Satyapal Chopra vs Additional District Judge And ...
2021 Latest Caselaw 4060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 4
 

 
Case :- WRIT - A No. - 4854 of 2021
 

 
Petitioner :- Satyapal Chopra
 
Respondent :- Additional District Judge And Another
 
Counsel for Petitioner :- Ravi Anand Agarwal,Shreya Gupta
 

 
Hon'ble Vivek Kumar Birla, J.

1. Heard Ms. Shreya Gupta, learned counsel for the petitioner and perused the record.

2. Present petition has been filed challenging the impugned order dated 20.2.2021 passed by the Additional District Judge, Lalitpur (respondent no. 1) in Rent Appeal No. 3 of 2009 (Satyapal Chopra vs. Mahendra Kumar).

3. By the impugned order dated 20.2.2021 amendment application filed under Order 6 Rule 17 CPC filed by the landlord at the appellate stage was allowed by the lower appellate court after noticing the fact that the amendment in pleadings by substituting the paragraphs and adding the grounds in release application was permitted by this Court vide order dated 13.8.2018 passed in Writ -A No. 535 of 2018 (Shri Satypal Chopra vs. Shri Mahendra Kumar), however, since the amendment was being sought after a delay, therefore, the same was allowed by imposing cost of Rs. 1,000/-.

4. The release application was allowed by the prescribed authority on the ground of bona fide need of the landlord for opening a gift-item Shop. The appeal filed by the tenant was dismissed. The writ petition being Writ-A No. 534 of 2018 filed by the tenant was entertained and interim order was granted vide order dated 31.1.2018. Thereafter, the petition was allowed vide order dated 13.8.2018 on the concession given by the counsel for the landlord that he has no objection in case writ petition is allowed.

5. Thereafter, this amendment application was filed before the appellate court. Several paragraphs are being sought to be amended/substituted and added. Two paragraphs related to need of the landlord and one paragraph was with regard to subsequent developments i.e. purchase of property by the tenant in the year 2018. This application was contested by the tenant-petitioner by filing objections, however, the objections were rejected and since there was delay, the amendment application was allowed by imposing cost of Rs. 1,000/- and the appellate court fixed a date by observing that short dates will be fixed by the lower appellate court in the light of the order of this Court dated 13.8.2018 passed in Writ-A No. 534 of 2018.

6. Challenging the impugned order, submission of learned counsel for the petitioner, placing reliance on the judgement of Hon'ble Apex Court rendered in the case of Asgar & others vs. Mohan Varma & others, 2020 (16) SCC 230, is that in the present case principle of constructive res-judicata would apply and therefore, such amendment cannot be allowed. It is submitted that the grounds that are being sought to be amended now were, in fact, sought in the year 2005 and an affidavit was filed in 2009 that he need shop in question for his chamber for legal profession and were rejected but shop was released on the ground that the shop is needed for starting business of gift items, therefore, the same cannot be permitted now.

7. I have considered the submissions advanced by the learned counsel for the petitioner at length and perused the record.

8. To appreciate the controversy involved in the present case, it would be relevant to take note of the order passed by this Court in Writ-A No. 534 of 2018 (Shri Satyapal Chopra vs. Shri Mahendra Kumar) dated 31.1.2018, which is quoted as under:

"Heard Ms. Shreya Gupta, learned counsel for the defendant-petitioner/ tenant and Sri P.K. Jain, learned senior advocate assisted by Sri Abu Bakht, learned counsel for the plaintiff-respondent/ landlord.

On 24.01.2018, this petition was heard at length and after incorporating the facts of the case, an order was passed as under:

"Heard Shreya Gupta, learned counsel for the defendant-petitioner/tenant and Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the plaintiff-respondent.

Briefly stated facts of the present case are that House No.307/1 (New No.340/1), Katra Bazar, Lalitpur, was originally owned by one Sri Ratan Chandra Jain. In the said house there is a shop in which the defendant-petitioner is a tenant at a monthly rent of Rs.85/- since the year 1958. After the death of the aforesaid original owner, his wife Smt. Phoola Bai became landlord of the disputed shop, who died on 20.12.1999. Before her death she had executed a will dated 20.10.1998.

