Holding

A landlord's claim of reasonable and bonafide requirement is satisfied without proof of dire necessity, loss of job, or capital, and an amendment to reflect the heirs' requirement is valid, allowing Supreme Court interference under Article 136 where lower courts' findings are manifestly unjust.

Summary

The original landlord filed an eviction suit under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, claiming a bonafide and reasonable requirement for the premises. After his death, his heirs amended the plaint to assert their own requirement of starting a grocery business due to a lock‑out at his former employment. The trial court dismissed the suit for lack of proof of loss of job, capital, and experience, and held the suit abated; the appellate court reversed only the abatement finding, and the High Court refused to interfere. The Supreme Court, exercising its discretionary power under Article 136, held that the statutory requirement need not be a dire or absolute necessity and that the heirs’ amendment was valid and caused no prejudice. Consequently, the Court set aside the decisions of the lower courts, ordered eviction, and granted the tenant six months to vacate.

Issues considered

The meaning and scope of 'reasonable and bonafide requirement' under Section 13(1)(g) of the Bombay Rents Act for eviction of a non‑residential premise.
Whether a landlord must prove loss of employment, capital, or an absolute necessity to satisfy the statutory requirement.
Whether amendment of the plaint to include the heirs' requirement after the death of the original plaintiff is permissible and whether it prejudices the tenant.
Whether the Supreme Court may interfere under Article 136 with the factual findings of the trial and appellate courts in such rent‑control matters.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 13(1)(g)
Code of Civil Procedures. Order 6 Rule 17
Constitution of Indias. Article 136, s. Article 227

Subjects

evictionbonafide requirementreasonable requirementrent controlBombay Rents ActArticle 136amendment of plaintlandlord's needSupreme Court interference

Judgment

RAGHUNATH G. PANHALE (DEAD) BY LRS. A
v.
.,
M/s. CHAGANLAL SUNDARJI AND CO.

OCTOBER 13, 1999

[M. JAGANNADHA RAO AND A.P. MISRA, JJ.] B

- Rent Control and Eviction :

Bombay Rents, Hotel and Lodging & House Rates (Control) Act,
1947-S.13(1)(g}-Eviction-Non-residential premises-Eviction suit on the c
=-· ground of bonafide requirement of landlord-Premises required for starting a
grocery business after being rendered jobless due to lockout-Dismissed by
trial court holding that landlord has not pennanently lost his job, there is no
proof of availability of capital for investment and experience in grocery
business-Non-interference by High Court with the concumnt findings of fact
-Held; bonafide requirement does not mean 'dire', 'absolute' or 'compelling D
necessities'---Landlord need not actually lose his job nor resign it nor reach
the level of starvation to get the possession of premises-No necessity for
landlord to prove that he has capital to invest and has experience in butt-
.,
::ol.
. ness-Thus, entire approach of courts below were wrong in law and perverse
on facts-High Court not justified in refusing to interfere with the concurrent E
findings of facts-Constitution of India, 1950-Articles 227 and 136.

Constitution of India, 1950-Article 136 :

Interference with the concurrent findings of courts below-Scope
of-Trial Court and Appellate Court equating need or requirement with 'dire' F
or 'absolute' or 'compelling necessity'--Non-interference by High
Court-Held; a fit case for interference under Article 136.

Discretionary power-Exercise of-Amendment of plaint-Wrongly al-
__·! lowed-Effect of-Eviction suit for bonafide requirement-Death of original
landlord-Amendment of plaint by legal heirs-Evidence led by parties on G
amended plaint-No prejudice caused to the tenant due to amend-
ment-Held; since tenant has suffered no prejudice due to amendment,
~ landlords should not at this distance of time after a lapse of 13 years be drived
to file a fresh suit-Plea that amendment wrongfully allowed not pennited to
be raised. H
629
630 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A Words & Phrases

'Reasonable requirement', 'bonafide requirement' meaning of in the
context of S.13( l)(g) of the Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1947.

