IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) NO.3592 OF 2006  

Jaswant Kaur & Anr. .. Petitioners Vs.

Subhash Paliwal & Ors. .. Respondents

J U D G M E N T

ALTAMAS KABIR, J.

1. One  Bhavani  Shankar,  the  father  of  the  

Respondent Nos.1 and 2, Subhash Paliwal and Gopal  

Paliwal,  was  the  owner  of  several  properties,  

including  the  disputed  shop  room.   After  his  

demise, on 3rd January, 1998, Subhash Paliwal and  

Gopal Paliwal filed a suit against the petitioners  

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for their eviction from the shop room in question  

on the ground of personal necessity and  bonafide  

necessity of Sandeep, son of Subhash Paliwal, for  

his  painting  business.  On  22nd July,  1998,  the  

petitioners  filed  an  application  under  Order  XI  

Rules 12 and 14 of the Code of Civil Procedure,  

1908,  for  a  direction  upon  the  respondents  to  

produce  on  record  the  Will  said  to  have  been  

executed by their late father, Bhavani Shankar, on  

21st July,  1989,  whereby  he  was  alleged  to  have  

bequeathed the disputed shop room to his younger  

son, Gopal Paliwal, thereby asserting 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  

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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 personal and bonafide  

requirement  of  his  son.   The  learned  Additional  

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District Judge No.2, Udaipur, by his order dated  

13th November, 2002, dismissed the application filed  

by  the  petitioners  on  the  ground  that  despite  

having knowledge of the Will in question even at  

the  time  of  filing  written  statement,  no  such  

averment had been made. The revisional application  

filed  by  the  petitioners  before  the  High  Court  

against  the  order  dated  13th November,  2002,  has  

been lying defective and no steps have been taken  

to proceed with the same.    

4. According to the petitioners, on obtaining a  

certified copy of the Will dated 21st July, 1989,  

said to have been executed by Bhavani Shankar, the  

petitioners once again made an application under  

Order VI Rule 17 and under Order XLI Rule 27 of the  

Code  of  Civil  Procedure  for  amendment  of  the  

written statement and for permission to bring on  

record additional evidence on the ground that the  

Will in question was not in their possession prior  

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to 18th November, 2002, as a result whereof they  

were unable to make any reference thereto in the  

written statement. The First Appellate Court by a  

reasoned order dated 20th May, 2003, allowed both  

the  applications,  against  which  the  respondents  

filed Civil Miscellaneous Appeal before the High  

Court  and  the  High  Court  by  its  impugned  order  

dated 19th December, 2005, allowed the appeal and  

rejected  both  the  applications  filed  by  the  

petitioners  on  3rd January, 2003, under Order VI  

Rule 17 CPC and Order XLI Rule 27 CPC.

5. Appearing  on  behalf  of  the  petitioners,  Ms.  

Shobha, learned Advocate, submitted that the High  

Court had erred in interfering with the reasoned  

judgment of the First Appellate Court since Subhash  

Paliwal  did  not  fall  within  the  definition  of  

“landlord”  as  defined  in  Section  3(iii)  of  the  

Rajasthan  Premises  (Control  of  Rent  &  Eviction)  

Rent  Act,  1950  (hereinafter  referred  to  as  “the  

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1950 Act”), under Section 13 whereof a suit for  

eviction could be brought by the landlord on the  

ground  of  bonafide necessity  for  the  use  or  

occupation for himself or his family. Ms. Shobha  

submitted  that  neither  the  brother  nor  the  

brother’s son of the exclusive owner would have any  

right  to  claim  eviction  after  their  rights  were  

separated by the Will executed by Bhavani Shankar  

on 21st July, 1989.  

6. Ms. Shobha submitted that the powers of the  

Appellate Court were sufficiently wide to allow the  

introduction 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  

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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 as would  

deprive him of a right accrued due to lapse of  

time.  Reference was also made to a decision of  

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this Court in Prem Bakshi and others vs. Dharam Dev  

and others [(2002) 2 SCC 2] in the context of an  

application for amendment filed under Order VI Rule  

17 CPC, wherein it was observed that it was almost  

inconceivable  how  mere  amendments  of  pleadings  

could  possibly  cause  failure  of  justice  or  

irreparable injury to any party.  It was observed  

that such amendments only serve advance notice to  

the other side as to the plea which a party might  

take up.  Accordingly, a situation could not be  

envisaged where amendment of pleadings, whatever be  

the nature of such amendment, would even remotely  

cause failure of justice or irreparable loss to any  

party.  Reference was also made to the decision of  

this Court in  Rajesh Kumar Aggarwal vs.  K.K. Modi  

[(2006)  4  SCC  385],  wherein  the  approach  to  be  

taken  by  the  Courts  in  considering  whether  to  

permit amendment fell for consideration and it was  

held that the Courts should allow all amendments  

that  may  be  necessary  for  determining  the  real  

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question  in  controversy  between  the  parties,  

provided it did not cause injustice or prejudice to  

the other side.  It was observed that the  real  controversy test is the basic or cardinal test and  it  is  the  primary  duty  of  the  Court  to  decide  

whether such an amendment is necessary to decide  

the real dispute between the parties.   Similar  

views were also expressed in  Andhra Bank vs.  ABN  

Amro Bank N.V. [(2007) 6 SCC 167].   

8. Ms.  Shobha  urged  that  although  the  Will  in  

question may have been within the knowledge of the  

petitioners,  without  obtaining  a  certified  copy  

thereof, it was not possible to include the same in  

the pleadings while filing the written statement,  

particularly  when  the  application  filed  by  the  

petitioners  under  Order  XI  Rules  12  and  14  for  

discovery of the said document had been rejected by  

the Trial Court.  

