H.R. Panwar, J.
1. By the instant writ petition under Articles 226 and 227 of the Constitution of India, the order Annx. 6 dated 9.4.2008 passed by respondent No. 2 the Additional, District Judge No. 3, Udaipur (for short, 'the Appellate Court' hereinafter) to the extent of dismissing the application Annx. 3 filed by the petitioner under Order 6 Rule 17 CPC has been challenged.
2. The facts and circumstances giving rise to the instant writ petition are that respondent No. 1, the plaintiff, filed a suit against the petitioner-defendant under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, 'the Old Act' hereinafter) for eviction of the suit premises i.e. shop No. 13 situated at Ashwini Market, Udaipur and arrears of rent. The eviction was sought on the ground of reasonable and bona fide personal necessity of the respondent- plaintiff, the landlord. The petitioner-defendant, the tenant, contested the suit and ultimately the suit came to be decreed, against which the petitioner-defendant filed an appeal before the respondent No. 2, the Appellate Court. During pendency of the appeal, there had been subsequent change in the circumstances, by which, according to the petitioner-defendant, the reasonable and bona fide need of the respondent-plaintiff for the suit premises did not survive and, therefore he filed an application under Order 6 Rule 17 CPC (Annx. 3) seeking amendment in the written statement. That application came to be dismissed by the respondent No. 2, the Appellate Court, vide impugned order Annx. 6 dated 9.4.2008. Hence this writ petition.
3. I have heard learned Counsel for the parties. Perused the writ record as also the impugned order Annx. 6 dated 9.4.2008.
4. It is contended by the learned Counsel for the petitioner- defendant that the respondent-plaintiff filed the suit on the ground that the disputed shop is needed for his son Kailash for establishing a restaurant. Respondent-plaintiff subsequently came with the case, as averred in the plaint Annx. 1, that respondent- plaintiff wanted to establish a restaurant for his son Kailash by removing the wall between the disputed shop and the shop adjacent thereto so as to run the restaurant to serve the break-fast, south-Indian dish, cold and hot drinks, ice-cream etc. to customers, as also to sell milk products like chocolets, brakery items etc. on a counter; and the other part of the shop will be utilized for establishing a 'Bhojnalaya', half portion of which will be used for dinning hall and half for kitchen. Learned Counsel for the petitioner-defendant further submits that the petitioner received the information through one Shanker Singh that the respondent-plaintiffs son Kailash has already started the business in partnership under the name and style of 'Green- Valley Marble' and during the Financial Years 2004-05 and 2005- 06, the total sell was of Rs. 30,37,048/- and 29,76,442/- respectively, which shows that respondent-plaintiffs son Kailash has been fully established in the business and as such there remains no further need of the shop in question and the ground seeking eviction of the disputed shop on the basis of personal, reasonable and bona fide necessity of the respondent-plaintiffs son Kailash does not subsist and this being the subsequent event and material to decide the controversy between the parties, this fact was sought to be introduced by amendment in the written statement. It has further been submitted that without being pleaded in the written statement, it will not be possible, rather it will not be permissible for the. petitioner-defendant to contend and establish that the respondent-plaintiff is not having personal, reasonable and bona fide necessity of the suit premises and, therefore, he is not entitled for eviction of the shop in question. In support of his contention, learned Counsel for the petitioner-defendant has relied on the decisions of the Hon'ble Supreme Court in Gulabbai v. Nalin Narsi Vohra and Ors. : [1991]2SCR941 ; Hasmat Rai v. Raghunath Prasad : [1981]3SCR605 ; Ramesh Kumar v. Kesho Ram : AIR1992SC700 ; B.K.N. Pillal v. P. Pillai : AIR2000SC614 ; Estralla Rubber v. Dass Estate (P) Ltd. : AIR2001SC3295 ; and Andhra Bank v. ABN Amro Bank N.V. : AIR2007SC2511 : and the decisions of this Court in Smt. Mohani v. Mst. Gopi 1990(1) RLR 553; and Radhey Shyam Soni v. Sumermal Phophalia and Anr. 2006 WLC (Raj.) UC 493.
