J.]
             of the Respondent Nos.1 and 2, Subhash Paliwal and Gopal           A
             Paliwal, was the owner of several properties, including the
             disputed shop room. After his demise, on 3rd January, 1998,
             Subhash Paliwal and Gopal Paliwal filed a suit against the
             petitioners for their eviction from the shop room in question on
             the ground of personal necessity and bonafide necessity of         B
             Sandeep, son of Subhash Paliwal, for his painting business.
             On 22nd July, 1998, the petitioners filed an application under
             Order XI Rules 12 and 14 of the Code of Civil Procedure, 1908,
             for a direction upon the respondents to produce on record the
             Will said to have been executed by their late father, Bhavani      c
             Shankar, on 21st July, 1989, whereby he was alleged to have
             bequeathed the disputed shop room to his younger son, Gopal
             Paliwal, thereby asserting that Subhash Paliwal was not the
             owner of the suit shop room and the suit for eviction for the
             bonafide need of his son was not, therefore, maintainable.
                                                                                D
...i               2. After hearing the submissions made on behalf of the
        "'    respective parties, the learned Civil Judge dismissed the said
              application. Subsequently, the petitioners herein filed their
_...,        written statement on 8th December, 1998, denying the
             averments made in the plaint, but without making any averment      E
             with regard to the existence of the Will said to have been
             executed by Bhavani Shankar. Ultimately, by judgment and
             decree dated 2nd August, 2000, the learned Trial Court
             decreed the suit for eviction and recovery of rent in favour of
Ir'
        '    the respondents, against which the petitioners preferred First     F
             Appeal on 28th August, 2000.
--j
                  3. On 3rd August, 2002, the petitioners filed an application
             in the pending appeal under Order VI Rule 17 of the Code of
             Civil Procedure for amendment of the written statement to
                                                                               G
             incorporate the submissions that in view of the Will purportedly
             executed by Bhavani Shankar, Subhash Paliwal was not the
             owner of the suit property and could not, therefore, ask for
        "'   eviction of the petitioners therefrom for the personal and
             bonafide requirement of his son. The learned Additional District
                                                                               H
    484 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.


A Judge No.2, Udaipur, by his order dated 13th November, 2002,
  dismissed the application filed by the petitioners on the ground
  that despite having knowledge of the Will in question even at
  the time of filing written statement, no such averment had been
  made. The revisional application filed by the petitioners before
B the High Court against the order dated 13th November, 2002,
  has been lying defective and no steps have been taken to
  proceed with the same.

       4. According to the petitioners, on obtaining a certified
  copy of the Will dated. 21st July, 1989, said to have been
C executed by Bhavani Shankar, the petitioners once again made
  an application under Order VI Rule 17 and under Order XLI
  Rule 27 of the Code of Civil Procedure for amendment of the
  written statement and for permission to bring on record
  additional evidence on the ground that the Will in question was
D not in their possession prior to 18th November, 2002, as a
  result whereof they were unable to make any teference thereto
  in the written statement. The First Appellate Court by a
  reasoned order dated 20th May, 2003, allowed both the
  applications, against which the respondents filed Civil
E Miscellaneous Appeal before the High Court and the High
  Court by its impugned order dated 19th December, 2005,
  allowed the appeal and rejected both the applications filed by
  the petitioners on 3rd January, 2003, under OrderVI Rule 17
  CPC and Order XLI Rule 27 CPC.
F
         5. Appearing on behalf of the petitioners, Ms. Shobha,
   learned Advocate, submitted that the High Court had erred in
   interfering with the reasoned judgment of the First Appellate
   Court since Subhash Paliwal did not fall within the definition of
G "landlord" as defined in Section 3(iii) of the Rajasthan Premises
   (Control of Rent & Eviction) Rent Act, 1950 (hereinafter referred
   to as "the 1950 Act"), under Section 13 whereof a suit for
   eviction could be brought by the landlord on the ground of
 _ bonafide necessity for the use or occupation for himself or his
   family. Ms. Shobha submitted that neither the brother nor the
H
  JASWANT KAUR & ANR. v. SUBHASH PALIWAL &                  485
           ORS. [ALTAMAS KABIR, J.]
 brother's son of the exclusive owner would have any right to      A
 claim eviction after their rights were separated by the Will
 executed by Bhavani Shankar on 21st July, 1989.

       6. Ms. Shobha submitted that the powers of the Appellate
 Court were sufficiently wide to allow the introduction of         8
 additional evidence if the Courts below had wrongly declined
 to admit the evidence or if the parties seeking to bring the
 documents on record failed to produce the same despite due
 diligence, or if the Appellate Court thought it appropriate to
 have the said document on record for a proper adjudication of     C
the !is. Ms. Shobha urged that the High Court had failed to
gauge the importance of bringing on record the certified copy
of the Will by way of additional evidence and had erred in
disallowing the petitioners' prayer for amendment of the written
statement on the basis thereof, as it went to the very root of
the petitioners' case that Subhash Paliwal had no right to         D
maintain the suit jointly with Gopal Paliwal for eviction of the
petitioners from the suit shop room for the bonafide need of
the nephew of the exclusive owner.

