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2012 DIGILAW 633 (ALL)

Sardar Jogindar Singh v. Om Prakash Agnihotri and another

2012-03-15

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.;- 1. This writ petition has been filed against the order dated 4.2.2012 passed by the Respondent No. 2 whereby the application of the petitioner for amendment in the written statement has been rejected. 2. Brief facts of the case are as follows; 3. An application under Section 21 (1) (a) of the UP Act No. 13 of 1972 (in short "Act") was filed by the landlord-Respondent No. 1 against the petitioner for release of the disputed shop. The petitioner in his written statement denied and disputed the contention raised by the landlord. The record of the case shows that a last opportunity was given to the petitioner to adduce his evidence but instead of filing evidence filed an application for appointment of the Advocate Commissioner for the inspection of the premises and also filed an application under order 11 Rule 1 & 2 CPC. However, both the said applications were rejected by the courts below. Subsequently, yet another application under Order 6 Rule 17 CPC was filed for amendment of his written statement, inter alia, stating therein that after the filing of the written statement it came into knowledge of the petitioner that in the quinquennial assessment list issued by the Kanpur, Nagar Nigam of the disputed premises, four shops have been shown in the disputed premises out of which three are in possession of the petitioner. It was further submitted that the municipal record of the Nagar Nigam, Kanpur does not contain the name of the plaintiff; the release application has been filed by concealing the material facts which necessitated the filing of the amendment application. 4. The landlord-Respondent No. 1 filed his objection and stated that the assessment list of the disputed premises has no relevancy since it relates to year 1992 and was prepared around 19 years back. It was further stated that half of the portion of the disputed premises fell into the share of his brother late Bhavani Shanker Agnihotri who in turn sold it to one Kuldeep Singh Bhatia, and the said house was renumbered as 54A. It was further stated that mutation order has been passed in favour of the Respondent No. 1 mutating the name of the Respondent No. 1 in respect of the premises in dispute in the Kanpur Nagar Nigam record. It was further stated that mutation order has been passed in favour of the Respondent No. 1 mutating the name of the Respondent No. 1 in respect of the premises in dispute in the Kanpur Nagar Nigam record. It was further stated that there is only one shop in the disputed premises occupied by the petitioner. It was further submitted that the amendment application is only a device to delay the disposal of the case. A last opportunity was granted to the petitioner by the court below to adduce evidence but till date no evidence in his support has been adduced by petitioner. The court below after considering the material available on record by order 4.2.2012 dismissed the amendment applicant. Hence, the present writ petition. 5. Heard learned counsel for the petitioner and perused the record. 6. Learned counsel for the petitioner has submitted that the order passed by the court below is illegal, arbitrary and is based on complete misreading of the case and misconception of legal position relevant to the matter and has not considered the matter in the right perspective. 7. A bare perusal of the written statement shows that the petitioner has neither disputed the title of the respondent nor denied the existence of relationship of landlord and tenant between the parties. Therefore, even if the name of the Respondent No. 1 does not find mention in the municipal record, it will not have any bearing on the merit of the present case. Besides this, the assessment list relates to the year 1992 prepared about 19 years back, now in the changed circumstance has no relevancy in the matter particularly when half of the portion of the disputed premises which fell in to the share of his brother late Bhavani Shanker Agnihotri was sold by him to one Kuldeep Singh Bhatia as a result of which the premises was renumbered as 54A in the municipal record. It is also notable that the name of the Respondent No. 1 was later on mutated in the Municipal Record qua the disputed premises. Thus it cannot be said that the name of the petitioner does not find place in the record of Kanpur Nagar Palika. 8. It is also notable that the name of the Respondent No. 1 was later on mutated in the Municipal Record qua the disputed premises. Thus it cannot be said that the name of the petitioner does not find place in the record of Kanpur Nagar Palika. 8. It was open to the petitioner to file his affidavit as well as evidence on record in accordance with law to show that the plaintiff has got sufficient accommodation in his possession for carrying on the business. The petitioner instead of adducing his evidence appears to be more interested in delaying the disposal of the suit. 9. The court below has given cogent, convincing and satisfactory reasons while passing the impugned order. Reasons mentioned by the court below while dismissing the application of the petitioner for amendment of the written statement are good enough to satisfy the impugned order and no fault can be found with the approach adopted by the court below. The argument advanced by the petitioner has got no substance. 10. In view of what has been discussed herein above, I do not find any illegality, infirmity or perversity in the impugned order which may warrant any interference. 11.In the result, the writ petition fails and is dismissed