5. Learned Counsel for the respondent-plaintiff, submits that the Code of Civil Procedure, 1908 came to be amended by the Amendment Act, 2002 (Act No. 22 of 2002) amending the provisions of Order 6 Rule 17 CPC which has restricted the power of amending of pleadings. It has further been contended that it is for the landlord to decide how and in what manner he should live. Learned Counsel submits that while deciding the question of personal, reasonable and bona fide need, the crucial date is the date of filling of the suit and the subsequent evident can only be considered if need is completely eclipsed by the subsequent event. Lastly, it was contended that the scope of interference under Article 227 of the Constitution of India is very limited as this Court enjoys the supervisory jurisdiction under Article 227 of the Constitution of India and the impugned order has to be examined as to whether the inferior court proceeded within its parameters and not to correct the error. Learned Counsel for the respondent-plaintiff has relied on the decisions of the Hon'ble Supreme Court in R.C. Tamrakar and Anr. v. Nidi Lekha JT 2001 (8) SC 612; Gaya Prasad v. Pradeep Shrivastava AIR 2001 SC 803 and Om Prakash Gupta v. Ranbir B. Goyal 2002 WLC (SC) 169; and the decisions of this Court in Ghasi Ram alias Ghisa v. Additional District Judge No. 1, Siklar and Ors. 2004(2) DNJ (Raj.) 584; Manikyapuri Housing Co-operative Society v. Mahesh Chaiturvedi and Anr. ; and Legal Representatives of last Shri Rameshwar Lal v. Legal representatives of late Shri Nijamuddin SBCWP No. 2049/2004 decided on 2.5.2008.
6. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties.
7. In Gulabbai v. Nalin Narsi Vohra and Ors. (supra), the Hon'ble Supreme Court observed as under:
On a conspectus of all these decisions rendered by this Court, it is now beyond the pale of any doubt that in appropriate cases events subsequent to the filing of the suit can be taken notice of and can be duly considered provided the same is relevant in determining the question of bona fide requirement. Therefore, the High Court was right in duly considering the new facts and circumstances that have been brought to the notice of the Court by the application for additional evidence filed under Order 41 Rule 27 of the Code of Civil Procedure and In coming to a firm finding that the plaintiff-appellant constructed a spacious bungalow where she with the members of her family had been residing, there is no reasonable and bona fide requirement for the plaintiff to get a decree of ejectment of the defendants from the suit premises inasmuch as the first floor of the suit premises as well as the second floor could be conveniently used for opening the office of Tax Consultancy of plaintiffs husband who previously worked with one Mr. Gandhi in a partnership firm which partnership had been dissolved after Mr. Gandhi's son came to practice with his father.
8. In Hasmat Rai and Anr. v. Raghunath Prasad (supra), in a suit for eviction of the tenant from the building for personal business requirement and while the pendency of the second appeal, the landlord acquired possession on one of the premises and an application under Order 6 Rule 17 CPC was removed and in that context, the Hon'ble Supreme Court observed as under:
In the second appeal in the High Court the defendant appellant moved an application under Order VI Rule 17 for amendment of the written statement for elaborating what was already stated that not only the decree obtained by the plaintiff against the adjoining tenant of the same building namely firm of M/s. Goraldas Parmanand has become final but the plaintiff in execution of the decree way back in 1972 obtained actual possession of the whole of the area occupied by that firm and that forms major portion of the whole building. This application, though, in our opinion, to be wholly superfluous in view of the pleadings hereinbefore set out and in view of the fact that the burden of proof of establishing that the landlord was not in possession of a reasonably suitable accommodation in the same town was on the plaintiff was rejected on untenable ground that the defendant appellant was guilty of delay and laches, this application for amendment deserves to be granted, and we grant the same.
9. It was further observed that the burden being on the plaintiff to show that he had no other reasonably suitable accommodation for carrying on the business which he wanted to start in the suit premises, it was for the plaintiff to show that he had not acquired possession from firm Goraldas Parmanand. Alternatively, the plaintiff should have shown that the said adjacent accommodation was not reasonably suitable for the business he wanted to start. He has done neither. On the contrary plaintiff has admittedly adopted a position in the plaint that he not only wanted suit premises but also the adjoining premises of which he had obtained possession for starting his business. In such a situation if the High Court had kept in view that the plaintiff had already with him viz. Possession of a building having 18' frontage on the main road and 90' depth plus portion at the back of the suit premises in his possession it would have to come to an affirmative conclusion that the plaintiff had sufficient accommodation for starting his business as a Chemists and Druggists. It was nowhere pointed out by the plaintiff that the shop of Chemists and Druggists or a medicine shop would require frontage of more than 18', 18' frontage on a main road in a city like Builaspur is sufficiently attractive and accommodating. The depth of the shop as given out to us being 90', therefore landlord has now in his possession shop admeasuring 18' x 90' plus the area of 7' x 90' at the back of the suit premises being part of the same building. Would this not provide more than ample accommodation to the plaintiff to start his business as a Chemists and Druggists? Not one word has been said that the accommodation which is already in possession of the plaintiff is neither suitable nor reasonably suitable nor sufficient for starting his business. In fact the very stand of plaintiff landlord as accepted by the High Court that some portion at the back would be utilised by landlord for residence would affirmatively establish that landlord has more than enough vacant accommodation in possession for starting his business.
