Subhash Nago Shimpi v. Gangabai Motilal Kayashta & Ors.

Judgment

1. Rule. Rule is made returnable forthwith. Mr. Patil, learned counsel waives service for the Respondents. By consent, immediately taken up for final hearing.

Heard learned counsel appearing on behalf of the respective parties. Since parties to both the petitions are same and the orders impugned in both the petitions are passed in the same proceeding, namely, Regular Civil Appeal patilsr WP – 3635 / 12 No.75 of 2006 from the file of Ad-hoc. District Judge-3, Malegaon, I propose to dispose of both the writ petitions by this common order.

3. The Petitioner is the tenant and the Respondent is the landlord. The Respondent filed suit under the Rent Act against the Petitioner for eviction from the suit premises – a shop, on the ground of reasonable and bonafide requirement. Suit was decreed. The Petitioner approached the lower appellate Court by filing appeal, being RCA No.75 of 2006. During the pendency of this appeal, two applications were taken out; one at Exhibit-92 for permission to lead additional evidence under Order-XLI Rule-27 of the Code of Civil Procedure, 1908, and; another one at Exhibit-95 for permission to amend the written statement. Both the applications are rejected and therefore the Petitioner is before this Court.

4. Mr. Sathye, learned counsel for the Petitioner submitted that so far as application filed under the provisions of Order-XLI Rule-27 of the Code of Civil Procedure, 1908 is concerned, the Petitioner propose to produce 14 documents on record. The documents at serial Nos.1 to 3 are the photographs of one closed house. The document at Serial patilsr WP – 3635 / 12 No.4 is the certificate issued by the Govt. Labour Officer under the Right to Information Act. The documents at Serial Nos.5 to 14 are the certified copies of the proceedings in RCS No.302 of 1967 and 110 of 1971. Mr. Sathye, learned counsel for the Petitioner fairly conceded that documents at serial Nos. 1 to 3 (photographs) may not be relevant for the purpose of disposing of the appeal. He, however, insisted that documents at serial Nos.4 to 14 ought to have been taken on record under XLI Rule-27 of the Code of Civil Procedure, 1908. He makes a statement that if these documents are taken on record, the Petitioner will not insist for additional oral evidence to prove those documents or remand the matter back on that count.

4. Mr. Patil, learned counsel for the Respondent, on the contrary, supported the impugned orders. He submitted that certified copies of the documents at serial Nos.5 to 14 were available to the Petitioner in the year 2001 itself and despite this, they waited till the disposal of suit and now when appeal is fixed for final arguments, applications are filed with intention to protract the hearing of appeal. He submitted that document at serial no.4 was also obtained in the year 2009 and the Petitioner has not given satisfactory explanation for patilsr WP – 3635 / 12 delay.

5. Having heard learned counsel for the respective parties and having gone through the impugned orders, I find some merit in the petitions. Suit premises is a shop and given to the Petitioner by the Respondent on lease basis for commercial use. Suit is filed for eviction in respect of the suit premises only on the ground of reasonable and bonafide requirement. Suit is decreed and appeal is pending in the lower appellate Court.

6. By filing application at Exhibit-92, under the provisions of Order-XLI Rule-27, the Petitioner wanted to produce 14 documents out of which learned counsel for the Petitioner conceded that he is not insisting for production of photographs which are at serial Nos.1 to 3. Document at serial no.4 is the certificate given by the Govt. Labour Officer, Malegaon. This certificate is given on 22nd December 2009 in response to query by the Petitioner under the RTI Act. The certificate shows that the original landlord alongwith his son- in-law was doing business in the premises, namely, house bearing No.67, Shani Chawk, Somvar Ward, Malegaon, however, the same is closed since the year 2008. patilsr WP – 3635 / 12

7. So far as the documents at serial Nos.5 to 14 are concerned, these are the depositions of the original landlord in RCS No.302 of 1967 and 110 of 1971. It is the case of the Petitioner that these depositions show that the Respondent got vacant possession of some commercial premises. I, prima facie, find that these documents show that some other commercial premises are available to the Petitioner apart from the suit premises. As stated above, suit is decreed only on the ground of bonafide and reasonable requirement, these documents therefore go to the root of the matter.

8. It is true that document at serial no.4 was available to the Petitioner in the year 2009 and other documents were available in the year 2001. The Petitioner in this regard has given explanation that these documents were initially misplaced and same were found after various attempts and thereafter application is immediately filed. This explanation for condoning the delay is not accepted by the appellate Court. I also find it difficult to accept the same.

9. The Petitioner's application at Exhibit-92 does not fall either under clause (a) or (aa) of Rule 27 of Order-XLI of CPC, 1908. I am, however, of the considered opinion that patilsr WP – 3635 / 12 clause (b) of Rule-27 Order-XLI is attracted in the present case. The documents mentioned above are no doubt relevant documents. The said documents go to the root of the matter and therefore in order to enable to have the fair trial of the case, same are required to be examined by the learned appellate Court. As observed above, there is a delay in seeking production of the documents and this delay is not sufficiently explained, however, in my view, the production of the documents simplicitor will not cause any prejudice to the Respondent in the light of statement of learned counsel for the Petitioner that the Petitioner will not insist for additional oral evidence or remand of the matter back to the learned trial Court on that count. Even assuming for the sake of arguments that there would be prejudice to the Respondent, in that case same can be compensated by directing the Petitioner to pay costs to the Respondent.

10. So far as the application at Exhibit-95 is concerned, the Petitioner wants to amend the written statement to bring on record that the Respondent has acquired vacant possession of the premises other than the suit premises during the pendency of the suit and appeal. It is well settled patilsr WP – 3635 / 12 law that the subsequent event can be brought on record. The amendment sought is not contrary to the original pleadings of the Petitioner. It is in fact consistent with the original pleadings. The Courts normally are required to adopt the liberal approach in granting amendment in the pleadings and especially in the written statement. The present suit was filed prior to the amendment of 2002 in the Code of Civil Procedure,

1908. Therefore, the proviso to Rule-17 Order-VI of the Code of Civil Procedure, 1908 will not be applicable to the present case. Therefore, the pleadings can be amended during the pendency of the appeal also.

11. The delay cannot be the sole criteria to reject the amendment application. The amendment is also necessary as I am inclined to allow the application of the Petitioner at Exhibit- 92 filed under the provisions of Order-XLI Rule-27 of the Code of Civil Procedure, 1908. The Respondent, however, is always at liberty to deal with the proposed amendments made in the written statement.

12. In the light of above discussion, the impugned orders will not sustain. Petitions are accordingly disposed of by passing following order. patilsr WP – 3635 / 12 -: O R DE R :- (I) Both the impugned orders are quashed and set aside and rule is made absolute in terms of prayer clause (b) in both the petitions, subject to the Petitioner paying costs of Rs.5,000/- to the Respondent within four weeks from today. (II) The statement of the Petitioner that he will not insist for recording of additional oral evidence and remand of the matter for that purpose is recorded and accepted. (III) Parties shall appear before the learned appellate Court on 19th November 2012. The Petitioner shall carry out necessary amendment on that date. (IV) Since proceedings relate back to the year 2003 the learned appellate Court is requested to hear and dispose of the appeal expeditiously. (RANJIT MORE, J.) patilsr