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2012 DIGILAW 2310 (RAJ)

Ashok Kumar v. Amit Kumar

2012-12-14

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - Instant writ petition has been filed under Article 227 of the Constitution of India to quash the impugned order dated 25.8.2012 (Annex.-5) passed by the Addl. Civil Judge (Jr. Dn.) in Civil Original Case No. 38 of 2006 and prayed that the application filed by plaintiff-respondent No. I under Order 6 Rule 17, read with Section 151, C.P.C. may be dismissed in toto. 2. As per facts of the case, in the suit filed by plaintiff-respondent No. I for eviction and recovery of arrears of rent under Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The plaintiff sought eviction of the petitioner on the ground of material alteration and sub-letting. In Para 6 of the plaint, it was stated by plaintiff-respondent No. 1 that defendant No. 1 neither payed nor tendered rent of five months after July 1997 up to December 1997, therefore, he made default in payment of rent. 3. The petitioner-defendant filed his written-statement to the plaint and denied all the averments made in the plaint and specifically the contents of para 6 of the plaint were also denied while saying that the plaintiff refused to accept rent, therefore, the rent was being deposited by the petitioner-tenant under Section 19- A of the Act of 1950 in the Court and rent upto the month of July 2002 had duly been deposited in the Court. 4. The plaintiff-respondent filed an application under Order 6 Rule 17, C.P.C., read with Section 151, C.P.C. on 11.3.2008 for amendment in the plaint. The petitioner-defendant filed his reply to the said application denying averments and raised certain objections. A specific objection was raised by the petitioner- defendant No. 1 that the amendment sought in respect of time barred rent is not permissible in law, therefore, if such amendment will be allowed it would change the nature of the suit and introduce a totally new cause of action. Therefore, the application filed by the plaintiff may be dismissed. 5. The trial Court after hearing arguments allowed the application filed by the plaintiff-respondent under Order 6 Rule 17, read with Section, 151, C.P.C. and allowed the prayer for amendment in the plaint. 6. Therefore, the application filed by the plaintiff may be dismissed. 5. The trial Court after hearing arguments allowed the application filed by the plaintiff-respondent under Order 6 Rule 17, read with Section, 151, C.P.C. and allowed the prayer for amendment in the plaint. 6. In this Writ petition, learned counsel for the petitioner vehemently argued that amendment can be allowed only if it does not cause prejudice to the other party and no amendment can be allowed which takes away the legal right accrued to the opposite party by lapse of time. The alleged arrears of rent of 44 months from July 1997 to February 2001 was time barred on the date of filing the application for amendment. Therefore, the same cannot be made a ground of eviction under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950; but, the trial Court proceeded to allow the application for amendment in most perfunctory manner without even considering the legal position in this regard and if the order impugned is allowed to stand, then, it will cause serious prejudice to the petitioner, therefore, the order impugned may be quashed. 7. After hearing learned counsel for the petitioner, I have perused the plaint Annex.-1 filed by the petitioner, so also, application filed by plaintiff-respondent under Order 6 Rule 17 and the order passed by the trial Court upon the said application dated 25.8.2012. In my opinion, if after amendment nature of the suit will not change, then, obviously it is open for the trial Court to allow the said amendment if the grounds taken go to the root of the case and, in that eventuality, the opposite party can file its reply and raise all grounds. The trial Court is required to see whether nature will change or not in the event of allowing the amendment. 8. Here, in this case, contention of the petitioner cannot be accepted that in the amendment time barred claim is made by the respondent-plaintiff, therefore, new cause arose in the suit. In the opinion of this Court, if the petitioner is having any ground of jurisdiction or time-barred claim that can be adjudicated after filing reply by the petitioner-defendant to the amendment allowed by the trial Court. 9. In view of above, no case is made out for interference. In the opinion of this Court, if the petitioner is having any ground of jurisdiction or time-barred claim that can be adjudicated after filing reply by the petitioner-defendant to the amendment allowed by the trial Court. 9. In view of above, no case is made out for interference. Accordingly, this writ petition is dismissed with liberty to the petitioner to raise all grounds by way of filing reply to the amendment so allowed, so also, the petition-defendant will be free to raise ground,of jurisdiction at appropriate stage.Petition dismissed. *******