10. It was further observed that if a landlord bona fide requires possession of a premises let for residential purpose for his own use he can sue and obtain possession. He is equally entitled to obtain possession of the premises let for non- residential purposes if he wants to continue or start his business. If he commences the proceedings for eviction on the ground of personal requirement he must be able to allege and show the requirement on the date of initiation of action in the Court which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of litigation and must exist on the date of the decree and when we say decree we mean the decree of the final Court. Any other view would defeat the beneficial provisions of a welfare legislation like the Rent Restriction Act. If the landlord is able to show his requirement when the action is commenced and the requirement continued till the date of the decree of the Trial Court and thereafter during the pendency of the appeal by the tenant if the landlord comes in possession of the premises sufficient to satisfy his requirement, on the view taken by the High Court the tenant should be able to show that the subsequent events disentitled the plaintiff, on the only ground that here is tenant against whom a decree or order for eviction has been passed and no additional evidence was admissible to take note of subsequent events. When a statutory right of appeal is conferred against the order and once in exercise of the right an appeal is preferred the decree or order ceases to be final.
11. It was further observed by the Hon'ble Apex Court that it is indisputable that the decree or order for eviction referred to in the definition of tenant must mean final decree or final order of eviction. Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same.
12. In Ramesh Kumar v. Kesho Ram (supra), the Hon'ble Supreme Court held as under:
The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a cautious cognizance' of the subsequent changes of fact and law to mould the relief.
13. It was further observed as under:
While it is true that a distinction must be made between pleading and proof, it cannot be said that these must necessarily be in two successive sequential stages and particularly when dealing with pleas of subsequent events in appeals and revisions. If the allegations of facts made in support of such a plea are denied then alone the question of their proof in an appropriate way arises. If those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. There can be admissions by non-traverse. But there might also be cases in which, having regard to the nature of the circumstance, the Court may insist upon proof independently of such admission by non-traverse.
14. The Hon'ble Apex Court further observed as under:
When subsequent events are pleaded in the course of an appeal or proceedings of revision, the Court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in Rule 1 of Order 19, CPC. The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence. All these depend upon the factual and situational differences characterising a particular case and the nature of the plea raised. There can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities.
15. In B.K.N. Pillai v. P. Pillai and Anr. (supra), the Hon'ble Apex Court observed as under:
The principle applicable to the amendments of the plaints are equally applicable to the amendments of the written statements. The Courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favour of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite part on account of lapse of time. The delay in filling the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.
16. The Hon'ble Supreme Court further observed as under:
In the appeals the appellant-defendant wanted to amend the written statement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section60(b) of the Indian Easements Act, 1882. Learned Counsel for the appellant is not interested in incorporation of the other pleas raised in the application seeking amendment. The plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licensee liable to be evicted in accordance with the provisions of law. The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent- plaintiff could be compensated by costs. We do not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent.
17. In Estraila Rubber v. Dass Estate (P) Ltd. (supra), in an appeal before the Hon'ble Supreme Court, it was submitted on behalf of the defendant tenant that the High Court had exceeded its power of superintendence in the present case; that no admission had been made and none was being withdrawn; that the proposed amendments were intended only to give support to the defence already taken; that it had not been shown that allowing the amendment would cause prejudice to the plaintiff; that delay on its own was not a ground for rejecting the application; that the proposed amendments were required for the proper adjudication of the dispute and to avoid further litigation. On behalf of the plaintiff-respondent it was submitted that the defendant had taken an inconsistent plea intended to nullify the effect of admissions favour the plaintiff.
18. While allowing the appeal, the Hon'ble Apex Court observed as under:
It has not been shown how the proposed amendment prejudiced the case of the plaintiff. It is also not the case of the plaintiff that any accrued right to it was tried to be taken away by the proposed amendment. The proposed amendment is to elaborate the defence and to take additional plea in support of its case. Assuming that there was some admission indirectly, it is open to the defendant to explain the same. Looking to the proposed amendment, it is clear that it is required for proper adjudication of the controversy between the parties and to avoid multiplicity of judicial proceedings. From the records, it cannot be said that any new defence was sought to be introduced. Even otherwise, it was open for the defendant to take alternative or additional defence. Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so as to take away any accrued right, the application could not be rejected. At any rate, it cannot be said that allowing the amendment caused irretrievable prejudice to the plaintiff. Further the plaintiff can file his reply to the amendment written statement and fight the case on merits.
