Arun Madan, J.
1. This revision petition has been prefered by the defendant-petitioner (for short 'the defendant') challenging the order dated 6.12.1999 passed by learned Additional District Judge No. 8. Jaipur City, Jaipur in Civil Regular Appeal No. 5/99 whereby, the said court had disallowed the relief sought for by the defendant by way of an application moved under Order 6 Rule 17 read with Section 151 CPC seeking amendment of the written statement filed by him in the said suit.
2. The facts which are relevant for deciding the controversy between the parties briefly stated are that plaintiff-respondent (for short 'the plaintiff) filed a suit against the defendant seeking eviction on the ground of reasonable and bonafide requirement of the suit premises for running business by his son. As regards partial eviction, the plaintiff pleaded that his need for the suit premises could not be satisfied by partial eviction. The suit was contested by the defendant denying the averments made in the suit as regards plaintiffs need for suit premises. The learned trial Court decreed the suit vide its judgment & decree dated 14.12.1998 in favour of the plaintiff as regards the reasonable and bonafide necessity. On Issue No. 3 regarding partial eviction, the trial Court while deciding the same in favour of the plaintiff held that the said issue did not require any consideration or examination for the reason that the plaintiff deposed that his need could not be satisfied by partial eviction and that the same was the case of the defendant.
3. Being aggrieved by the Judgment & decree of the trial Court as aforesaid, the defendant preferred Regular Appeal before the Appellate Court i.e. ADJ No. 8, Jaipur City, Jaipur challenging the finding of the trial Court on Issue No. 3 regarding partial eviction. The appeal is pending adjudication before the Appellate Court. During the pendency of the said appeal, the defendant filed an application under Order 6 Rule 17 CPC seeking amendment of the written statement as necessitated for determining the controversy between the parties as regards partial eviction. As averred in the application, there could be division of the shops in question so as to enable both the parties to carry out their business smoothly and conveniently by opening their respective shops on independent roads. It was further averred in the application that the plaintiff had sufficient accommodation on the first floor of the premises having 4 rooms in his possession and further the premises on the first floor, available with the plaintiff, could be very well used for commercial purpose if the plaintiff had any need of the premises for his son. The plaintiff further did not reside in the suit building. Further, the plaintiff can carry out the business for his son at the first floor which is quite suitable.
4. Plaintiff in rebuttal, denied the possibility of partial eviction on the ground that the lane on the side of the suit premises was dirty and that the shop could not be opened on that side besides the said lane being of 6 feet in width only. As regards the accommodation, available on the first floor, the plaintiff stated that the premises on the first floor being in occupation of tenant Arun Kumar and Mahesh Bansal was not available with him as Civil Suit No. 398/1995 filed by the plaintiff for recovery of possession of the said premises is pending in the trial Court and even if the. premises on the first floor is not suitable for running business.
5. The Appellate Court after hearing the learned Counsel for the parties on the application under Order 6 Rule 17 CPC seeking amendment in the written statement rejected the same vide its order dated 6.12.1999. Hence, this revision petition.
6. It has been contended by the learned Counsel for the petitioner that the trial Court without making any judicial exploration on Issue No. 3 regarding partial eviction decided the same by recording finding in favour of the plaintiff and held that the said issue did not require any consideration or examination for the reason that the plaintiff had deposed in evidence that his need could not be satisfied by partial eviction and the same was the case of the defendant (petitioner herein). The contention of the learned Counsel for the petitioner is that the trial Court had in this regard totally ignored the mandate of Section 14(2) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short 'the Act of 1950') which stipulates, as under-
14. Restriction on eviction - (2) No decree for eviction on the ground set forth in Clause (h) of Sub-section (1) of Section 13 shall be passed if the court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in respect of such part only.
7. The aims and object of the legislative mandate in inserting Section 14(2) in the Act of 1950 are that it is the primary duty of the court to apply the doctrine of comparative hardship in every case of eviction on the basis of bonafide and reasonable requirement of the landlord before the decree of eviction is passed in favour of the landlord on the said ground. The bonfide need has to be objectively considered by taking into consideration the comparative hardship of the respective parties to the case i.e. both the landlord and the tenant and; a) the court has to be satisfied as to whose hardship would be greater by passing a decree of eviction i.e. landlord or the tenant in respect of a part of premises and b) whether the suit premises in question is divisible in nature so as not to result in material hardship to a party who can be easily accommodated in the part of the premises notwithstanding the decree. Though, there is no definite guideline in this regard for judging or assessing the comparative hardship of any party, the hardship of both the parties is to be compared in weighing the evidence in every case by the court. It is the satisfaction of the court which is subjective on objective assessment of the material on record on appraisal of facts and circumstances of each particular case. It is settled position established by precedents and hence the court is free to record a finding of fact on this aspect after examining the comparative hardship of the parties on assumption of facts to be considered objectively on the basis of evidence adduced by both the parties.