B The predecessor-in-interest of appellants filed an eviction suit
against respondent-tenant on the ground of bonafide and reasonable re-
quirement. On the death of the original landlord his legal heirs, viz.,
appellants were brought on record. The plaint was allowed to be amended
by legal heirs and evidence was led on the said amended pleadings. One
C of the appellant-legal heirs pleaded that the non-residential suit premises
was required by him for starting a grocery business as he was rendered
jobless due to lock out. Trial court dismissed the suit holding that there
was no proof of capital available for investment, no proof of experience of
appellant in grocery business and since the lock out had not put the
-
appellant out of his job permanently, the requirement was not bonafide.
D The court also held that on the death of the original landlord, the suit
abated because the original landlords requirement was different from that
of his heirs. On appeal, the appellate court while confirming the findings
regarding bonafide ~·equirement, reversed the findings on the point of
abatement. On appeal, High Court refused to interfere with the concurrent
E findings of facts of courts below. Hence the present appeal.
Allowing the appeal, the Court

HELD 1.1. This is a fit case for interfuence under Article 136 of the
Constitution as the courts were wrong in thinking .that the appellant·
F landlord must prove not his need but 'dire' or 'absolute necessity'. [633-G]

1.2. Though it is well settled that this Court under Article 136 will
not ordinarily interfere with the findings of fact arrived at by the courts
below, this court could go into the correctness of findings of fact where
G "the concurrent decision of two or more courts or tribunals is
manifestly unjust". In the instant case, the entire approach of courts below
were absolutely wrong in law, and perverse on fact. Thus, it is an excep·
tional case calling for interference under Article 136 of the Constitution of
India. [634-A; B; C; DJ

H Variety Emporium v. V.R.M. Mohd. lbralzim Naina, [198511 SCC 251
RAG HUN ATH G. PANHALE v. C. S. & CO. 631 (
and Bega Begum & Ors. v. Abdul Ahad Khan & Ors., [1979] 1 SCC 273, A
/
referred to.

1.3. A landlord need not lose his existing job nor resign it nor reach
a level of starvation to contemplate that he must get possession of his
premises for establishing a business. One cannot imagine that a landlord
who is in service should first resign his job and wait for the unknown and
B
uncertain result of a long drawn litigation. If he resigned his job; he might
indeed end up in utter poverty. Joblessness is not a condition precedent
for seeking to get back one's prer.iises. Assuming the landlord was in a job
and had not resigned it or assuming that pending the long drawn litigation
he started some other temporary business to sustain himself, that would C
not be an indication that the need for establishing a grocery shop was not
a bona fide or a reasonable requirement or that it was motivated or was a
mere design to evict the tenant. It is not necessary for the landlord to
adduce evidence that he had money in deposit in a Bank nor produce proof
of funds to prove his readiness and willingness as in a suit for specific D
performance of an agreement of sale of immovable property. So far as
experience is concerned, one would not think that a grocery business was
one which required extraordinary expertise. Thus, the trial court and the
appellate court had clearly erred in law as they practically equated the test
of''need or requirement" to be equivalent to 'dire or absolute or compelling E
- necessity'. The High Court was also not justified in simply dismissing the
writ petition holding that the findings were one of fact which could not be
interfered with. [638-D; E; F; G; & Cl

1.4. The word 'reasonable' connotes that the requirement or need is
not fanciful or unreasonable. It cannot be a mere desire. The word F
'requirement' coupled with the word reasonable means that it must be
something more than a mere desire but need not certainly be a compelling
or absolute or dire necessity. A reasonable and bona fide requirement is
something in between a mere desire or wish on one hand and a compelling
., or dire or absolute necessity at the other end. It may be a need in presenti G
or within reasonable proximity in the future. The use of the word 'bonafide'
is an additional requirement under S.13(1)(g) of the Bombay Rents, Hotel
and Lodging & House Rates (Control) Act, 1947 and it means that the
requirement must also be honest and not be tainted with any oblique
motive. [634-F; G; HJ H
j