19. Now I deal with the decisions cited by the learned Counsel for the respondent-plaintiff.
20. In R.C. Tamrakar and Anr. v. Nidi Lekha (supra), the Hon'ble Supreme Court held as under:
Regarding bona fide requirement of the landlady, the trial Court after appreciation of the evidence on record held that the premises in question was required by the landlady for bona fide occupation for residential purpose for herself. The first appellate Court set aside the finding on the ground that need of the landlady was not bona fide as her son has constructed a house where she could stay. Though the tenant left the suit premises on his transfer to a place called Sivani where he has been provided accommodation by his employer, where he is living with his wife and he has also a house at Sivani, the first appellate Court erroneously took into consideration that the suit premises is required for accommodation of his ailing grandmother and his son, who is doing business in the suit premises. There are absolutely extraneous consideration as while considering the bona fide need of the landlord under the Act, the Court need not take into consideration these facts.
21. The Hon'ble Supreme Court observed as under:
Law is well settled that it is for the landlord to decide how and in what manner he should live and that he is the best judge of his residential requirement. In deciding the question of the bona fide requirement, it is unnecessary to make an endeavour as to how else landlord could have adjusted himself.
22. The Apex Court further observed as under:
Though the son of the landlady is a doctor and has constructed his own house, the landlady wants to stay in the suit premises. It is not the case of the tenant that landlady has any other suitable accommodation. Therefore, the High Court rightly set aside the finding of the first appellate Court holding that landlady could not be compelled to reside with her son as her case was that she wanted to stay by herself in the suit premises because of her health condition and the climatic condition of that place suits her.
23. In Gaya Prasad v. Pradeep Shrivastava (supra), the Hon'ble Supreme Court observed as under:
The crucial date for deciding as to the bona fides of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps the utility for him to reach the said crucial date of consideration. If every subsequent development during the post petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. The subsequent events to overshadow the genuineness of the need must be of such nature and of such a dimension that the need propounded by the petitioning party should have been completely eclipsed by such subsequent events. It is pernicious, and unjust to shut the door before the applicant just on the eye of his reaching the finale, after passing through all the previous leveis of the litigation, merely on the ground that certain developments occurred pendente lite, because the opposite party succeeded in prolonging the matter for such unduly long period.
24. In Om Prakash Gupta v. Ranbir B. Goyal (supra), the Hon'ble Supreme Court observed as under:
The Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (1) that the reliefs, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent events or changed circumstances would shorten litigation and enable complete justice being done to the parties, (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it is conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amend of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.
25. In Ghasi Ram alias Ghisa v. Additional District Judge No. 1, Sikar and Ors. (supra), this Court held that the order rejecting an application under Order 6 Rule 17 CPC is not liable to be interfered under Article 227 of the Constitution of India as the same can be raised in an appeal. The Hon'ble Apex Court held as under:
The petition under Article 227 of the Constitution of India is not a remedy as a rule or right. Ordinarily against the interlocutory orders passed by the Civil Court in the civil suit the petition under this provision is not to be entertained and the reason is very obvious that the order is always subject to correction in the regular appeal to be filed by the litigant. Against such orders earlier the revision petition under Section 115 of the CPC were available but after the amendment in the CPC that right has been taken away. The intention of the legislature behind it is that the orders may attain finality at the state, the litigants may not stall the finality of the suit by challenging the interlocutory orders.
26. This Court further observed as under:
That apart this Court may not justify in exercising its jurisdiction under Article 227 of the Constitution of India in every case of this nature. The Parliament has in its wisdom not provided any appeal or revision against the interlocutory order passed by the civil Court in civil suit. The object is to give finality to the decision at the stage. This Curt under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice where grave injustice would be done unless this Court interference in the matter.
27. In Rameshwar Lal v. Nijamuddin and Anr. (supra), this Court held that allowing such amendment at appellate stage would further amount to retrial in light of such subsequent developments and that is not to be encouraged. Finality and certainty in legal process is the objective for which we all should persevere and not other way round. Jurisdiction under Article 227 of the Constitution of India of this Court while dealing with such matters is limited and unless jurisdictional errors have been committed by the Courts below, this Court not very liberally invoke its jurisdiction under Article 227 of the Constitution of India to quash and set aside the order passed by the courts below.
