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2006 DIGILAW 1067 (RAJ)

Chameli Devi v. Civil Judge (JD) (W), Jaipur City

2006-04-04

PREM SHANKAR ASOPA

body2006
Judgment Prem Shanker Asopa, J.-By the instant writ petition the legal representatives of the defendant seeks to challenge the order dated 06.03.1998 whereby the application under Order 6 Rule 17 CPC filed by deceased Dhanna Lal for amendment in the written statement by substituting Para No. 16 of the written statement has been dismissed. 2. Briefly stated the relevant facts of the case are that the original defendant in Para No. 1 of the written statement has admitted the tenancy @ Rs. 25 per month and moved the aforesaid application under Order 6 Rule 17 CPC for inserting the fact that the tenancy was earlier joint one with his wife Smt. Chameli Devi from 01.08.1978 which was later on made individual from 01.07.1990 by substituting Para No. 16 of the written statement. Therefore, Chameli Devi is a necessary party and suit which has been filed with regard to the commercial premises of the shop prior to 5 years is liable to be dismissed. 3. The respondent-plaintiff has opposed the said application by filing reply that the original defendant wants to withdraw the admitted facts and further wants to make out a new case by way of amendment which will prejudice her case. 4. After hearing both the parties, the trial Court has considered the said Judgment s cited by the parties and came to the conclusion that clarification to the admission can be added and alternative pleas can be taken by way of amendment but the admitted facts cannot be allowed to be withdrawn to the prejudice of the plaintiff -respondent. The Court has further considered that in reply to Para No. 1, the defendant-petitioner in his written statement has admitted the fact of tenancy @ Rs. 25 per month but no amendment has been sought with regard to the said Para No. 1 of the written statement either by deleting the said fact or by amending the same. Otherwise also, in the entire written statement, there is no mention of Smt. Chameli Devi as a tenant and no document in support thereof has also been filed. Therefore, in the aforesaid facts and circumstances, tenancy is admitted and the said admission cannot be allowed to be withdrawn and it appears that the amendment is an afterthought. 5. Otherwise also, in the entire written statement, there is no mention of Smt. Chameli Devi as a tenant and no document in support thereof has also been filed. Therefore, in the aforesaid facts and circumstances, tenancy is admitted and the said admission cannot be allowed to be withdrawn and it appears that the amendment is an afterthought. 5. The submission of the Counsel for the petitioner is that the amendment sought for will not change the nature of the suit and further the same is of explanatory nature and goes to the root of the case. In support of the submission, the Counsel for the petitioner has cited one Judgment in Govind Narain vs. Mohan Singh, 1992 (1) WLC 504 (Raj). 6. The submission of the Counsel for the respondent is that there is admission of the deceased-defendant (now represented through his LR’s) in reply to Para No. 1 of the written statement regarding tenancy and now they cannot be allowed to withdraw the same which will cause prejudice to her. 7. Heard learned Counsel for the parties and considered the record of the writ petition and further considered the rival submission made by the parties. 8. The civil suit was filed against Dhanna Lal who died during pendency of the earlier revision filed on the same issue and dismissal of which was as not maintainable, therefore, the present writ petition has been filed. The written statement filed by Dhanna Lal is on record wherein there is no mention of the earlier tenancy as a joint tenancy and further the fact of tenancy has been admitted in the written statement. Otherwise also, there is no reference in the entire written statement of Chameli Devi as one of the tenant. 9. After consideration of the rival submissions of the parties, I am of the view that the present case is not simple case of explanation of the admission and the same is of withdrawal of the admission which is prejudicial to the interest of the respondent. Therefore, the submission of the Counsel for the petitioner deserves to be rejected. The aforesaid Judgment cited by the petitioner is applicable only when the amendment is allowed. The submission of the Counsel for the respondent deserves to be accepted. The trial Court has acted within its parameters and, therefore, no interference is called for under Article 227 of the Constitution of India. 10. The aforesaid Judgment cited by the petitioner is applicable only when the amendment is allowed. The submission of the Counsel for the respondent deserves to be accepted. The trial Court has acted within its parameters and, therefore, no interference is called for under Article 227 of the Constitution of India. 10. However, considering the fact that the civil suit filed in the year 1994 is still pending at the stage of evidence, it is expected from the trial Court to decide the same as expeditiously as possible. 11. The writ petition stands dismissed with the above observations.