DWARKA PRASAD Vs. ADJ BHARATPUR

JUDGEMENT

(1.) THIS appeal has been preferred against the order dated 21.04.2005 passed by the learned Single Judge in SBCWP No. 1180/2005 by which the writ petition was dismissed wherein the appellant-tenant had challenged the order dated 07.01.2005 passed by the First appellate Court being the Court of Additional District & Sessions Judge No. 2, Bharatpur who had rejected the application of the defendant-appellant for amending the written statement at the appellate stage although the written statement had been filed in the suit before the trial Court.

(2.) THE essential details necessary to highlight the controversy, indicate that the respondent had filed a suit for eviction against the defendant-appellant for his evacuation on the ground of personal necessity. The suit was decreed by the trial court in favour of the plaintiff respondent against which the defendant-appellant had preferred an appeal before the Additional District and Sessions Judge No. 2 Bharatpur. During pendency of this appeal, the defendant-appellant filed an application for amending written statement on the ground that the respondent-landlord has built nine additional shops and, therefore, the said evidence be taken into consideration while deciding the appeal against the judgment and decree granted on the ground of bona fide personal necessity.

(3.) LEARNED counsel for the appellant submitted that without entering into the correctness of the order passed by the learned Additional District and Sessions Judge as to whether a writ petition could have been entertained or not against an interlocutory order passed by the first appellate Court, the plea of the defendant-appellant could have been sustained on account of the additional evidence in favour of the defendant that the plaintiff-respondent's suit on the ground of personal necessity was not tit to be decreed as he had constructed 9 more shops. The counsel for the appellant further stated that as per the ratio of the decision of the Supreme Court delivered in the matter of Adil Jamshed Frenchman (D) by Lrs. v. Sardar Dastur Schools Trust and Ors., 2005(1) RCR(Rent) 284 (SC), vide civil appeal No. 1210/2005 dated 14.02.2005, the defendant-tenant is entitled to file an application for adducing additional evidence in a tenancy matter even at the stage of appeal. however submitted that the judgment was delivered after rejection of his application or amendment in the written statement due to which he could not place reliance on the same.