8. It is pertinent to mention in this connection that the finding of facts which have been recorded by the trial Court are to the effect that shop premises in question has two separate outlets. On one side, the shop is measuring 6 x 6 feet in width & 21 feet in length and on the other side the shop is measuring 7 feet in width & 7' x 3' in length and in case it is divided in two parts then, on one side the shop would be measuring 6 x 6 in width and 13 feet in length and on the other side 7 feet in width and 14 feet in length. While, the middle wall can be raised upto 6' in width.
9. The aforesaid application was contested by the plaintiff on the grounds that the shop is not divisible looking to the bonafide need and requirements of his family. On this aspect, the trial Court recorded the evidence of the parties and thereafter made a finding to the effect that division of the shop premises was not possible. On the aspect of the comparative hardship the issue framed by the trial Court was to the effect that as a result of the partial eviction, whether the requirements of the plaintiff could be fully satisfied? From the evidence led on behalf of the plaintiff, it was specifically contended by the learned Counsel that the plaintiff himself had not only examined himself but also by way of corroborative evidence had supported his version that division of the shop is not possible and even if it is done, the basic requirement regarding bonfide need will not be satisfied. Consequently, the trial Court recorded the finding on the said issue in favour of the plaintiff.
10. I have carefully assessed the findings recorded by the courts below as well as the contentions advanced by the learned Counsel for the parties. Prima-facie, I am of the considered opinion that before a request for amendment in the pleadings can be entertained by a court, no such amendment should be permitted which amounts to or results in defeating the valuable legal right which has accrued to a particular party to the proceedings. There may be cases in which it may not be possible to compensate a party by way of cost if there has been delay in seeking amendment. Normally, there is no quarrel with the proposition that the court should be liberal and more generous in allowing amendment to the written statement but at the same time, the court should not be oblivious to the reality of the situation and should also take into consideration the intentions of the parties, which are really genuine and bonafide or the intention is purported to forestall and delay the proceedings. Prima-facie, no amendment to the pleadings should be allowed which may result in defeating the legal rights which have accrued to a party notwithstanding the delay in seeking amendment which may be compensated by way of cost. At the outset, I would like to refer to the provisions of Order 6 Rule 17; CPC which stipulates, as under-
17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
11. In matter of BKN Pillai v. P. Pillai and Ors. WLC (SC) Civil 2000 1 the controversy which had arisen before the Apex Court was that the respondent-plaintiff filed a suit against the appellant-defendant praying for grant of mandatory and prohibitory injunction seeking eviction allegedly on the ground of his being a licence. In the written statement filed, the appellant therein pleaded that he was not a licensee but a lessee. During the trial of the suit the appellant filed an application for amendment of the written statement to incorporate an alternative plea that in case the court found that the defendant was a licensee, he was not liable to be evicted as according to him the licence was irrevocable. He further wanted to add a plea that first and second prayers in the plaint were barred by limitation and that as acting upon the licence he has executed works of permanent nature and incured expenses in execution of the same, his licence cannot be revoked by the grantor under Section 60(b) of the Indian Easements Act, 1882. The prayer was rejected by the trial Court as also by the High Court on the ground that the proposed amendment was mutually destructive which, if allowed, would amount to permitting the defendant to withdraw the admission allegedly made by him in the main written statement.
12. The Apex Court also discussed of its earlier decision in the matter of A.K. Gupta & Sons v. Damodar Valley Corporation 1996 (1) S.C.R. 796 wherein, it observed, as under-
The general rule, no doubt, is that party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred : Weldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.
13. The Apex Court also took into consideration the ratio of its decision in the matter of Smt. Ganga Bai v. Vijay Kumar and Ors. : [1974]3SCR882 as under-
The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.
