RAHMAN MIAN Vs. RAM CHANDRA SHARMA

JUDGEMENT

(1.) Heard learned Counsel for parties and perused the record. Respondent-landlord filed Release Application registered as P.A. Case No. 43 of 1998 seeking release of accommodation in question, which is a shop, for his personal need. Prescribed Authority found that landlord has failed to prove bona fide and genuinity of his personal need and, therefore, application was rejected. Landlord preferred Rent Control Appeal No. 8 of 2001. During the pendency of appeal, he sought an amendment in Release Application so as to add certain factual averments demonstrating that shop in question is required for settling his son in business. Initially, the amendment application, since it raises a new ground and setting up a new case, was rejected by Lower Appellate Court where against respondent-landlord came to this Court in Writ Petition No. 48751 of 2002, which was allowed and this Court directed that aforesaid amendment be allowed to be made in the Release Application and, thereafter, the matter shall proceed in accordance with law. It would be appropriate to reproduce relevant part of the judgment dated 11.5.2007, as under:

(2.) In the result, the amendment sought was made part of Release Application. Lower Appellate Court, however, did not allow the parties to lead evidences, documentary or oral, in respect to the new case set up by respondent-landlord and instead on the basis of evidence, already on record, proceeded to decide appeal and accepting amended case of landlord about the need of his son, appeal has been allowed by means of impugned order dated 15.10.2008.

(3.) It is not unmerited to say that such an amendment, which introduced a total new case would have required fresh evidence from both the sides, in favour or against, so as to enable appropriate Court to adjudicate upon the new case set up by landlord. The Lower Appellate Court though exercised a concurrent jurisdiction with the Trial Court but when further evidence was required to be adduced by parties, it would have been appropriate for Lower Appellate Court either to remand the matter to the Trial Court in its entirety or to direct Trial Court to record evidence on the issue, newly raised at appellate stage, and thereafter forward such evidence for consideration by Lower Appellate Court. Unfortunately, Lower Appellate Court has proceeded as if evidence already adduced by parties in respect to issue, as it was initially raised by landlord, would be sufficient to consider the new case, though need of the person having changed, a new set of evidence was needed.