28. If the instant case is viewed in the light of the decisions of the Hon'ble Supreme Court referred hereinabove, it would be clear that when the suit for eviction of the suit premises, i.e. shop No. 13 and arrears of rent was filed by the plaintiff-respondent No. 1, the plaintiff-respondent No. 1 came with the positive case that he needs the suit premises reasonably and bonafide for the 'personal necessity of his son Kailash Chandra. Thus, right from inception, it is the case of the plaintiff- respondent No. 1 that the suit premises is needed reasonably and bonafide for the use of his son Kailash Chandra and, therefore, the need of the shop by plaintiffs son Kailash Chandra to establish a business, has to be considered.
29. The petitioner-defendant very specifically came with the case that during pendency of the appeal, respondent-plaintiffs son Kailash Chandra has already started 1 the business in partnership under the name and style of 'Green-Valley Marble' and during the Financial Years 2004-05 and 2005-06, the total sell was of Rs. 30,37,048/- and 29,76,442/- respectively. Therefore, according to the petitioner-defendant, when the respondent- plaintiffs son Kailash Chandra has already established and settled In the business, as noticed above then the need of respondent-plaintiffs son Kailash Chandra does not survive and this material facts is sought to be incorporated in the written statement by way of amendment therein.
30. The contention of the learned Counsel for the respondent- plaintiff is that the crucial date for deciding the question of reasonable and bonafide necessity of the suit premises is the date of filing the suit, which cannot be accepted in view of the decisions of the Hon'ble Supreme Court in Hasmat Rai and Anr. v. Raghunath Prasad (supra); and Ramesh Kumar v. Kesho Ram (supra).
31. In Hasmat Rai and Anr. v. Raghunath Prasad (supra), the Hon'ble Apex Court held that if the landlord wants to continue or start his business and he commenced the proceedings for eviction on the ground of personal requirement, then he must be able to allege and show the requirement on the date of institution of action in the Court which would be his cause of action. But that is not sufficient. This requirement must continue throughout the progress of litigation and must exist on the date of the decree and when we say decree, we mean the decree of the final Court. Any other view would defeat the beneficial provisions of a welfare legislation like the Rent Restriction Act.
32. In is settled law that a statutory appeal is continuity of a suit and the final decree would be when it attains finality by the decision of the final Court. If the landlord is able to show his requirement when the action is commenced and the requirement continued till the date of the decree of the trial Court and thereafter during the pendency of the appeal by the tenant if the landlord comes in possession of the premises sufficient to satisfy his requirement and if the tenant is able to show that the subsequent events disentitled the landlord then such a subsequent event is required to be considered for deciding the controversy. When statutory right to appeal is conferred against the order and once in exercise of the right an appeal is preferred, the decree or other ceases to be final unless it attains finality by the last Court.
33. In Hasmat Rai and Anr. v. Raghunath Prasad (supra), the Hon'ble Supreme Court further observed as under:
It is Indisputable that the decree or order for eviction referred to in the definition of tenant must mean final decree or final order of eviction. Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of suit, the landlord's need must be shown to continue to exist at appellate stage. If the tenant is in a position to show that the need or requirement no more exists because of subsequent events, it would be open to him to point out such events and the Court including the appellate Court has to examine, evaluate and adjudicate the same.
34. In Om Prakash Gupta v. Ranbir B. Goyal (supra) while considering the question of subsequent event, may be one purely of law or founded on facts, held that the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amend of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.
35. In Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. : AIR2007SC1663 , the Hon'ble Supreme Court observed as under:
It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footing. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.
36. On these premises, the Apex Court held that such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would he far less in the former than in the later case.
37. Keeping in view the decisions of the Hon'ble Supreme Court referred hereinabove, when the same are applied to the facts of the instant case, in my view, the respondent No. 2, the Appellate Court, fell in error in dismissing the application filed by the petitioner-defendant under Order 6 Rule 17 CPC seeking amendment of written statement.'
38. In view of the aforesaid discussion, the writ petition is allowed; the impugned order Annx. 6 dated 9.4.2008 passed by the respondent No. 2 the Additional District Judge No. 3, Udaipur in Civil Appeal No. 23/2001, to the extent of dismissing the application filed by the petitioner-defendant seeking amendment of the written statement, is set aside; and the application filed by the petitioner-defendant under Order 6 Rule 17 CPC before the respondent No. 2 the Appellate Court is allowed. However, the plaintiff-respondent No. 1 is entitled to controvert the facts stated in the amended written statement by way of tiling a rejoinder thereto. In the facts and circumstances of the case, there shall be no order as to costs.