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Rajasthan High Court · body

2009 DIGILAW 762 (RAJ)

Ummed Raj v. Babulal Soni

2009-03-16

GOVIND MATHUR

body2009
Judgment Hon'ble MATHUR, J.—To question validity, correctness and propriety of the order dated 22.3.2005, passed by the trial court in Civil Suit No.104/04, i.e. said to have been filed for eviction and recovery of arrears of rent, this petition for writ is preferred. 2. In brief, facts of the case are that the present petitioner is a tenant in the premises owned by the respondent plaintiff, who preferred a suit for eviction and arrears of rent and damages against the petitioner defendant before Additional District Judge, Abu Road on the ground of reasonable bonafide necessity and substantial damage to the premises let out. On 17.2.2005 the petitioner defendant preferred three different applications. One under Order XI Rules 15 and 18 read with 151 Code of Civil Procedure with the statement that in the plaint a reference regarding a sale deed executed in favour of the plaintiff was made, however, copy of the sale deed despite demand by the defendant vide notice dated 22.9.2004, was not supplied to him and that was filed before the court on 9.2.2005. Accordingly, a direction was sought to supply copy of the sale deed concerned. Second application was filed as per provisions of Order VII Rule 11 Code of Civil Procedure stating therein that copy of the plaint so also affidavit filed in support thereof are required to be duly signed by the plaintiff, but such requirement was not satisfied, therefore, plaint is liable to be rejected. The third application was filed by the petitioner defendant pointing out violation of the provisions of Order VI Rule 2(3) Code of Civil Procedure. An application was also filed by the respondent plaintiff under Order VIII Rules 1 and 10 Code of Civil Procedure stating therein that since the written statement was not filed by the petitioner defendant within the statutory period of 30 days, therefore, his right to file the written statement be closed. 3. No reply to the applications preferred by the petitioner defendant was filed by the respondent plaintiff, however, he filed an amended plaint making necessary corrections as per provisions of Order VI Rule 2 Code of Civil Procedure Code of Civil Procedure and also supplied copies of the sale deeds to the petitioner defendant. 3. No reply to the applications preferred by the petitioner defendant was filed by the respondent plaintiff, however, he filed an amended plaint making necessary corrections as per provisions of Order VI Rule 2 Code of Civil Procedure Code of Civil Procedure and also supplied copies of the sale deeds to the petitioner defendant. The trial court by order impugned disposed of all the applications with the observation that no order is required to be passed on the applications preferred by the petitioner defendant in as much as the plaintiff has already filed an amended plaint while complying with the provisions of Order VI Rule 2 Code of Civil Procedure and for that he was not required to take prior permission of the court. Learned trial court also observed that the petitioner defendant will be free to file a reply to the amended plaint since the same was already filed on 4.3.2005. 4. While assailing validity of the order impugned, it is contended by counsel for the petitioner that the trial court should have passed specific orders on the applications preferred by the petitioner defendant under Order VII Rule 11 Code of Civil Procedure and also on the application preferred under Order VI Rule 2(3) Code of Civil Procedure. It is also stated that the amended plaint could have not been taken on record without specific permission of the court as per provisions of Order VI Rule 17 Code of Civil Procedure. 5. Per contra, it is stated by counsel for the respondent plaintiff that after making necessary compliance of the provisions of Order VI Rule 2(3) Code of Civil Procedure, there was no need to seek any permission from the court for filing an amended plaint as the amendment itself was made in view of the objection raised by the petitioner defendant. It is also stated that no order was required to be passed on the application preferred under Order VII Rule 11 Code of Civil Procedure in view of the fact that the reason for seeking rejection of the plaint was not surviving after making necessary compliance of the provisions of Order VI Rule 2(3) Code of Civil Procedure and after supplying copies of the sale deeds to the petitioner defendant. 6. Heard counsel for the parties and perused the order impugned. 7. 6. Heard counsel for the parties and perused the order impugned. 7. Learned trial court by order impugned disposed of three applications submitted by the petitioner defendant and one application submitted by the respondent plaintiff without making any order thereon. The trial court held that there was no need for seeking any permission from the court before filing the amended plaint as whatever amendment made in the plaint is as per the objections raised by the defendant. The view taken by the trial court is apparently erroneous in view of the fact that as per Order VI Rule 17 Code of Civil Procedure no amendment could have been made without having approval of the court. It is only the court that may at any stage of the proceedings allow either party to alter or amend his pleadings, as such the order in this regard was necessarily required to be passed by the court concerned. Merely on the count that the plaintiff made amendments as per objections raised by the defendant, the requirement of getting sanction from the court cannot be dispensed with. 8. Similarly, it was obligatory upon the court to pass appropriate order on an application preferred under Order VII Rule 11 Code of Civil Procedure seeking rejection of the plaint. In the instant matter the petitioner defendant sought rejection of plaint on certain grounds and those issues should have been considered and decided by the trial court. Merely on the count that whatever irregularities pointed out were subsequently cured by the plaintiff, cannot be a reason to treat an application preferred under Order VII Rule 11 Code of Civil Procedure infructuous. 9. In view of whatever said above, I am of the considered opinion that the order impugned dated 22.3.2005 is apparently erroneous as the court below failed to exercise jurisdiction vested with it. 10. Accordingly, this petition for writ is allowed. The order dt. 22.3.2005, passed by the trial court, is hereby quashed. The trial court is directed to hear and dispose of afresh the applications preferred by the petitioner defendant as per provisions of Order VI Rule 2(3) and Order VII Rule 11 Code of Civil Procedure. The amended plaint shall also be not taken on record without considering a proper application, if any, is filed or may be filed by the respondent plaintiff. The amended plaint shall also be not taken on record without considering a proper application, if any, is filed or may be filed by the respondent plaintiff. It is expected from the trial court to consider and decide all the applications and issues in the terms aforesaid on or before 1.5.2009.