632 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A Bega Begum & Ors. v. Abdul Ahad Khan & Ors., (1979] 1 SCC 273; \
Yudhislztir v.Ashok Kumar, [1987] 1 SCC 204; Mattu/al v. Radhelal, [1974]:' "-
2 SCC 365; A.K Veeraraghava Iyengar v. N. V. Prasad, AIR (1994) SC 2357; •
Vinay Kumar & Ors. v. District Judge, Ghazipur & Ors. [1995] Suppl. 2 SCC
586; Rena Drego (Mrs.) v. Lalchand Soni & Ors., [1998] 3 SCC 341; Sar/a
B Ahuja v. United India Insurance Co., [1998] 8 SCC 119; Prativa Devi (Smt.)
v. T. V. Krishnan, [1996] 5 SCC 353; Meenal Eknath Kshirsagar v. Traders
and Agencies & Anr., [1996] 5 SCC 344; Smt. Sheela Chadl1a & Ors. v. Dr.
Accharaj Ram Sehgal, [1990] Suppl. SCC 736; Shiv Sarup Gupta v. Dr.
Mahesh Chand Gupta, [1999] 6 SCC 222 and Raj Kumar Khaitan & Ors. v.
Bibi Zubaida Khatun & Anr., [1997] 11 SCC 411; referred to.
c 2. It is true that a plaint cannot be amended for putting in issue the
requirement of the heirs inasmuch as the cause of action be different. This
is because the original landlord's requirement would not be the same as
that of his heirs. However, in the instant case, the respondent tenant had
full opportunity to meet the case of the heirs as per the amended pleading
D and had suffered no prejudice whatsoever because of the amendment.
Further at this distance of time, after a lapse of 13 years the heirs should
not be driven to file a fresh suit on the plea that the amendment was
wrongly allowed. Thus, in exercise of discretionary jurisdiction under
Article 136, the respondent is not allowed to raise the plea that the
E amendment was wrongly allowed. [639-E; F; G; H; 640-A]

Shanti/al Thakordas & Ors. v. C.M. Telwala, [1976] 4 SCC 417,
..
referred to.

Phool Rani & Ors. v. Naubat Rai Ahluwalia, [1973] 1 SCC 688,
F distinguished.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5925 of
1999.

From the Judgment and Order dated 19.1.98 of the Bombay High
G Court in W.P. No. 3460 of 1997.

A.M. Khanwilkar, Vishwajit Singh, N. Sakhardande for the Appel-
lants.

Bhim Rao Naik, Jai Savla, M. Ogra and N. Menon for the Respon-
H dent.
RAGHUNATH G. PANHALE v. C. S. & CO. [M. JAGANNADHA RAO, J.] 633

The Judgment of the Court was delivered by A

M. JAGANNADHA RAO, J. Leave granted.

This is an appeal by the landlords for possession of a non- residential
premises from the respondent tenant. The suit No. 37 of 1986 was filed
B
before the Civil Judge, Junior Division, Panvel by the original landlord for
his own use pleading bonafide and reasonable requirement. The
respondent - tenant resisted the suit contending that the plea of bona fide
requirement was not acceptable. During the pendency of the case in the
first Court, the original plaintiff died and his heirs, the appellants were
brought on record. They filed an application for amendment under Order c
6 rule 17 of the Code of Civil Procedure and the same was allowed. The
third legal representative pleaded that the same premises was required for
himself for starting a grocery business. He stated that he was working in
Metal box. Co., that there was a lock-out in that company, that he was
finding it difficult to maintain the family and wanted to improve his D
livelihood by starting grocery business. On the amended: pleadings, both
parties led evidence. The trial Court held that on the death of the original
lan.dlord, the suit abated becuase the original landlord's requirement was
for himself and his requirement differed from that of his heirs. On merits,
the trial Court held that there was no proof of lock-out, no proof of capital E
available for investment, no proof of preparations for business and that the
appellant had no experience in grocery business. The lock out did not put
the appellant out of his job permanently. The appellant had not resigned
·his job. Therefore, the requirement was not bonafide. The suit was
dismissed. The lower appellate Court confirmed the finding on the
question of bona fide requirement but reversed the finding as to abatement
F
stating that the plaint was amended, and thereafter parties had adduced
•
evidence on the question of the need of the legal representatives. The
appellate Court gave a finding that the tenant had got three other shops.
The appeal was dismissed. The landlord has come up in appeal.
G
We have heard elaborate arguments of the learned counsel on both
sides. After hearing counsel, we are of the view, for reasons given below,
that this is a fit case for interference under Article 136 inasmuch as the
Courts were wrong in thinking that the plaintiff must prove not his need
but his 'dire or absolute necessity'. The above approach on the facts has H
634 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A appeared to us to be based on irrelevant circumstances.

Now, it is well-settled that this Court under Article 136 will not
ordinarily interfere with the findings of fact arrived at by the Courts below
except in rare situations. It was held in Variety Emporium v. V.R.M. Mohd.·
Ibrahim Naina, [1985] 1 SCC 251 which arose under a Rent Control statute,
B that though this Court would not ordinarily interfere, this Court could go
into the correctness of findings of fact where "the concurrent decision of
two or more courts or tribunals is manifestly unjust". This burden is no
doubt to be discharged by the appellant. "But once that burden is dis-
charged,' it is not only the right but the duty of Supreme Court to remedy
C injustice". Similarly in Bega Begum and Ors. v. Abdul Ahad Khan and Ors.,
(1979] 1 SCC 273, which also arose under the Rent Control law, it was
again held that where the "High Court" and the trial Court have made a
legally wrong approach and have committed substantial and patent error
of law in interpreting the scope and ambit of the words "reasonable
D requirement" and "own possession" in the section and "have thus misap-
plied the law and overlooked some of the essential features of the evidence,
the Supreme Court has to enter Into the merits of the case in order to
prevent grave and sub~tantial injustice".

