SUBEDAR SINGH Vs. MAHAVIR PRASAD JAIN

JUDGEMENT

(1.) ARNED counsel for the appellant during the course of his argument addressed only one point. He contended that in this Court an application under Order 6 Rule 17 CPC has been moved with respect to subsequent event and the amendment should be allowed in the interest of justice and once the amendment is allowed, the case has to be remanded for enabling the parties to adduce evidence on the facts mentioned in the amendment application. No other point has been raised by the learned counsel. Learned counsel did not say a word during the course of argument on the aforesaid two substantial questions of law formulated at the time of admission. No perversity in the judgment passed by the lower appellate Court has been shown nor it has been shown as to how the learned trial Court committed error in allowing respondent (plaintiff) to change the ground under section 12 (1) (f) into one under section 12 (1) (e) of the Act. Thus, the only point that falls for consideration is the fact as to whether the amendment sought through the application dated 20.7.94 can be allowed and if so whether the case has to be remanded, as contended by the learned counsel for the appellant.

(2.) EARNED counsel for the respondent on the other hand contended that the point sought to be raised through amendment application is not a new point. It was raised before the first appellate Court and the first appellate Court had also considered it in its judgment. It will be useful to mention here that the plaintiff came to the Court for ejectment of the defendant on various grounds. The main ground on which the suit ultimately survived and on which the parties adduced evidence with respect to bona fide requirement of the plaintiff. Learned first appellant Court after considering the entire evidence on record and meeting the reasoning of the learned trial Court upset the findings of the trial Court and held that the need of the plaintiff was bona fide and consequently allowed the appeal and decreed the suit. Therefore, the amendment in para 7 -A is sought to be introduced in the written -statement. The facts mentioned in this paragraph are that by the side of the disputed portion towards the road, there was an accommodation, which was with the Manager of Kambal Kendra. It had fallen vacant in. 1986 and it has 6 residential and an Angan (courtyard) which was sufficient for residential as well as office purpose of Surya Kumar. Thus, the need of Surya Kumar has been satisfied and the suit is not maintainable. This application has been moved on 20.7.94, though the accommodation fell vacant in 1986, according to the application itself. There is nothing for the applicant -appellant to show as to why the amendment sought was not moved earlier. It cannot be said that this fact came to light only when the application was moved or immediately before that. According to the defendant himself, the accommodation fell vacant in 1986 but the application was filed on 20.7.94. The contention of the learned counsel for the respondent is that it is now a new fact. It has been raised in the trial Court as well in the first appellate Court. If we peruse para 21 of the appellate Court's judgment, it shows that the argument raised before it appears to be a different argument, though Kambal Kendra does figure in it. The argument raised before the first appellate Court was that the accommodation which was vacated by Pyarelal -tenant was given on rent by the plaintiff to Kambal Kendra. The learned Court observed that this tact was also admitted by Manavir Prasad, but it was not asserted by the defendant as to whether it was residential or non -residential. It was further observed that it was not mentioned as to whether 5/6 rooms which were vacated by Pyarelal were of what type and measurements etc. were also not mentioned. The fact as to whether the Manager of the Kambal Kendra has vacated now and it has gone vacant or not has to be considered. It is certainly a new fact and hence the amendment sought in the written -statement by addition of para 7 -A must therefore be allowed. I therefore, allow the application filed under Order 6 Rule 17 CPC on payment of Rs. 200/ - as costs to be paid before the trial Court on the date the parties first appear there.