14. As a matter of principle, there is no quarrel with the proposition as laid down by the Apex Court in its several decisions on the aspect that the court should be generous in allowing the amendment to the pleadings provided the prejudice caused can be compensated by way of cost to the aggrieved party. There may be cases where amendment if allowed may bring altogether different facts which may not be germane to controversy or may cause 'great prejudice to the aggrieved party. There may b cases where party has made an admission and if an admission has been made, the said party cannot be permitted to alter its stand and position subsequently by seeking an amendment to the pleadings since if an admission has been made on a particular point and if the said party is permitted to retract from the said admission, it will definitely prejudice the cause of aggrieved party. In BKN Pillai v. P. Pillai and Anr. (supra) the facts and circumstances of the case were such that party having made an admission in the written statement, wanted to retract and withdraw from the same by seeking amendment to his written statement by way of an application under Order 6 Rule 17 CPC. The defendant-appellant wanted to amend the written statement by taking a plea that in case he is not held lessee of the premises in question, he was entitled to the benefit of Section 60(b) of the Indian Easements Act, 1882. Since the plea sought to be raised was neither inconsistent nor repugnant to the pleadings already raised in the defence, the alternative plea which was sought to be incorporated in the written statement was infact an extension of plea of the respondent-plaintiff and in rebuttal to issue framed regarding liability of defendant of being dispossessed on proof of fact that defendant was licensee who is liable to be evicted in accordance with the provisions of law, the mere fact that the appellant had filed an application for amendment after a prolong delay, the Apex Court held that there should be no ground for rejecting his prayer particularly when, the respondent-plaintiff could be compensated by way of cost. Though, I am in respectful agreement with the ratio of the judgment of the Apex Court as aforesaid but, the basic questions which involved in the instant case are; a) whether as a result of admission already made by the defendant on the aspect of partial eviction from, the suit premises in question wherein he has unequivocally contended in para 3 of reply before the trial Court that he needs entire shop premises for his bonafide need and occupation and even partial eviction would not be possible and in rebuttal the defendant in his written statement has also taken the specific plea that division of the shop is also not possible, thereby supporting the case of the plaintiff in this regard what would be its' effect for assessing the bonafide need of the plaintiff? and b) whether the defendant having specifically admitted and rather having conceded the case of the plaintiff with regard to his bonafide need to occupy the entire shop premises in question for himself and benefit of his family and the learned trial Court having specifically recorded the finding in favour of the plaintiff that the shop premises are not divisible and hence the partial eviction of the shop premises is also not possible after determining the comparative hardship of the parties with regard to the provisions of Section 14(2) of the Act of 1950. I am thus of the view that the admission in the manner as aforesaid having already made by the defendant in favour of the plaintiff, a valuable legal right has thus accrued and got vested with the plaintiff. It is a case where retraction from the admission already made is neither possible nor can be permitted and if this amendment as sought for by the defendant is allowed, it may cause great hardship and prejudice to the plaintiff.
15. The Apex Court in BKN Pillai v. P. Pillai (supra) has made an observation that the defendant has a right to take alternative plea provided same does not cause prejudice to the plaintiff and does not amount to withdrawal of admission already made by the defendant and further that no amendment should be permitted which amounts or results in defeating the legal rights which have accrued to the plaintiff. Hence, I am of the view that ratio of the aforesaid decision of the Apex Court is fully attract to the instant case arid if the amendment is permitted, it is bound to cause not only the great hardship to the plaintiff in view of the admission already made by the defendant by virtue of which legal rights have not vested in him which cannot be divested in the manner as so desired by the petitioner.
16. The alternative plea of the defendant on the aspect of comparative hardship that notwithstanding admission made by him, yet it would not cause any prejudice to the plaintiff in my view, does not stand to reason at all and cannot be sustained. I am of the opinion that no amendment to the pleadings should be permitted which amounts to or results in defeating the valuable legal rights in favour of a party. Moreso, this is not a case where amendment can be compensated by way of cost.
17. As a result of above discussion, no interference is called for because there is no material irregularity, illegality, excess or error of jurisdiction on the part of the appellate court which calls for any interference by this Court in exercise of revisional powers under Section 115 CPC. The revision petition being devoid of any merit is hereby dismissed. However, the observations made under this order are restricted to the decision on the amendment application itself and the same will not influence the appellate court in deciding appeal pending adjudication against the decree passed by the trial court on all the questions.