      7. Ms. Shobha submitted that as was held by this Court in    E
Dondapati        Narayana      Reddy        vs.    Duggireddy
 Venkatanarayana Reddy [(2001) 8 SCC 115], amendment of
pleadings should be liberally allowed, unless it is established
that the result would cause such injustice and prejudice against
the opposite side as could not be compensated by costs or          F
as would deprive hirn of a right accrued due to lapse of time.
Reference was also made to a decision of this Court in Prem
Bakshi and others vs. Dharam Dev and others [(2002) 2 SCC
2] in the context of an application for amendment filed under
Order VI Rule 17 CPC, wherein it was observed that it was          G
almost inconceivable how mere amendments of pleadings
could possibly cause failure of justice or irreparable injury to
any party. It was observed that such amendments only serve
advance notice to the other side as to the plea which a party
might take up. Accordingly, a situation could not be envisaged
                                                                   H.
    486 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.


A where amendment of pleadings, whatever be the nature of such
  amendment, would even remotely cause failure of justice or
  irreparable loss to any party. Reference was also made to the
  decision of this Court in Rajesh Kumar Aggarwal vs. K.K. Modi
  [(2006) 4 sec 385], wherein the approach to be taken by the
B Courts in considering whether to permit amendment fell for
  consideration and it was held that the Courts should allow all
  amendments that may be necessary for determining the real
  question in controversy between the parties, provided it did not
  cause injustice or prejudice to the other side. It was observed
c that the real controversy test is the basic or cardinal test and
  it is the primary duty of the Court to decide whether such an
  amendment is necessary to decide the real dispute between
  the parties. Similar views were also expressed in Andhra Bank
  vs. ABN Amro Bank N. V. [(2007) 6 SCC 167].
D      8. Ms. Shobha urged that although the Will in question may
  have been within the knowledge of the petitioners, without
  obtaining a certified copy thereof, it was not possible to include
  the same in the pleadings while filing the written statement,
  particularly when the application filed by the petitioners under
E Order XI Rules 12 and 14 for discovery of the said document
  had been rejected by the Trial Court.

       9. It was further submitted that the High Court should have
  appreciated the fact that there was no bar to the Appellate
F Court permitting amendment of pleadings to enable a party to
  raise a new plea, as was held by this Court in Pandit lshwardas
  vs. State of M.P. [(1979) 4 SCC 163]. In fact, this Court
  observed that all that was necessary was that the Appellate
  Court should observe the well-known principles subject to which
  amendments of pleadings are usually granted. Naturally, one
G of the circumstances which would be taken into consideration
  before an amendment was granted is the delay in making the
  application seeking such amendment and, if made at the
  appellate stage, the reason why it was not sought in the Trial
  Court. Ms. Shobha also referred to the decision of this Court
H
           JASWANT KAUR & ANR. 'v. SUBHASH PALIWAL & 487
                    ORS. [ALTAMAS KABIR, J.]
         in Harcharan vs. State of Haryana [(1982) 3 SCC 408], where            A
         it was observed that amendment of pleadings relating to the
         main controversy should not be refused on mere technical
         grounds.

              10. Ms. Shobha then contended that the appeal in the High         B
         Court was not maintainable under Order 43 Rule 1 CPC against
         an order passed either under Order 6 Rule 17 or Order 41 Rule
         27 CPC.

              11. Ms. Shobha concluded on the note that since by virtue
         of the Will executed by Bhavani Shankar, neither Subhash               C
         Paliwal nor his son had any ownership rights over the disputed
         shop room, the suit for eviction filed by Subhash Paliwal for the
         bonafide need of his son was not maintainable being hit by
         Section 13(1 )(h)(i) of the 1950 Act. She urged that the High
         Court had exercised its jurisdiction erroneously in interfering with   D
         the order of the Appellate Court.

               12. Appearing for the Respondents, Mr. S.K. Keshote,
          learned Senior Advocate, contended that the submissions
          made on behalf of the Petitioners was misconceived, since             E
          even in their written statement filed on 8th December, 1998,
          no reference had been made to the Will and the Petitioners
         admitted the Respondents to be their landlords and had also
·,   '   contended that the rents for the suit premises were being paid
         to them. Mr. Kishote submitted that the suit was ultimately
         decreed by the Trial Court in favour of the Respondents on 3rd         F
         August, 2000, and an appeal was filed by the Petitioners herein
         against the said judgment and decree on 28th August, 2000.
         Thereafter, it was only on 3rd September, 2002, that an
         application was made for amendment of the written statement
         to incorporate the plea regarding the Will. By its order dated         G
         13th November, 2002, the First Appellate Court dismissed the
         said application on the ground that though the fact regarding
         the execution of the Will was within the knowledge of the
         Petitioners even at the time of filing of the written statement,
         no such pie~ had been taken till the suit was decreed or even          H
    488 · SUPREME COURT REPORTS (2009) 16 (ADOL.) S.C.R.