We shall initially refer to the legal principles applicable to the case.
E Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates
(Control) Act, 1947 uses the word "the premises are reasonably and bona
fide required by the landlord for his own occupation etc". The requirement
must, therefore, be both reasonable and bona fide.

F The word 'reasonable', in our view, connotes that the requirement or
need is not fanciful or unreasonable. It cannot be a mere desire. The Word
'requirement' coupled with the word reasonable means that it must be
something more than a mere desire but need not certainly be a compelling
or absolute or dire necessity. Aitken v. Shaw, (1933) S.L.T. 21; Novile v.
G Hardy, 90 L.J. Ch.. 158. A reasonable and bona fide requirement is some-
thing in between a mere desire or wish on one hand and a compelling or
dire or absolute necessity at the other end. It may be a need in presenti or
within reasonable proximity in the future. The use of the word 'bonafide'
is an additional requirement under Section 13(1)(g) and it means that the ·
requirement must also be honest and not be tainted with any oblique
H motive.
RAGHUNATH G. PANHALE v. C. S. & CO. [M. JAGANNADHA RAO, J.] 635

The above principles have been laid down in various decisions of this A
Court and we shall refer to a few of them which are relevant to the issue
before us. It was stated in Bega Begum & Others v. Abdul Ahad Khan &
Others, [1979] 1 SCC 273 that the reasonable requirement postulates an
element of "need" as opposed to a mere "desire or wish''. It was also
pointed out that if it was indeed a case of a reasonable need, the same B
could not be diluted by characterising it as only a mere desire. It was stated:

"The distinction between desire and need should doubtless be kept
in mind but not so as to make even a genuine need as nothing but
a desire''.
c
It was also held that the language of the prov1s10n cannot be unduly
stretched or strained as to make it impossible or extremely difficult for the
landlord to get possession. If more limitations are imposed upon the
landlord holding property, it would expose itself to the vice of uncon-
stitutionality. Yudhishtir v. Ashok Kumar, [1987] 1 SCC 204. The construe- D
tion of the relevant statutory provision must strike a just balance between
the right of the landlord and the right of the tenant. In Bega Begum's case
the landlords adduced evidence to show that they wanted to augment their
present income by starting hotel business. This was treated as a genuine
need. and it was held that it could not be equated with a mere desire. This E
Court observed that "the Act does not completely overlook the interest of
the landlord". In Mattu/al V. Radhelal, [1974] 2 sec 365, a like principle
was laid down stating that the test was not subjective but an objective one
and that the Court was to judge whether the need of the landlord was
reasonable and bona fide. This Court held that the Additional District
F
Judge in that case was wrong in thinking that the landlord who wanted to
start iron and steel business, had to produce proof of preparations for
starting his new business, such as making arrangements for capital invest-
ment, approaching the Iron and Steel Controller for the required permits
etc. This court held that the above circumstances were "wholly irrelevant"
and observed : G

"It is difficult to imagine how the respondent could be expected
to make preparations for starting the new business unless there
was reasonable prospect of his being able to obtain possession of
the Lohia Bazar Shop in the near future". H
636 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.

A This Court took judicial notice of long delays in Courts and
observed :

"It is common but unfortunate failing of our judicial system that
a litigation takes an inordinately long time in reaching final con-
clusion and then also it is uncertain as to how it will end and with
B what result"

and that, therefore,

"it would be too much to expect from him (landlord) that he should
make preparations for starting the new business. Indeed, from a
c commercial and practical point of view, it would be foolish on his
part to make arrangements for investment of capital, obtaining of
permits and receipt of stocks of iron and steel materials when he
would not know whether he would at all be able to get possession
of the Lohia Bazar Shop, and if so, when and after how many
D years".

