Smt. Kamlesh Jain W/O Late ... vs Pankaj Jain S/O Shri Aadesh Kumar ...
2022 Latest Caselaw 3572 Raj/2

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 6749/2022

1.       Smt. Kamlesh Jain W/o Late Kanhaiyalal Jain, R/o Chudi
         Market Alwar (Deceased)
1/1.     Satish Kumar Jain S/o Late Shri Kanhaiya Lal, Aged About
         60 Years, R/o Of Chudi Market, Alwar
½.       Anil Kumar Jain S/o Late Shri Kanhaiya Lal, Aged About
         58 Years, R/o Chudi Market, Alwar.
                                                                    ----Petitioners
                                     Versus
1.       Pankaj Jain S/o Shri Aadesh Kumar Jain, R/o Plot No. 1
         Hope Circus Alwar. Tehsile And District Alwar Raj.
2.       Praveen Kumar Jain S/o Late Kanhaiya Lal Jain,
3.       Nirmal Jain S/o Late Kanhaiya Lal Jain,
4.       Ravindra Kumar Jain S/o Late Kanhaiya Lal Jain,
5.       Mahaveer Jain S/o Late Kanhaiya Lal Jain,
6.       Chandraprakash Jain S/o Late Kanhaiya Lal Jain,
7.       Smt. Asha W/o Manoj Jain D/o Shri Kanhaiya Lal Jain,
         Respondents No.2 to 7 are Resident Of Chudi Market,

Alwar Raj.

                                                                  ----Respondents


For Petitioner(s)          :     Mr. Mohit Gupta
For Respondent(s)          :     Mr. Bipin Gupta



       HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                                      Order

06/05/2022

This writ petition under Article 227 of the Constitution of

India has been filed by the petitioners/tenants against the order

dated 21.04.2022 passed by learned Appellate Rent Tribunal,

Alwar in Civil Cross Appeal (Rent) No.39/2020 whereby, an

(2 of 6) [CW-6749/2022]

application filed by them under Order 6 Rule 17 CPC seeking an

amendment in the reply, has been dismissed.

The facts in brief are that the respondent No.1/landlord filed

a rent eviction application against the petitioners and proforma

respondents No.2 to 8 under Section 9 of Rajasthan Rent Control

Act, 2001 (for brevity, "the Act of 2001") seeking eviction on the

grounds of reasonable and bona fide necessity and acquisition of

alternative accommodation. The learned Rent Tribunal, vide its

judgment dated 19.03.2020, issued recovery certificate qua

acquisition of alternative accommodation and decided the issue of

reasonable and bona fide necessity against the landlord. The

judgment dated 19.03.2020 was assailed by the petitioners by

way of an appeal wherein the respondent No.1 filed his cross

objections. In the cross objections, the petitioners filed an

application under Order 6 Rule 17 CPC seeking amendment in the

reply on account of subsequent event, i.e., filing of an application

by the wife of the respondent No.1 under Section 12 of the

Domestic Violence Act, 2005 (for brevity, "the Act of 2005") with

certain averments touching the issue of a reasonable and bona

fide necessity. This application has been dismissed by the learned

Appellate Rent Tribunal vide its order dated 21.04.2022, impugned

herein.

Assailing the order, learned counsel for the petitioners

contended that the learned Appellate Rent Tribunal erred in failing

to appreciate that facts sought to be incorporated in the reply

arose on account of subsequent event having material bearing on

the issue of reasonable and bona fide necessity. He further

submitted that in support of additional evidence sought to be

placed on record alongwith their application under Order 41 Rule

(3 of 6) [CW-6749/2022]

27 CPC, existence of supporting pleading was necessary. Learned

counsel, relying upon judgments of this Court in the cases of

Ravindran Vs. Rent Tribunal, Bhilwara in S.B Civil Writ

Petition No.9229/2009 & Naimuzzama Khan Vs. Shaukat Ali

& Ors. in S.B. Civil Writ Petition No.6186/2015, submitted

that in case their application under Order 6 Rule 17 CPC does not

find favour, they may be permitted to bring the subsequent event

on record by way of an affidavit with liberty to the respondent

No.1 to file counter affidavit which may be considered by the

learned Appellate Rent Tribunal at the time of hearing of the

appeal. He, therefore, prayed that the writ petition be allowed and

the order impugned dated 21.04.2022 be quashed and set aside.

