Back
RAJASTHAN HIGH COURT
(JAIPUR BENCH)
Prashant Kumar, Agarwal, J.
Shyam Sunder —Appellant
versus
Prakash Chand —Respondent
S.B. Civil Second Appeal No. 91 of 2012
Decided on 27.06.2012
Counsel for the Parties:
For the Appellant:Mr. Peush Nag, Advocate.
For the Respondent:Mr. Shyam Kant Sharma, Advocate.
IMPORTANT POINT
Landlord can incorporate new ground of eviction in eviction petition by way of amendment.
Headnote:(i) Civil Procedure Code, 1908—Order 22 Rule 10 read with Sections 96 and 104—Eviction petition—Substitution—Only those orders can be challenged in a regular appeal against which appeal under Order 104 CPC is not maintainable—But if appeal is maintainable against order under Section 104 read with Order 43 same cannot be challenged in regular appeal—As appeal was maintainable against order passed in substitution application and the same was not challenged by filing appeal, appellant was not entitled to challenge the same in appeal filed against decree under Section 96 CPC. (Para 6(i))
(ii) Eviction petition—Production of Photostat copy of decree—It would have been better for respondent to produce certified copy of same but as no objection in respect thereof was taken by appellant at appropriate time and trial Court passed order of substitution on the basis of Photostat copy same cannot be challenged now—Objection regarding mode of proof of a fact cannot be subsequently raised if it was not raised at proper time—If such objection would have been taken by appellant at proper time, it was open for respondent to produce certified copy of decree—Ground raised by appellant being not legally tenable is rejected. (Para 6(ii))
(iii) Eviction petition—Amendment in original plaint—A new ground of eviction can be taken by landlord at any stage of proceedings and such amendment does not adversely affect cause of action already taken by landlord in suit—It is possible in a case that cause of action in respect of a new ground of eviction arises subsequently after institution of suit during pendency of suit and if it is so amendment in plaint on the basis of such new ground of eviction cannot be refused only on ground that at some earlier point of time undertaking was given by landlord that he would not seek amendment in plaint—It cannot also be said that by his conduct of giving undertaking respondent waived his right of seeking amendment in plaint and he was estopped to seek amendment incorporating a new ground of eviction on the basis of reasonable and bona fide necessity or any other ground. (Para 6(iii))
(iv) Civil Procedure Code, 1908—Order 6 Rule 17—Amendment of plaint—Eviction petition—It is not the law that in each and every case irrespective of nature of amendment if an amendment is effected in plaint, it relates back to original date of institution of suit and facts added by way of amendment in plaint were there from very inception—It cannot be held that new ground of eviction taken on the basis of bona fide and reasonable necessity of respondent should be deemed to be present in original suit. (Para 6(vi))
Result: Appeal and stay application dismissed.
Prashant Kumar Agarwal, J.— The defendant-appellant has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the Impugned judgment and decree dated 10.1.2012 passed by the Additional District Judge (Fast Track) No.2, Beawar (District Ajmer) in Civil Regular Appeal No.1/2009 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 18.8.2006 passed by the trial Court i.e. Civil Judge (Junior Division) No.2, Beawar (District Ajmer) in Civil Suit No. 199/1998 whereby the trial Court decreed the suit for eviction filed by the plaintiff respondent.
2. Brief relevant facts for the disposal of this appeal may be stated as below:
(i) Originally the suit for eviction from the suit shop was filed by Shri Nathmal, elder brother of plaintiff-respondent Shri Prakash Chandra, on 2.7.1998 in the trial Court with the averment that the tenancy commenced with effect from 1.6.1995 and the appellant is liable to be evicted on the grounds of default in payment of rent, subletting, damage caused to the suit shop and nuisance.
(ii) Written statement was filed by the appellant on 1.9.1999 and grounds taken in the plaint were specifically denied. Rejoinder to the written statement was also filed by the original landlord on I 1.5.2000.
(iii) On 13.3.2001 an application under Order 22 Rule 10 CPC was filed by the present respondent stating therein that by virtue of a consent decree dated 7.1.1999 passed on the basis of compromise the suit shop has come in sole ownership of him and since then he has become landlord of the appellant in respect of the suit shop. It was prayed in the application that he may be substituted in place of the original landlord Shri Nathmal. Reply to the application was filed by the appellant on 2.6.2001 and the trial Court after hearing both the parties allowed the application vide order dated 28.8.2001. It is an admitted fact that the order dated 28.8.2001 was not challenged by the appellant at that stage of the proceedings.
(iv) Another’ application under Order 6 Rule 17 CPC for amendment in the plaint was filed by the present respondent on 9.4.2001 and it was prayed that the suit shop is bonafidely and reasonably required by him for his use and occupation and the pleadings to that effect may be added in the original plaint. Reply to the application was filed by the appellant on 11.5.2001 contesting the claim made by the respondent and the trial Court after hearing both the parties allowed the application for amendment vide order dated 23.10.2002. It is an admitted fact that that order was also not challenged by the appellant at that stage of the proceedings.
(v) In consequence of the orders so passed by the trial Court the present respondent filed amended plaint on 22.11.2002 and appellant also filed amended written statement on 2.1.2003 and on the basis of the pleadings necessary issues were framed by the trial Court on 21.1.2003. It is to be noted that no specific issue was framed in regard to partial eviction from the suit shop.
(vi) Still another application was moved by the present respondent on 20.3.2006 under Order 14 Rule 5 CPC for framing of additional issues as mentioned in the application. Reply was not filed by the appellant to the application and that application was not separately decided by the trial Court.
(vii) In the meanwhile both the parties produced oral as well as documentary evidence in support of their respective case. On 22.7.2006 none appeared on behalf of both the parties and the trial Court made an order to proceed further under Order 17 Rule 2 CPC on the ground that evidence has already been produced by the parties and the case was posted for judgment on 29.7.2006.
(viii) On 29.7.2006 the judgment was not delivered but counsel for both the parties appeared on 31.7.2006 and arguments were re-heard by the trial Court and ultimately judgment and decree was passed on 18.8.2006 whereby the suit filed by the res
