2022 Supreme(Raj) 2901

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Sudesh Bansal, J.
Kalicharan & Ors. – Appellant
Versus
M/s. Sacheti Brothers & Anr. – Respondent
S.B. Civil Second Appeal No. 113/2010
Decided On : 13-09-2022

Headnote:

EVICTION SUIT - GROUND OF NON-USER - AMENDMENT OF PLAINT - SECTION 13(1)(J) OF THE RAJASTHAN PREMISES (CONTROL OF RENT AND EVICTION) ACT, 1950 - COURT'S DISCRETION TO ALLOW AMENDMENT - FACTORS TO BE CONSIDERED - SUBSTANTIAL QUESTIONS OF LAW - PERMISSIBILITY OF RE-APPRAISAL OF EVIDENCE IN SECOND APPEAL - CONCURRENT FINDINGS OF FACT - INTERFERENCE BY HIGH COURT.

Fact of the Case:

Plaintiff-landlord instituted a civil suit for eviction of defendant-tenants from the rented shop on the ground of non-user for a continuous period of six months preceding the date of suit, as provided under Section 13(1)(j) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (the Act). The trial court allowed the plaintiff's application to amend the plaint to add the ground of non-user, and the first appellate court upheld the order. The defendants challenged the order allowing the amendment and the decree for eviction passed on the ground of non-user by way of a second appeal.

Finding of the Court:

1. The court held that the trial court exercised its discretion in allowing the amendment of the plaint within the parameters of law and that the order did not cause any prejudice to the defendants. The court also held that the date of suit for the purpose of analyzing the ground of non-user was the date on which the application for amendment was filed and the amended plaint was produced on record, and not the date of the original suit. 2. The court further held that the concurrent findings of fact recorded by the trial court and the first appellate court that the shop in question remained closed and was non-used for a continuous period of six months preceding the date of filing the amended suit were not perverse, based on misreading/non-reading of evidence, or based on without evidence, and therefore, did not warrant interference.

Issues: 1. Whether the trial court erred in allowing the plaintiff's application to amend the plaint to add the ground of non-user. 2. Whether the date of suit for the purpose of considering the ground of non-user under Section 13(1)(j) of the Act was the date of the original suit or the date of the amended suit. 3. Whether the concurrent findings of fact recorded by the trial court and the first appellate court that the shop in question remained closed and was non-used for a continuous period of six months preceding the date of filing the amended suit were perverse or based on misreading/non-reading of evidence.

Ratio Decidendi: 1. The court held that the trial court has the discretion to allow or disallow an application for amendment of pleadings, and that such discretion should be exercised with care and caution, considering factors such as whether the amendment is imperative for proper and effective adjudication of the case, whether the application is bona fide or mala fide, whether the amendment would cause prejudice to the other side which cannot be compensated adequately in terms of money, whether refusing amendment would lead to injustice or multiple litigation, whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case, and whether a fresh suit on the amendment claims would be barred by limitation on the date of application. 2. The court also held that the date of suit for the purpose of considering the ground of non-user under Section 13(1)(j) of the Act is the date on which the application for amendment was filed and the amended plaint was produced on record, and not the date of the original suit, as the ground of non-user was not available to the plaintiff at the time of filing the original suit but arose during the pendency of the suit.

Final Decision: The second appeal was dismissed, and the decree for eviction passed by the trial court and upheld by the first appellate court was affirmed. The defendants were granted three months' time to vacate and hand over the peaceful possession of the rented shop to the plaintiff-landlord, subject to payment of arrears of rent/mesne profit, if any, and the future mesne profit till handing over the possession.