Per contra, learned counsel for the respondent No.1

submitted that the application filed by the petitioners does not

disclose any such subsequent event which can be said to have any

material bearing on the issue of reasonable and bona fide

necessity. He submitted that the petitioners have already stated

almost all the facts sought to be incorporated by way of the

amendment, in their reply to the original application. He submitted

that the application filed by the petitioners under Order 41 Rule 27

CPC for taking on record additional evidence is yet to be decided

and hence, presupposing that the same would be allowed, the

petitioners cannot be permitted to make amendment in the

pleadings in support thereof. He further submitted that it is a well

established legal position that reasonable and bona fide necessity

has to be adjudged on the position obtaining on the day the rent

application is filed and each and every subsequent event cannot

be permitted to be incorporated by way of an amendment. He,

therefore, prayed for dismissal of the writ petition.

                                          (4 of 6)               [CW-6749/2022]



     Heard. Considered.

In the rent eviction application filed by the respondent No.1

in the year 2015, he has expressed reasonable and bona fide

necessity of the suit shop for himself as well as for his wife. The

petitioners have specifically stated in their reply that business in

the adjacent shop, under the ownership of the respondent No.1,

was being carried out by himself in the name and style of

"Aadarsh Textiles" not by his mother as averred in the rent

eviction application. It is further averred therein that his wife is a

homemaker and the suit shop is not required for her business.

Now, the facts sought to be incorporated in their reply by way of

amendment application are to the effect that wife of the

respondent No.1 has filed an application under Section 12 of the

Act of 2005 wherein she has stated that the respondent No.1 was

carrying out business in the name of "Aadarsh Textiles", was

having a godown at home and an underground godown in Scheme

No.12, Alwar. It was further averred that in her application, she

has prayed for a separate residential accommodation and for a

rented premises to run her beauty parlour business. A perusal of

the application filed by the petitioners under Order 6 Rule 17 CPC

reveals that it is bereft of any averment that the facts stated to be

subsequent event and sought to be incorporated in the reply by

way of the amendment, have any material bearing on the

reasonable and bona fide necessity pleaded by the respondent

No.1. It simply avers that the amendment is necessitated on

account of subsequent event which is not sufficient to warrant

amendment in the reply at the appellate stage qua the reasonable

and bona fide necessity as it is trite law that the reasonable and

bona fide necessity has to be adjudged on the basis of position

(5 of 6) [CW-6749/2022]

existing on the day the rent eviction application is filed and each

and every subsequent event which does not have material bearing

on the issue, cannot be permitted to be incorporated by way of

amendment in the reply. As is apparent from the material on

record including the reply filed by the petitioners themselves to

the rent eviction application, the fact that the respondent No.1

was carrying out business in the adjacent shop in the name of

"Aadarsh Textiles" is not a subsequent event revealed from the

application filed by the wife of the respondent No.1. Having a

godown at home and an underground godown in Scheme No.12,

Alwar, does not appear to have any bearing on the issue and it is

not so pleaded also in the application. Further, it is not stated in

the application filed by the petitioners that either it is a

subsequent event or that they have come to know of these

godowns for the first time from the application filed by wife of the

respondent No.1. Similarly, the other averments made in the

application filed under the Act of 2005 do not constitute such

subsequent event which can be said to have material bearing on

the reasonable and bona fide necessity pleaded in the rent

eviction application wherein, the suit shop is stated to be required

for himself as also for his wife.

Contention of the learned counsel for the petitioners that in

case their application filed under Order 41 Rule 27 CPC is allowed,

it is necessary to have on record pleadings in support of additional

evidence, does not merit acceptance. The application is pending

consideration and presupposing that it shall be allowed, the

petitioners could not have been permitted to make amendment in

the reply. It is for the learned Appellate Rent Tribunal to decide the

(6 of 6) [CW-6749/2022]

course it would take in case the application filed by the petitioners

for taking additional evidence on record merits acceptance.

Learned counsel for the petitioners has failed to satisfy this

Court that the order dated 21.04.2022 suffers from any patent

jurisdictional error or perversity warranting interference of this

Court under its limited supervisory jurisdiction.

In view thereof, the writ petition is dismissed being devoid of

merit.

(MAHENDAR KUMAR GOYAL),J

PRAGATI/39

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