As per the aforesaid will, the plaintiff-respondent, who is 'Nati' of Sri Ratan Chandra Jain and Smt. Phoola Bai, became owner and landlord of the disputed house and accordingly, his name was also mutated in municipal records showing him to be the owner and landlord of the disputed house and the defendant-petitioner as tenant. He also apprised the defendant-petitioner that he is owner and landlord of the disputed shop. Consequently, the defendant-petitioner/tenant had sent him a money-order of Rs.850/- towards payment of rent from 18.12.1999 to 17.2.2000. The receipt of money-order has been filed by the plaintiff-respondent in evidence as Paper No.22-C, which bears the message of the defendant-petitioner for payment of rent admitting the plaintiff-respondent to be the owner and landlord. Thus, there is no dispute of landlord and tenant relationship between the plaintiff-respondent and the defendant-petitioner.

On 31.10.2000, the plaintiff-respondent filed an application under Section 21(1)(a) of U.P. Act 13 of 1972 for release of the disputed shop on the ground of his personal need for starting the business of gift items. He sated that he is an unemployed Law Graduate and has experience of trade in gift items, therefore, he is in bonafide need of the disputed shop.

During pendency of the release application, the plaintiff-respondent got himself enrolled in the year 2001 with U.P. Bar Council, Allahabad and started practising in District Court, Lalitpur. Thereafter, he filed an amendment application dated 16.8.2005, praying for amendment in paragraph-6 of the plaint, whereby he sought to amend the pleadings to the effect that he needs the disputed shop to establish his chamber as an Advocate. The application was rejected by the Prescribed Authority by order dated 22.4.2008 against which he filed a civil revision, which was dismissed by the District Judge,Lalitpur. Both these orders were challenged by the plaintiff-respondent in Writ Petition No.41688 of 2008 ( Mahendra Kumar Jain v. Prescribed Authority and another), which was dismissed by order dated 18.8.2008 giving liberty to the plaintiff-respondent/landlord to challenge the impugned order dated 22.4.2008 as well as the order dated 22.5.2008 in the writ petition, which may be filed against final judgment and order on the release application and the decision of appeal under Section 22 of the Act. The release application was directed to be decided expeditiously.

Thereafter, the plaintiff-respondent filed his affidavit dated 17.2.2009 in evidence. In paragraph-7 of the affidavit he stated that he is an advocate and is practising in Civil, Revenue and Criminal matters and has no business except the legal profession. He reiterated his need of the disputed shop for his chamber for legal practice. Another affidavit dated 16.10.2008 was also filed making similar averments.

By judgment dated 31.3.2009, the aforesaid release application has been allowed on the ground that the plaintiff-respondent/landlord is in bonafide need of the disputed shop to start his business of gift items. The Rent Control Appeal No.03 of 2009( Satpal Chopra v. Mahendra Kumar) filed by the defendant-petitioner/tenant was dismissed by the impugned judgment dated 14.12.2017 on the ground that the plaintiff-respondent needs the disputed shop for starting business of gift items.

Learned counsel for the defendant-petitioner submits that the plaintiff-respondent has set up his bonafide need for opening his chamber in the disputed shop as an advocate, therefore, the finding of bonafide need on the ground to start the business of gift items, is wholly without application of mind and without consideration to the evidences on record. Therefore, on this ground alone the impugned orders deserve to be set aside and the matter needs to be remanded for decision afresh on the question of bonafide need and comparative hardship. She submits that the defendant-petitioner is not disputing the landlordship of the plaintiff-respondent. The objection is only with respect to the findings on the point of bonafide need and comparative hardship.

In support of her submissions, she has relied upon the judgments of Hon'ble Supreme Court in the case of Prabha Arora and another v. Brij Mohini Anand and others, 2008 CAR210 (SC) (Paragraph 5) and judgment of this Court in Chand Ratan Laddha v. Additional District Judge and others 2012(3) ARC 349 ( paragraph Nos. 13,14 and 15).

Sri P.K. Jain, learned Senior Advocate prays for adjournment to complete his instructions.

As prayed, put up tomorrow."

Today, Sri P.K. Jain, learned senior advocate prays for and is granted three weeks' time to file counter affidavit. Defendant-petitioner shall have a week thereafter to file rejoinder affidavit.

List after four weeks before the appropriate court.

Considering the facts of the case as briefly noted in the afore-quoted order dated 24.01.2018, I find that the defendant-petitioner has made out a case for interim relief. Therefore, as an interim measure, it is provided that till the next date of listing, the effect and operation of the impugned judgment and order dated 14.12.2017 in Rent Appeal No.3 of 2009 (Satyapal Chaupra vs. Mahendra Kumar) passed by the Additional District Judge (Fast Track Court-I), Lalitpur and the judgment and order dated 31.03.2009 in P.A. Case No.12 of 2000 (Mahendra Kumar vs. Satyapal Chaupra) passed by the Prescribed Authority/ Civil Judge (S.D.) Lalitpur shall remain stayed."

