TMI Blog2009 (12) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that Subhash Paliwal was not the owner of the suit shop room and the suit for eviction for the bonafide need of his son was not, therefore, maintainable. 2. After hearing the submissions made on behalf of the respective parties, the learned Civil Judge dismissed the said application. Subsequently, the petitioners herein filed their written statement on 8th December, 1998, denying the averments made in the plaint, but without making any averment with regard to the existence of the Will said to have been executed by Bhavani Shankar. Ultimately, by judgment and decree dated 2nd August, 2000, the learned Trial Court decreed the suit for eviction and recovery of rent in favour of the respondents, against which the petitioners preferred First Appeal on 28th August, 2000. 3. On 3rd August, 2002, the petitioners filed an application in the pending appeal under Order VI Rule 17 of the Code of Civil Procedure for amendment of the written statement to incorporate the submissions that in view of the Will purportedly executed by Bhavani Shankar, Subhash Paliwal was not the owner of the suit property and could not, therefore, ask for eviction of the petitioners therefrom for the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction of additional evidence if the Courts below had wrongly declined to admit the evidence or if the parties seeking to bring the documents on record failed to produce the same despite due diligence, or if the Appellate Court thought it appropriate to have the said document on record for a proper adjudication of the lis. Ms. Shobha urged that the High Court had failed to gauge the importance of bringing on record the certified copy of the Will by way of additional evidence and had erred in disallowing the petitioners' prayer for amendment of the written statement on the basis thereof, as it went to the very root of the petitioners' case that Subhash Paliwal had no right to maintain the suit jointly with Gopal Paliwal for eviction of the petitioners from the suit shop room for the bonafide need of the nephew of the exclusive owner. 7. Ms. Shobha submitted that as was held by this Court in Dondapati Narayana Reddy vs. Duggireddy Venkatanarayana Reddy [(2001) 8 SCC 115], amendment of pleadings should be liberally allowed, unless it is established that the result would cause such injustice and prejudice against the opposite side as could not be compensated by costs or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally, one of the circumstances which would be taken into consideration before an amendment was granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the Trial Court. Ms. Shobha also referred to the decision of this Court in Harcharan vs. State of Haryana [(1982) 3 SCC 408], where it was observed that amendment of pleadings relating to the main controversy should not be refused on mere technical grounds. 10. Ms. Shobha then contended that the appeal in the High Court was not maintainable under Order 43 Rule 1 CPC against an order passed either under Order 6 Rule 17 or Order 41 Rule 27 CPC. 11. Ms. Shobha concluded on the note that since by virtue of the Will executed by Bhavani Shankar, neither Subhash Paliwal nor his son had any ownership rights over the disputed shop room, the suit for eviction filed by Subhash Paliwal for the bonafide need of his son was not maintainable being hit by Section 13(1)(h)(i) of the 1950 Act. She urged that the High Court had exercised its jurisdiction erroneously in interfering with the order of the Appellate Court. 12. Appearing for the Respondents, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e then submitted that having admitted the relationship of landlord and tenant in their written statement, the Petitioners could not resile from their admissions and that too at the appellate stage. It was submitted that the application for amendment was not bonafide and had been correctly dismissed by the High Court. Mr. Keshote urged that once the prayer made by the Petitioners to get the certified copy of the Will on record before the Trial Court under the provisions of Order XI Rules 12 and 14 C.P.C. was rejected on 22nd July, 1998, the question of an application under Order XLI Rule 27 CPC for the same purpose, did not arise. 16. We have carefully considered the submissions made on behalf of the respective parties and in view of the introduction of Rule 23-A in Order XLIII Rule 1(u) CPC, it can no longer be argued, as has been done by Ms. Shobha, that the Appeal was not maintainable. We are, therefore, satisfied that the Appeals before the High Court were maintainable and had been rightly entertained by the High Court. 17. As far as Ms. Shobha's second submission regarding the bonafide requirements of the son of Respondent No.1, Subhash Paliwal, is concerned, we are u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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