S.S Sharma, J.:— The plaintiffs-non applicants filed a suit for ejectment etc. against the applicant-defendant tenant. The suit for ejectment was based on the plaintiffs bona fide requirement of the suit accommodation for their residence. The suit for ejectment was decreed by the trial Court on 31-10-1974, Against that judgment and decree the applicant-defendant filed an appeal, being First Appeal No. 79-A of 1974, which is pending in the Court of First Additional District Judge, Bhopal. In that appeal the applicant defendant filed two applications for amendment of the written statement. By these proposed amendments the defendant wanted to allege that the plaintiffs have obtained possession of accommodations, one as a result of a decree dated 30-7-1975, passed in another civil suit and the other because of having fallen vacant. These amendment applications were rejected by the Additional District Judge. One of the reasons for rejecting these applications was that the defendant cannot rely on the events subsequent to the passing of the decree. In support of these reasonings, reliance was placed on a decision of this Court in Taramal v. Laxman 1971 MPLJ 888. Aggrieved by this order, the defendant filed the revision.
2. When the revision was heard by learned Single Judge of this Court, the correctness of the decision in Taramal's case was challenged in view of the decision of their Lordships of the Supreme Court in P. Venkataswarlu v. Motor & General Traders (1975) 1 SCC 770 , AIR 1975 SC 1409, learned Single Judge was of the opinion that the ruling in Taramal's case required reconsideration. The following question was, therefore, referred to a Division Bench:—
“Whether a defendant-tenant against whom a decree for eviction is passed under section 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961, can plead before the appellate Court, by amending the written statement, that the need of the landlord, has come to an end because of his coming into possession of another reasonably suitable accommodation subsequent to the passing of the decree; and whether the view expressed on this point in Taramal v. Laxman is correct?”
3. In Taramal's case (supra) a suit for ejectment was filed for locating a lawyer's office for Ku. Parmeshwari Surey who was a member of the family of the landlord and was a practising advocate. In the appeal the findings that the plaintiff's requirement was a genuine one and there was no suitable place in the residential house of the landlord for locating that office were not Page: 348challenged. The main question urged in that appeal was whether the word ‘business’ in section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as ‘the Act’) includes the practice of a profession. It was, however, held that the practice of a profession will also be included within the meaning of the word ‘business’ as used in the aforesaid sub-section of the Act.
4. In Taramal's case (supra), the appellant-tenant had also pressed an application for amendment of the written statement which was rejected by the Court below. From the report of Taramal's case it is not clear as to what amendment was sought by the appellant-tenant. This prayer for amendment was rejected with the following observations:—
“The protection to a statutory tenant lapses with the passing of a decree and such a person has no right to bring on record new circumstances which were not in existence on the date of passing of the decree. That is a conclusion which is irresistible from the definition of a tenant in section 2(i) of the Act which excludes a person from the category of a ‘tenant’ against whom any order or decree for eviction has been made. Although, an appeal is in the nature of a continuation of the suit, nevertheless, the statutory tenant cannot urge any new facts which subsequently came into existence. Apart from this, the application cannot be granted as it is vague and lacking in particulars, and besides, it is not necessary for determining the real questions in controversy between the parties. The application cannot also be allowed because it is not bona fide. The effect of allowing the amendment would necessarily necessitate in a remand of the suit which would cause manifest injustice to the plaintiffs. It must, accordingly be held that the application was rightly rejected.”
5. ‘Tenant’ has been defined as follows in section 2(i) of the Act:—
“In this Act, unless the context otherwise requires:—
(i) ‘tenant’ means a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for an accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made.”
6. Their Lordships of the Supreme Court in Damadilal v. Parasram 1976 MPLJ 526 , (1976) 4 SCC 855 , AIR 1976 SC 2229 have considered the concept and meaning of statutory tenant. In that case, the plaintiff's suit for ejectment was dismissed by the trial Court but was decreed by the first appellate Court. The defendants filed second appeal. During the pendency of this appeal, both the defendants died. The objection that the defendants were merely statutory tenants and their right to resist ejectment on the basis of the M.P Accommodation Control Act was merely a personal right which was not heritable and did not devolve upon their heirs was rejected. The appeal was allowed by the High Court and the judgment of the trial Court was restored. In appeal before the Supreme Page: 349Court one of the contentions of the plaintiff-appellant was that the defendants were statutory tenants having no heritable interest in the demised premises and so on their death the right to prosecute the appeal in the High Court did not survive to their heirs and legal representatives. This contention was rejected on the ground that the concept of statutory tenancy under the English Rent Acts and the Indian Statutes, like the M.P Accommodation Control Act, rests on different foundations. This view has been reiterated in Chander Kali v. Jagdish Singh (1977) 4 SCC 402 , AIR 1977 SC 2262.