(Emphasis supplied)

9. Thereafter the aforesaid petition was allowed on 13.8.2018 with liberty to both the parties to amend their pleadings. The said order dated 13.8.2018 is also quoted as under:

"Heard Ms. Shreya Gupta, learned counsel for the petitioner and Sri Pramod Kumar Jain, Senior Advocate assisted by Sri Maha Prasad, learned counsel for the respondent.

The present writ petition has been filed for quashing the judgment and order dated 14.12.2017 passed by the Additional District Judge/Fast Track Court 1st, Lalitpur in Rent Appeal No.3 of 2009 and judgment and order dated 31.03.2009 passed by the Prescribed Authority/Civil Judge (Senior Division), Lalitpur in Rent Case No.12 of 2000.

At the very out set Sri P.K.Jain, learned Senior Counsel states that he has no objection in case the writ petition is allowed.

However in the light of the arguments advanced before this Court regarding remanding back the matter, this Court is of the opinion that since the lower appellate court is the final court on facts and the suit is pending since the year 2000, therefore, it would be appropriate to remand back the matter to the lower appellate court with liberty to both the parties to amend their pleadings, if they so desired and lead evidence on all the issues as the parties may be advised.

Accordingly, the present writ petition stands allowed. The impugned orders dated 14.12.2017 and 31.3.2009 are quashed. The matter is remitted back to the lower appellate court below for decision afresh on its own merit. The lower appellate court is directed to provide full opportunity of hearing to both the parties as indicated above.

Since the release application was filed in the year 2000 it would be appropriate that the lower appellate court shall decide the same as expeditiously as possible by fixing short dates and without granting any adjournment."

(Emphasis supplied)

10. In the order dated 31.1.2018, wherein the order dated 24.1.2018 was quoted, this Court has noticed the fact that ultimately the amendment application dated 16.8.2005, though rejection whereof by the prescribed authority was upheld by the revisional court, was kept alive i.e. to be challenged while challenging the final order (obviously, if the need so arise) and that the affidavit 17.2.2009 was filed in evidence wherein it was stated that the landlord is a practising advocate and he has no other means of earning except the legal profession. Contention of learned counsel for the tenant that the release order suffers from non-application of mind as the release application was filed for the need of shop of gift items whereas, the affidavit has come that the shop is required for legal profession, was also noted. Subsequently, the petition was allowed on the concession given by learned counsel for the landlord that he has no objection in case writ petition is allowed. In the light of the arguments advanced before this Court in that petition, the matter was remanded to the lower appellate court with liberty to both the parties to amend the pleadings as the lower appellate court is the final court on facts and the suit is pending since the year 2000. It may also be noticed that the release application was allowed by the prescribed authority and appeal was filed by the tenant and thus, the landlord obviously, had no occasion and reason to challenge the rejection of amendment application, as left open by this Court while challenging the final order as the final order of the prescribed authority, was in his favour.

11. In such view of the matter, it is not in dispute that the amendment application insofar as the first two paragraphs are concerned, was filed pursuant to the order of this Court. Third amendment is also related to subsequent developments and liberty was granted to both the parties to amend their pleadings. It is not in dispute that both the parties are at liberty to lead their evidence on the issue as already permitted by this Court as noted above.

12. I have gone through the proposed amendments which have been allowed by the court below.

13. Learned counsel for the petitioner has placed reliance on the of Asgar (supra) to contend that principle of constructive res-judicata applies in the present case and hence the proposed amendment cannot be permitted. To deal with the same, it would be appropriate to take note of relevant extract of Section 11 of Civil Procedure Code together with Explanation I and IV, which is quoted as under :

"11. Res judicata- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation IV- Any matter which might and ought to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

(Emphasis supplied)

14. It would also be relevant to take note of paragraphs, 30, 36, 37, 38, 39, 46, 47, 48 of the judgement in Asgar (supra) are quoted as under:

"30. Under Section 11, a matter which has been directly and substantially in issue in a former suit between the same parties or between parties litigating under the same title cannot be raised before a court subsequently, where the issue has been heard and finally decided by a competent court. Explanation IV enacts a deeming fiction. As a result of the fiction, a matter which "might and ought" to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and substantially in issue in such a suit. In other words, Explanation IV is attracted when twin conditions are satisfied: the matter should be of a nature which might and ought to have been made a ground of defence or attack in a former suit. S. Rangarajan, J. (as the learned Judge then was) sitting as a Single Judge of the Delhi High Court in Delhi Cloth & General Mills Co. Ltd v Municipal Corporation of Delhi, 1975 SCC OnLine Del 29 noticed this feature :

"35...The words employed -- might and ought -- are cumulative; they are not in the alternative. It is a well-established rule that any plea which if taken would have been inconsistent with or destructive of the title in the earlier suit is not a matter which ought to be raised therein because even though it might also have been raised in the alternative. This aspect was explained by the Judicial Committee of the Privy Council in Kameswar Pershad v. Rajkumari Ruttan Koer (I.L.R. 20 Calcutta 79 at p. 85). The possibility of merely raising it as a ground of attack or defence, at least in the alternative, is alone not sufficient; the test is one which is more compulsive, namely, that the said plea "ought" to have been taken as a ground of attack or defence. These features would of course depend upon the particular facts of each case."

The words "might and ought" are used in a conjunctive sense. They denote that a matter must be of such a nature as could have been raised as a ground of defence or attack and should have been raised in the earlier suit.

36. Mr Giri urged, relying upon the above decision of the House of Lords that in construing the expression "might and ought", it is necessary for the court to bear in mind the fundamental distinction between res judicata and constructive res judicata. He urged that whereas the former encompasses a matter which was directly and substantially in issue in a previous suit between the same parties and has been adjudicated upon, the latter brings in a deeming fiction according to which a matter which might and ought to have been advanced in a previous suit would be deemed to be directly and substantially in issue. He therefore urges that a degree of circumspection must be exercised in the application of the principle of constructive res judicata.

37. We are not inclined to decide this question on a priori consideration, for the simple reason that under the CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future.

38. In State of U P v Nawab Hussain, (1977) 2 SCC 806, a three-judge Bench of this Court noted that the two principles of res judicata and constructive res judicata seek to achieve the common objective of assuring finality to litigation. P. N. Shinghal, J. observed:

"3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council (1939) 2 KB 426 at p. 437, it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.

4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard (1947) 2 All ER 255) :

"I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."

39. A Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v State of Maharashtra, (1990) 2 SCC 715 referred to the decision of a three judge bench of this Court in Forward Construction Co. v Prabhat Mandal, (1986) 1 SCC 100 and noted the following position in law:

"20...an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence..."

46. In view of the settled position in law, as it emerges from the above decisions, it is evident that the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order 21 Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order 21 Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order 21 Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103.

47. The claim which the appellants have now sought to assert for compensation under Section 4 (1) of the Act of 1958 is intrinsically related to the claim which they asserted in the earlier round of proceedings to remain in possession. Indeed as we have seen, the appellants seek to resist the execution of the decree on the ground that they are entitled to continue in possession until their claim for compensation is determined upon adjudication and paid. Such a claim falls within the purview of Explanation IV to Section 11 of the CPC. Such a claim could certainly have been made in the earlier round of proceedings. Moreover, the claim ought to have been made in the earlier round of proceedings. The provisions of Order 21 Rules 97 to 103 constitute a complete code and provide the sole remedy both to parties to a suit and to a stranger to a decree. All questions pertaining to the right, title and interest which the appellants claimed had to be urged in the earlier Execution Application and adjudicated therein. To take any other view would only lead to a multiplicity of proceedings and interminably delay the fruits of the decree being realized by the decree holder.

48. This view which we have adopted following the consistent line of precedent on Rules 97 to 103 of Order 21 is buttressed by the provisions of the Act of 1958. A claim under Section 4 (1) has to be addressed to the court which passes a decree for eviction. In the present case, the appellants are strangers to the decree. They were required to get that claim adjudicated in the course of their Execution Application which was referable to the provisions of Order 21 Rule 97. Having failed to assert the claim at that stage, the deeming fiction contained in Explanation IV to Section 11 is clearly attracted. An issue which the appellants might and ought to have asserted in the earlier round of proceedings is deemed to have been directly and substantially in issue. The High Court was, in this view of the matter, entirely justified in coming to the conclusion that the failure of the appellants to raise a claim would result in the application of the principle of constructive res judicata both having regard to the provisions of Sections 4 and 5 of the Act of 1958 and to the provisions of Order 21 Rules 97 to 101 of the CPC."