Next comes the decision of this Court inA.K Veeraraghava Iyengar v. N.V.
Prasad, AIR (1994) SC 2357. In that case, this Court observed that the need
was bonafide and that the tenant failed to adduce any evidence against the
"experience of landlord, his financial capacity and his readiness and will-
E ingness to start jewellery shop". In Vinay Kumar and Ors. v. District Judge,
Ghazipur and Ors., (1995) Suppl. 2 SCC 586, it was contended for the tenant
that the son of the landlord whose requirement was pleaded, was in
government service and, therefore, he could not have any bona fide need
to start private practice as a doctor. This contention was rejected. In Rena
F Drego (Mrs.) V. Lalchand Soni and Ors., (1998) 3 sec 341 it was observed
that in the light of the factual position in that case, "where the (landlady)
says that she needs more accommodation for her family, there is no scope
for doubting the reasonableness of the requirement." It was held that the
circumstances of the case raised a presumption that the requirement was
G bona fide and that "tenant has failed to show that the demand for eviction
was made within any oblique motive". It was held that in the absence of
such evidence by the tenant, the presumption of the bona fide need stood
unrebutted. In Sar/a Ahuja v. United India Insurance Co., [1998) 8 SCC 119
it was again observed that the Court should not proceed on the assumption
that the requirement of the landlord was not bona fide and that the tenant
H could not dictate to the landlord as to liow he should adjust himself without
RAGHUNATI-1 G. PANI-IALE v. C. S. & CO. [M.JAGANNADI-IA RAO, J.] 637

getting possession of the tenanted premises. It was stated in Prativa Devi A
(Smt.) v. T. V. Krishnan, (1996] 5 SCC 353 and in Meenal Eknath Kshirsagar
V. Traders and Agencies & Another, [1996] 5 sec 344, that the landlord was

the best judge of his requirement. In Smt. Sheela Chadha and Ors. v. Dr.
Accharaj Ram Sehgal, [1990] Suppl. SCC 736, it was held that the landlord
had the discretion to determine his need. See also in this connection the
judgment of this Court in Shiv Sarnp Gupta v. Dr. Mahesh Chand Gupta,
B
[1999] 6 SCC 222. In Raj Kumar Khaitan and Ors. v. Bibi Zubaida Khatun
and Anr., [1997] 11 SCC 411, this Court had even stated that it was not
necessary for the landlord to state in the pleadings, the nature of the
business he proposed to start.
c
In the light of the above principles, we shall now examine the
decisfon of the courts below. In this case, the plaintiff No. 1/3 (one of the
legal representative of the deceased plaintiff) came forward with the plea
)

that he was in service of Metal Box Co. and since January 1988, due to
lock-out, the company was closed down and he was not having any source D
of income and therefore, he wanted to earn his livelihood by opening a
grocery-shop. The trial Court and the first appellate Court observed that
it was necessary that plaintiff should prove that he had lost his job and was
unable to maintain his family. This, according to the said courts, was belied
by the fact that in the amendment application and affidavit, the. plaintiff
No. 1/3 described his occupation as 'service' and that, therefore his E
evidence was not acceptable. It was further held that his evidence that he
lost his job on 15.1.1958 must also be rejected. The envelope containing
notice of lock-out from the company and news item in newspaper would
not, it was observed, prove the lock out. The notice showed only an
intention to lock-out from 5.2.1988. It was stated that no documentary F
evidence was produced ~o prove that the said plaintiff lost his job. The trial
Court in fact went into the definition of 'lock-out' in the Industrial Disputes
Act, 1947 and held that by a lock-out, the plaintiff would not lose his job
permanently and that he would get his wages when the lock-out was lifted.
As the plaintiff also admitted that there was a sign board at his house, with
the words 'Ganesh Water Supply', the plaintiff must be deemed to have G
started some other business. The plaintiffs evidence that he was maintain-
ing himself by taking loans from friends was I!Ot proved by adducing other
· evidence. He had not taken steps to purchase furniture to furnish the
proposed grocery shop and never thought of the capital required for the
business. On this material, it was held that no case was made out that he H
638 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A was not able to maintain his family. Yet another reason was that during his
father's life time, he, the plaintiff never thought of running a grocery shop.
The plaintiff admitted that he did not resign his job. He thus had no
intention of permanently running a grocery shop. It was not proved he had
knowledge of grocery business. These are the reasons given by the trial
B court and the first appellate court for rejecting the appellant's case. The
High Court rejected the application under Article 227 on the ground that
concurrent findings of fact could not be interfered with.