A   in the Appeal when the same was filed.

         13. Mr. Keshote submitted that no interference was,
    therefore, called for with the findings of the First Appellate Court
    regarding the lapse on the part of the Petitioners herein to
    amend the written statement during the trial of the Suit.
8
       14. On the question of maintainability of the Appeal before
  the High Court in view of the provisions of Order XLlll Rule 1 of
  the Code of Civil Procedure, Mr. Keshote submitted that under
  the amended provisions of clause (u) of Rule 1 of Order XLlll,
C which was brought into effect from 1st February, 1977, an
  Appeal against an order of remand under Rule 23-A of Order
  XLI CPC, is maintainable. For the sake of reference, the
  provisions of Order XLlll Rule 1(u) CPC are extracted
  hereinbelow :-
D
         "Order XLI II Rule 1

         Appeal from orders - An appeal shall lie from the following
         orders under the provisions of Section 104, viz.:-

E        (a) to (t) ..................................................... .

         (u) an order under Rule 23 or Rule 23-A of Order XU
         remanding a case, where an appeal would lie from the
         decree of the Appellate Court;

F        (w) .................................................................. "

        15. Mr. Keshote then submitted that having admitted the
  relationship of landlord and tenant in their written statement, the
  Petitioners could not resile from their admissions and that too
G at the appellate stage. It was submitted that the application for
  amendment was not bonafide and had been correctly dismissed
  by the High Court. Mr. Keshote urged that once the prayer
  made by the Petitioners to get the certified copy of the Will on
  record before the Trial Court under the provisions of Order XI
H Rules 12 and 14 C.P.C. was rejected on 22nd July, 1998, the
   JASWANT KAUR & ANR. v. SUBHASH PALIWAL & 489'
            ORS. [ALTAMAS KABIR, J.]

 question of an application under Order XU Rule 27 CPC for             A
 the same purpose, did not arise.

        16. We have carefully considered the submissions made
  on behalf of the respective parties and in view of the
  introduction of Rule 23-A in Order XLlll Rule 1(u) CPC, it can       B
· no longer be argued, as has been done by Ms. Shobha, that
  the Appeal was not maintainable. We are, therefore, satisfied
  that the Appeals before the High Court were maintainable and
  had been rightly entertained by the High Court.

       17. As far as Ms. Shobha's second submission regarding          C
 the bonafide requirements of the son of Respondent No.1,
 Subhash Paliwal, is concerned, we are unable to accept the
 same in view of the Petitioners' own admission in their written
 statement that Subhash Paliwal and Gopal Paliwal were their
 landlords in respect of the suit shop room and that they had          D
 been paying rents to them till the filing of the suit. In fact, the
 Petitioners would stand estopped from taking such objection
 under Section 116 of the Evidence Act.

      18. It is no doubt true, as has been submitted by Ms.            E
Shobha, that the power to allow amendment of pleadings is
very wide and is to be applied liberally. However, in the context
of the instant case, such an argument would not be available
to the Petitioners since, as found by the Courts below, they were
fully aware of the Will in question, but had not even mentioned
                                                                       F
the same in their written statement and had only made an
application under Order XI Rules 12 and 14 CPC for a direction
upon the Respondents to produce the same, which prayer had
been rejected. It is only at the first appellate stage, and, that
too, about two years after the Appeal had been filed, that the
two applications were made under Order XU Rule 27 and                  G
Order VI Rule 17 CPC for amendment of the plaint and for
bringing on record the certified copy of the Will. By virtue of the
said two applications, the Petitioners attempted to introduce a
new story by way of defence in order to prolong the disposal
of the appeal.                                                         H
    490 SUPREME COURT REPORTS (2009) 16 (ADDL.) S.C.R.


A       19. In such circumstances, we are of the view that
  notwithstanding the new case attempted to be made out by the
  Petitioners, the same is .of little consequence in view of their
  admission that the Respondents, Subhash Paliwal and Gopal
  Paliwal, were their landlords and that they were paying rents
B for the suit shop room to them.

        20. The various decisions cited by Ms. Shobha quite
  unequivocally lay down the law relating to amendment of
  pleadings, but they cannot be applied to the facts of this case
C in view of the admissions made on behalf of the petitioners that
  they had been paying the rents for the suit shop room to the
  respondents.

       21. In view of such admission, little remains to be
  conside.red in the present proceedings, notwithstanding Ms.
D Shobha's submission regarding the definition of "landlord" in
  Section 3(iii) of the 1950 Act in support of her submission that
  Subhash Paliwal did not fall within the description of"landlord"
  in the Act. The Special Leave Petition is, accordingly,
  dismissed. ·
E
       22. There will, however, be no order as to costs .

    N.J.                      .Special Leave Petition dismissed.