15. Perusal of Section 11, Explanation I and IV clearly reflects that existence of a "former suit" which has been 'heard and finally decided' is mandatory, whereas in the present case appeal is pending, which is in continuation of the original suit/release proceedings, wherein due to rejection of amendment application, the amended grounds (as permitted now) were neither in issue nor were heard and finally decided. Thus, in my opinion, the mandatory element of 'former suit' 'heard and finally decided' is missing in respect of the amendment allowed. Therefore, the Explanation IV to Section 11 CPC, which also requires 'former suit' would also not be attracted in this case.

16. Further, while allowing the petition being Writ-A No. 534 of 2018 filed by the tenant, the judgements of prescribed authority and the appellate authority both were quashed and amendment in pleading was permitted at appellate stage and as the appellate court is the final court on facts, considering the pendency of release application since the year 2000, the lower appellate court was directed to decide after affording an opportunity of hearing to both the parties afresh. Thus, stage of proceedings being 'former' in nature and 'heard and finally decided' has not come as yet so as to attract Section 11 CPC itself.

17. In Dunlop India Limited vs. A.A. Rahna and another, (2011) 5 SCC 778 it was held that same ground of eviction but based on different cause of action is not barred by res-judicata, paragraph 35 whereof is quoted as under:

"35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June, 1998. In the second set of petitions, the period of non occupation commenced from September, 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the Appellate Authority because till 2.8.1999, the premises were found kept open and alive for operation. The Appellate Authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September, 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K. Agarwal on 1.10.2001 that the company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1.10.2001; that no activity had been done in the premises with effect from 1.10.2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause."

(Emphasis supplied)

18. Similarly, in Suraj Mal vs. Radheyshyam, (1988) 3 SCC 18 it was held that bona fide need may arise after eviction suit and decision thereon, paragraph 8 whereof is quoted as under:

"8. The learned counsel for the appellant Sunderbai contended that in substance the case of the plaintiff-respondent in the earlier eviction suit and in the present suit is the same and since the earlier suit was dismissed the present suit also should be dismissed. The High Court in paragraph 4 of its judgement pointed out that the nature of requirement pleaded in the earlier suit was different from that in the present suit. The first appellate court while deciding the issue against the defendant observed that the bona fide need must be considered with reference to the time when a suit for eviction is filed and it cannot be assumed that once the question of necessity is decided against the plaintiff it has to be assumed that he will not have a bona fide and genuine necessity even in future. We are in agreement with the views as expressed by the two court."

(Emphasis supplied)

19. In Krishna Mohan vs. Krishna Swaroop, 2016 (1) ARC 300, it was held by this Court that even if nature of proposed business is not decided by the landlord, still need is bona fide.

20. Object of discussing the above law is to highlight the scope of applicability of Section 11 CPC itself, which, obviously includes principle of constructive res-judicata, in rent laws proceedings.

21. I have noted the relevant paragraphs of Asgar (supra) to record that there is no quarrel with the settled law, however, for the reason recorded above the same are of no help to the petitioner.

22. In the totality of the facts and circumstances of the case, more so, once this Court has allowed the parties to amend their pleadings, the case of Asgar (supra), being mainly on interpretation of Order 21 Rule 91-103 CPC, is also distinguishable on facts where a third party who was stranger to the decree was involved at the time of execution proceedings and it was about the claim to receive compensation in land acquisition proceedings.

23. In the present case, the appeal is pending which is in continuation of the proceedings, where a final finding of facts is yet to be recorded between the original parties to the suit/ release application. Further, release application was filed in the year 2000 and it is only during pendency of the proceedings, the applicant got himself enrolled as an advocate, therefore, due to change in the facts and circumstances of the case, this subsequent event should not and ought not be prevented to come on record. It may also be noticed that since earlier amendment application dated 16.8.2005 to bring on record the change in circumstance that now release of shop is required for establishing chamber as an advocate was rejected, the prescribed authority once found the bona fide need, had, probably no other option but to release the shop on the ground taken or say, existing on record ( i.e. need for opening gift item shop).

24. In such view of the matter, I do not find any good ground to interfere in the order impugned herein.

25. However, parties are liberty to lead the evidence as permitted by this Court vide order dated 13.8.2018 passed in Writ-A No. 534 of 2018.

26. Present petition is devoid of merit and is, accordingly, dismissed with the observations as made above.

27. No order as to costs.

Order Date : 19.3.2021

Abhishek