Milap Chandra Jain, J.@mdashThis miscellaneous appeal has been filed against the order of the learned Additional District Judge No. 1, Udaipur dated October 25, 1993 by which he has allowed the appeal and set aside the judgment of the learned Additional Civil Judge No. 3, Udaipur dated November 9, 1989, decreeing the suit for arrears of rent @ Rs. 165/- per month with effect from October 15, 1975 with interest @ 6% p.a. and directing the adjustment of the amounts deposited in the court and the amount of Rs. 16,439.05 spent in construction by the defendant-appellants.
2. The facts of the case giving rise to this appeal may be summarised thus. On October 4, 1977, the plaintiff-respondent filed a suit for the recovery of arrears of rent and ejectment against the defendant in respect of the suit shop situated in the town of Salumbar (Udaipur) with the averments, in short, that the suit shop is in possession and tenancy of the defendants on monthly rent of Rs. 265/-, they have not paid rent from October 15, 1975, their tenancy has been terminated by means of a registered notice of ejectment and the Rajasthan Premises (Control of Rent and Eviction) Act, 1956 (hereinafter called the ''Act'') is not applicable. In their joint written statement, the defendants admit that suit shop is in their possession and tenancy and notice of ejectment has been received by the defendant No. 2 Ganga Ram. They denied that the agreed rent was @ Rs. 265/- per month but say that it was @ Rs. 165/- per month only. They have further averred that It was agreed In between the parties that the rooms would be constructed on the open land annexed to the suit shop on its back side, amount required in construction would be spent by the defendants and would be adjusted towards the rent and accordingly rooms were constructed by the defendants and rent was not paid. After the receipt of the notice, demand was raised for the balance of the amount spent in construction after adjusting towards the rent accrued so far. In his replication, the plaintiff has averred that amount was spent by him for raising construction behind the suit shop and it was agreed in between the parties that the rent would be payable at the enhanced rate of Rs. 265/- per month w.e.f. October 15, 1975. It was never agreed that the construction would be raised by the defendants and the amount spent would be adjusted towards rent.
3. The trial court framed the following four issues:
After recording the evidence of the parties and hearing them, the trial court held that the rent was not enhanced from Rs. 165/- per month to Rs. 265/-, Rs. 16,439.05 were spent by the defendants for raising construction behind the suit shop and rent was not paid as the same was to be adjusted towards the amount spent in construction. It decreed the suit as said above.
4. The plaintiff-appellant filed appeal In the court of the District Judge. It was heard by the Additional District Judge No. 1, Udaipur. He set aside the judgment and remanded the case to the trial court as said above by his judgment dated October 25, 1993.
5. It has been contended by the learned Counsel for the appellant that the learned Additional District Judge No. 1, Udaipur has seriously erred to allow the amendment of the plaint totally ignoring the fact of delay in moving the amendment application and the established law that court has no power to allow an amendment of plaint to include a cause of action which accrued after its institution. After the decision of the Hon''ble Supreme Court given in
6. In reply, it has been contended by the learned Counsel for the plaintiff-respondent that the learned appellate court has rightly allowed the application for the amendment of the plaint as the need of the suit premises has arisen in the year 1992 and to avid multiplicity of suit and technicalities. He placed reliance on
7. The reported decisions, relied upon by the learned Counsel for the appellants, are not applicable in this case. Admittedly, the suit was filed on October 4, 1977. It is clearly stated in para no.8 of the plaint that the Act is not applicable to the suit premises. In the corresponding para No. 8 of the written statement, it has been stated that this para involves legal question, no reply is needed and the court may consider it. Para No. 2 of the memo of misc. appeal filed in this Court states "That a look at the plaint would show that the suit for eviction was filed by the respondent on the ground of termination of tenancy as the defendant had committed breach of the terms of the tenancy by committing default in payment of rent. However, after the rent control Act becoming applicable to the area the grounds of eviction were added." The suit premises are situated in the town of Salumbar. By Government Notification No. F.1(6)(3)Home/V(77) dated May 18, 1979, the provisions of Sections 5 to 26 of the Act were extended to all the Municipal towns in Rajasthan w.e.f. May 18, 1979. It is thus clear that when the suit was filed on October 4, 1977, the Act was not applicable to the suit premises. As such