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9. It was further submitted that the High Court  

should have appreciated the fact that there was no  

bar to the Appellate Court permitting amendment of  

pleadings to enable a party to raise a new plea, as  

was  held  by  this  Court  in  Pandit  Ishwardas vs.  

State of M.P. [(1979) 4 SCC 163].  In fact, this  

Court observed that all that was necessary was that  

the Appellate Court should observe the well-known  

principles subject to which amendments of pleadings  

are  usually  granted.  Naturally,  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.

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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.  S.K.  

Keshote,  learned  Senior  Advocate,  contended  that  

the submissions made on behalf of the Petitioners  

was  misconceived,  since  even  in  their  written  

statement filed on 8th December, 1998, no reference  

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had  been  made  to  the  Will  and  the  Petitioners  

admitted the Respondents to be their landlords and  

had  also  contended  that  the  rents  for  the  suit  

premises  were  being  paid  to  them.   Mr.  Kishote  

submitted that the suit was ultimately decreed by  

the Trial Court in favour of the Respondents on 3rd  

August,  2000,  and  an  appeal  was  filed  by  the  

Petitioners herein against the said judgment and  

decree on 28th August, 2000.  Thereafter, it was  

only on 3rd September, 2002, that an application was  

made  for  amendment  of  the  written  statement  to  

incorporate  the  plea  regarding  the  Will.  By  its  

order dated 13th November, 2002, the First Appellate  

Court dismissed the said application on the ground  

that though the fact regarding the execution of the  

Will was within the knowledge of the Petitioners  

even  at  the  time  of  filing  of  the  written  

statement, no such plea had been taken till the  

suit was decreed or even in the Appeal when the  

same was filed.  

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13. Mr. Keshote submitted that no interference was,  

therefore,  called  for  with  the  findings  of  the  

First Appellate Court regarding the lapse on the  

part of the Petitioners herein to amend the written  

statement during the trial of the Suit.

14. On  the  question  of  maintainability  of  the  

Appeal  before  the  High  Court  in  view  of  the  

provisions of Order XLIII Rule 1 of the Code of  

Civil Procedure, Mr. Keshote submitted that under  

the amended provisions of clause (u) of Rule 1 of  

Order XLIII, which was brought into effect from 1st  

February,  1977,  an  Appeal  against  an  order  of  

remand  under  Rule  23-A  of  Order  XLI  CPC,  is  

maintainable.   For  the  sake  of  reference,  the  

provisions  of  Order  XLIII  Rule  1(u)  CPC  are  

extracted hereinbelow :-

“Order XLIII Rule 1            Appeal from orders – An appeal shall lie  from  the  following  orders  under  the  provisions of Section 104, viz. :-

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(a) to (t) ………………………………………………………………………………

(u) an order under Rule 23 or Rule 23-A of  Order  XLI  remanding  a  case,  where  an  appeal would lie from the decree of the  Appellate Court;

(w) …………………………………………………………………………………………………”

15. Mr. Keshote 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.  

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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  unable  to  accept  the  same  in  view  of  the  

Petitioners’  own  admission  in  their  written  

statement that Subhash Paliwal and Gopal Paliwal  

were their landlords in respect of the suit shop  

room and that they had been paying rents to them  

till  the  filing  of  the  suit.  In  fact,  the  

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Petitioners would stand estopped from taking such  

objection under Section 116 of the Evidence Act.  

18. It is no doubt true, as has been submitted by  

Ms. Shobha, that the power to allow amendment of  

pleadings  is  very  wide  and  is  to  be  applied  

liberally.   However, in the context of the instant  

case, such an argument would not be available to  

the  Petitioners  since,  as  found  by  the  Courts  

below,  they  were  fully  aware  of  the  Will  in  

question, but had not even mentioned the same in  

their  written  statement  and  had  only  made  an  

application under Order XI Rules 12 and 14 CPC for  

a  direction  upon  the  Respondents  to  produce  the  

same, which prayer had been rejected.  It is only  

at the first appellate stage, and, that too, about  

two years after the Appeal had been filed, that the  

two applications were made under Order XLI Rule 27  

and  Order  VI  Rule  17  CPC  for  amendment  of  the  

plaint  and  for  bringing  on  record  the  certified  

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copy  of  the  Will.   By  virtue  of  the  said  two  

applications,  the  Petitioners  attempted  to  

introduce a new story by way of defence in order to  

prolong the disposal of the appeal.  

19. In such circumstances, we are of the view that  

notwithstanding the new case attempted to be made  

out  by  the  Petitioners,  the  same  is  of  little  

consequence  in  view  of  their  admission  that  the  

Respondents,  Subhash  Paliwal  and  Gopal  Paliwal,  

were  their  landlords  and  that  they  were  paying  

rents for the suit shop room to them.   

20. The various decisions cited by Ms. Shobha quite  

unequivocally  lay  down  the  law  relating  to  

amendment of pleadings, but they cannot be applied  

to the facts of this case in view of the admissions  

made on behalf of the petitioners that they had  

been paying the rents for the suit shop room to the  

respondents.

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21. In view of such admission, little remains to be  

considered  in  the  present  proceedings,  

notwithstanding  Ms.  Shobha’s  submission  regarding  

the definition of “landlord” in Section 3(iii) of  

the  1950  Act  in  support  of  her  submission  that  

Subhash Paliwal did not fall within the description  

of  “landlord”  in  the  Act.  The  Special  Leave  

Petition is, accordingly, dismissed.

22. There will, however, be no order as to costs.

…………………………………………J. (ALTAMAS KABIR)

…………………………………………J. (MARKANDEY KATJU)

New Delhi Dated: December 15, 2009.

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