7. In section 2 of the Act the words “unless the context otherwise requires” have been used. The definition provides who would be a tenant which even includes a person continuing in possession after the termination of his tenancy. It, however, excludes a person against whom any order or decree for eviction is made. In our opinion, the person sought to be excluded is one against whom the order or decree of eviction has attained finality, and not the one who has challenged the order or decree of eviction as the case may be before the higher Court. If the construction sought to be given is accepted, the position would be that if an order or decree of eviction is passed against the tenant, he, in appeal, cannot put forth subsequent events dis-entitling the landlord to seek ejectment; while if the plaintiff-landlord's suit for eviction is dismissed and he prefers an appeal, the defendant, there being no decree or order of eviction against him, would be entitled to plead such subsequent events. This would, therefore, result in an anomalous position. In our opinion, the order or decree as has been referred to in this definition, in the context, would mean one which has attained finality.
8. Even in Taramal's case (supra) it was observed that an appeal is in the nature of continuation of a suit. In Lachmeshwar v. Keshwar Lal AIR 1941 FC 5 it has been laid down that the bearing of an appeal under the procedural law of India is in the nature of rehearing and therefore in moulding the relief to be granted in a case on appeal the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. In P. Venkateswarlu v. Motor & General Traders (supra) a situation similar to the one as in the present case had arisen. Their Lordships while dealing with the question observed as follows:—
“If a fact, arising after the lis has come to Court and has a fundamental impact on the, right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just Page: 350and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.”
Their Lordships while relying on the case of Lachmeshwar (supra) observed that the law as has been set out by them is of “ancient vintage”. Thus, on the principle of taking notice of the subsequent events even a tenant against whom an order or decree for eviction is passed but which has not attained finality could certainly bring to the notice of the Court subsequent, events which, according to him, will disentitle the plaintiff-landlord to get a decree of eviction against him.
9. In Taramal's case (supra), A.P Sen J. rejected the application not only on the reasonings as have been discussed above but also on the ground that the application was “vague and lacking in particulars, and besides, it is not necessary for determining the real questions in controversy between the parties.” That application was also not felt to be bona fide and, if allowed, were to result in manifest injustice. The principle that such an application seeking an amendment could be rejected is also borne out from the observations of their Lordships of the Supreme Court in the case of P. Venkateswarlu (supra) as contained in para 4 of the report. To quote the words, such facts have to be brought to the notice of the tribunal ‘diligently’ and where ‘no specific provision or fair play is violated’ and there is ‘absence of other dis-entitling factors or just circumstances’. Thus, whether or not such an amendment in the written statement should be allowed will be a matter entirely in the discretion of the Court, the exercise of which will depend upon the facts and circumstances of the case. Thus, so far as the rejection of the application for amendment of the written statement in Taramal's case (supra) on the grounds as have been set out in this paragraph is concerned, we are of the opinion that the application for amendment could rightly be rejected for such reasons.
10. We would, therefore, answer the question as follows:—
“A defendant-tenant against whom a decree for eviction is passed under section 12(1)(e) of the Madhya Pradesh Accommodation Control Act, 1961, can plead before the appellate Court by amending the written statement that the need of the plaintiff-landlord has come to an end because of his coming into possession of another reasonably suitable accommodation subsequent to the passing of the decree. Whether or not such an amendment should be allowed will depend upon the facts and circumstances of each case. The view expressed in Taramal v. Laxman, in so far as it rejected the application for amendment of the written statement on the ground that ‘the protection of a statutory tenant lapses with the passing of a decree and such a person has no right to bring on record new circumstances which were not in existence on the date of the passing of the decree’ is no longer good law.”
The case be now placed before the learned Single Judge.
order accordingly.