8. There is yet another aspect of the matter. It is well settled law that as far as possible courts must avoid multiplicity of litigation and shorten it. It has been observed in famous case of
28. A just resolution of the complex of this complex situation was put by us to counsel on both sides and the learned Advocate representing the State readily agreed that the policy of the legislation and the conditions in the Amendment Act would be fulfilled if the interpretation we proposed were to be accepted. We are satisfied that as far as possible courts must avoid multiplicity of litigation. Any interpretation of a statute which will obviate purposeless proliferation of litigation, without whittling down the effectiveness of the protection for the parties sought to be helped by the legislation, should be preferred to any literal, pedantic, legalistic or technically correct alternative. On this footing we are prepared to interpret Section 13 of the Amendment Act and give effect to S.4 of that Act. How do we work it out? We do it by directing the plaintiffs in the two cases to file fresh pleadings setting out their grounds under cls. (f) and/or (ff) of Sub-section (1) if they so wish. On such pleading being filed we may legitimately hold that the transferee landlord institutes his suit on grounds mentioned in cls. (f) or (ff) of Sub-section (1) on that date. It is only when he puts in such a plading setting out the specific ground covered by Sub-section (3A) of Section 13 that we can say he has begun or instituted a suit for the recovery of possession of the premises on that ground. Institution of a suit earlier has to be ignored for this purpose since that was not based on grounds covered by cls. (f) and/or (ff) and is not attracted by Sub-section (3A). He begins proceedings on these new grounds only when he puts in his pleading setting out these grounds. Inspirit and in letter he institutes his suit for recovery on the new grounds only on the date on which he puts in his new pleading. We cannot be ritualistic in insisting that a return of the plaint and a representation thereof incorporating amendments is the sacred requirement of the law. On the other hand social justice and the substance of the matter find fulfillment when the fresh pleadings are put in, subject of course to the three-year interval between the transfer and the filing of the additional pleading. Section 13 of the Amendment Act speaks of suits including appeals. It thus follows that these fresh pleadings can be put in by the plaintiff either in the suit, if that is pending, or in appeal or second appeal, if that is pending. Thereupon, the opposite party, tenant, will be given an opportunity to file this written statement and the Court will dispose of it after giving both sides the right to lead additional evidence. It may certainly be open to the appellate Court either to take evidence directly or to call for a finding. Expeditious disposal of the belated litigation will undoubtedly be a consideration with the court in exercising this discretion. The proviso to Sub-section (3A) can also be complied with if the plaintiff gets the permission of the Rent controller in the manner laid down therein before filing his fresh pleading.
29. We are conscious that to shorten litigation we are straining language to the little extent of interpreting the expression "institution of the suit'' as amounting to filing of fresh pleading. By this construction we do not violence to language but, on the other hand, promote public justice and social gain, without in the least imperiling the protection conferred by the Amendment Act.
30. Ruinous protraction of litigation, whoever may temporary seem to benefit by delay, bankrupts both in the end and inflicts wounds on society by sterile misuse of money. Tenant passengers who prolong their expensive flight on the litigation, rocket, are buying tickets for financial crash, drugged though they be by the seeming blessing of law''s delays. Courts, by interpreting the expression ''institution of suits'' cannot authorise reincarnation, allover again, of litigation for eviction. We save the tenant by applying it to pending cases and save him also from litigative waste.
31. This consideration is itself germane to the larger concept of justice which it is the duty of Courts to promote. Law finds its finest hour when it speaks to justice in on fair terms. In the present case our interpretative endeavour has been imbued with this spirit. In the process of interpretation where alternatives are possible, the man in the law influences the law in the man may be and the construction on Sections 4 and 13 of the Amendment Act herein adopted, we admit, appeals to us as more humane. The calculus of statutory construction relating to complex problems of the community cannot be hide-bound for orthodox text book canons.