It will be seen that the trial Court and the appellate Court had clearly
erred in law. They practically equated the test of "need or requirement" to
C be equivalent to "dire or absolute or compelling necessity". According to
them, if the plaintiff had not permanently lost his job on account of the
lock-out or if he had not resigned his job, he could not be treated as a
person without any means of livelihood, as contended by him and hence
not entitled to an order for possession of the shop. This test, in our view,
D is not the proper test. A landlord need not lose his existing job nor resign
it nor reach a level of starvation to contemplate that he must get possession
of his premises for establishing a business. The manner in which the courts
have gone into the meaning of "lock-out" in the Industrial Disputes Act,
1947 appears to us to be nothing but a perverse approach to the problem.
One cannot imagine that a landlord who is in service should first resign his
E job and wait for the unknown and uncertain result of a long drawn
litigation. If he resigned his job, he might indeed end up in utter proverty.
Joblessness is not a condition precedent for seeking to get back one's
premises, For that matter assuming the landlord was in a job and had not
resigned it or assuming that pending the long drawn litigation he started
F some other temporary water business to sustain himself, that would not be
·an indication that the need for establishing a grocery shop was not a bona
fide or a reasonable requirement or that it was motivated or was a mere
design to evict the tenant. It is not necessary for the landlord to adduce
evidence that he had money in deposit in a Bank nor produce proof of
G funds to prove his readiness and willingness as in a suit for specific·
performance of an agreement of sale of immovable property. So far as
experience is concerned, one would not think that a grocery business was
one which required extraordinary expertise. It is, therefore, clear that the
entire approach of both the Courts was absolutely wrong in law, and · ·
perverse on fact. Unfortunately the High Court simply dismissed the writ
H petition filed under Article 227 stating that the findings were one of fact.
RAGHUNATH G. PANHALE v. C. S. & CO. [M. JAGANNADHA RAO, J.] 639

That is why we think that this is an exceptional case calling for interference A
under Article 136 of the Constitution of India.

Learned counsel for the respondent, however, raised another point
regarding abatement and relied upon Phool Rani and Ors. v. Naubat Rai
Ahluwalia, (1973] 1 SCC 688 fo contend that while the matter was in the
Trial Court, the original plaintiff died, that the cause of action based on B
his bona fide requirement ceased to exist and the suit could not have been
continued by his heirs. This was because the original plaintiffs requirement
would not be the same as that of his heirs. It is true, the above judgment
does support the above contention. On the main point, the above decision
was overruled in Shanti/al Thakordas and Ors. v. C.M. Telwala, [1976] 4 c
sec 417 where it was held that if the original plaintiff pleaded that it was
his own need and that of family members, the cause of action would survive
on his death, to his heirs. In Shantilal's case, it was pointed out that if the
landlord claimed· possession on the ground of bona fide requirement for
himself and his family members, his family members could continue the D
same eviction case, after the landlord's death, without amendment since
the cause of action would survive to them.

Now, it is true th.at in Phool Rani there was no amendment applica-
tion by the heirs of the deceased landlord while in the case before us, an
amendment application was filed by the heirs and was allowed, putting in E
issue, their own requirement. It is also true that in Phool Rani no amend-
ment application was filed and allowed, but there are still observations that,
the plaint cannot be amended for putting in issue the requirement of the
heirs inasmuch as the cause of action will be different.
F
Be that as it may, now the question before us is whether when relief
for eviction was retained in the amendment and the plaint was amended
at the instance of the heirs to put in issue their own requirement and when
voluminous evidence was led on both sides and findings given on merits,
the question is whether we should at this distance of time hold on basis of
Phool Rani that the Amendment was wrongly allowed and drive the heirs G
to a fresh suit after thirteen years. The eviction case was filed in 1986 and
we note the tenant had full opportunity to meet the case of the heirs as
per the amended pleading. In our view, they suffered no prejudice what-
. soever because of the amendment. We, therefore, think that in our discre-
tion, we should not drive the heirs to file a fresh suit on the plea that the H
640 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A amendment was wrongly allowed. We, therefore, in our discretion under
Article 136, do not permit this point to be raised by the respondent.

In the result, the appeal is allowed and the judgment and decision of
all the three courts are set aside, and eviction is ordered. We, however,
grant six months time for vacation subject to the tenant's filing usual
B undertaking within 4 weeks and continuing to pay occupation charges at
the same rate during this period of six months. In case of breach of this
order or the undertaking, the execution case can proceed straight:way. ·-
Appeal is allowed. There will be no order as to costs.

S.V.K. Appeal allowed.