9. It has been held in
It is also on the theory of an appeal being in the nature of rehearing that the courts in this country have in numerous cases recognise that in moulding the relief to be granted in a case of appeal, the court of appeal is entitled to trake into account even facts and events which have come into existence after the decree appealed against.
The observations have been approved in P. Venkteshwarlu v. The Motor and General Traders AIR 1974 SC 1409 at page 1411 para 5.
10. In para 3 of the amendment application dated August 17, 1993, it has been stated that in the year 1992, the defendants have constructed six big shops, one hall and one store etc. in the main market of Salumbar where they can conveniently shift their business and the suit shop is no more required by them. In reply, the defendant-appellants have not denied that in the year 1992 they have constructed six big shops, one hall and one store etc. in the main market of Salumbar. Under these facts and circumstances, it cannot be said that the learned Additional District Judge No. 1, Udaipur erred in allowing the said application for the amendment of the plaint.
11. There is great force in the contention of the learned Counsel for the appellant that the learned Additional District Judge No. 1 Udaipur was not justified to set aside the judgment and decree of the trial court in toto and to remand the case wholesome. The learned appellate court should have given reasons for wholesome remand and not for recording its own findings on issues No. 1 and 3. After taking the written statement of the defendants, it should have itself framed additional issue and recorded the evidence of the parties as provided under Order 41 Rule 28, C.P.C. This would have avoided further delay in the disposal of the case. Under the facts and circumstances of the case, particularly the fact that the suit is pending since the year 1977, the order of remand deserves to be set aside.
12. Accordingly, the appeal is partly allowed. The order of the learned Additional District Judge No. 1, Udaipur allowing the application for the amendment of the plaint is confirmed. The order setting aside the judgment and decree of the Additional Civil Judge No. 3, Udaipur dated November 11, 1989 and remanding the case to the trial court, is set aside.
13. The Additional District Judge No. 1 Udaipur is hereby directed as follows:
(1) He will give an opportunity to the plaintiff to file his amended plaint in compliance with his order dated October 25, 1993 (allowing amendment application) and to the defendants to file their supplementary written statement within two weeks of the receipt of a copy of amended plaint.
(2) Necessary issues arising out of the amended plaint and supplementary written statement (including issues on reasonable and bona fide necessity of the plaintiff and his son, comparative hardship and partial eviction) will be framed by him within two weeks of the filing of the supplementary written statement. Documents relating to the newly framed issues will be taken, if filed on the day on which issues are framed.
(3) Not more than three dates will be fixed for the evidence of the plaintiff on the additional issues framed. Similarly, not more than three dates will be fixed for the evidence of the defendants on the additional issues. The evidence of both the parties will be completely recorded by him within 6 months of the framing of the additional issues.
(4) Parties will be directed to take the summons for their witnesses ''dasti'' and to take steps and also repeated steps in emergent course for the service of summons upon their witnesses in the ordinary course and through registered AD post. A date for seeing the service of the summons will be fixed atleast 4 days before the date fixed for evidence and on this date concerned party will be directed to take repeated steps in emergent course if summons is/are not personally served upon witness/witnesses.
(5) Coercive steps to enforce the attendance of the witness/witnesses who fails/fail to attend court will be taken under Order 16 Rules 10 and 12, C.P.C.
(6) No application of any party will be entertained unless it bears the receipt of the counsel of the opponent on it and it will be decided within 2 days after hearing their counsel.
(7) Provisions of Order 17, C.P. C. will duly be taken into consideration while granting an adjournment to a party.
(8) Effective order will be passed to see that the defendants do not again indulge in dilatory tactics. Provisions of Section 35B, C.P.C. will be invoked.
(9) Learned Counsel for the parties will be heard on all the issues (old and new). The grounds stated in the First Apeal No. 12/90 (14/90) and also urged before this Court will duly be considered by him.
(10) The parties will appear before the learned Additional District and Sessions Judge No. 1, Udaipur on July 25, 1994.
(11) The Deputy Registrar (Judicial) will see that the records received from the Additional District and Sessions Judge No. 1 Udaipur are received by him before this date (July 25, 1994)
