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2012 DIGILAW 673 (RAJ)

Kishore v. A. D. J. (FT) No. 2, Udaipur

2012-03-19

VINEET KOTHARI

body2012
JUDGMENT 1. - Heard learned counsels for the parties. 2. The defendant, Kishore S/o Shivlalji Bhoi and others have filed these two writ petitions, which are being decided by this common order, against the plaintiff-Pyari Bail and others proforma respondents viz. Urban Improvement Trust, Udaipur and aggrieved by the order dated 14.2.2008 whereby the defendants' application under Order 14 Rule 2 C.P.C. was rejected and another application under Order 6 Rule 17 C.P.C. for amendment in the written statement filed by them, has been rejected by the learned trial Court vide order dated 2.2.2008 respectively. 3. The plaintiff-respondent No. 4, Pyari Bai filed a suit for declaration and injunction against the present defendants-petitioners in respect of a petrol pump, which according to her, was bequeathed by her husband, namely, Prithvi Raj Bhoi by way of Will and the said suit was filed through power of attorney holder Mr. Raj Kumar Chanchawat. 4. The defendants, Kishore and others filed said application under Order 14 Rule 2 C.P.C. on 8.8.2007 to the effect that valuation of the suit at Rs. 51,000/- ( Rs. 20,000 + Rs. 20,000 + Rs. 11,000/- for respective three relief/s) is on the lower side and since the valuation of the petrol pump in question cannot be less than Rs. 51,00,000/-, the plaintiff should have asked to deposit the Court fees accordingly and the Issue No. 4 framed for determination of Court fees should be decided as a preliminary issue. The learned trial Court, however, rejected the said application vide the order dated 14.2.2008 holding that the valuation of the suit is within the domain of the plaintiff and since rendition of the accounts is also prayed for, the valuation of Rs. 51,00,000/- cannot be said to be correct; and therefore, the valuation of the suit at Rs. 51,000/- valued by the plaintiff is correct and the Issue No. 4 can be decided only' after the evidence is led by the parties. 5. 51,00,000/- cannot be said to be correct; and therefore, the valuation of the suit at Rs. 51,000/- valued by the plaintiff is correct and the Issue No. 4 can be decided only' after the evidence is led by the parties. 5. Similarly' the defendants' application under Order 6 Rule 17 C.P.C. seeking amendment in the written statement essentially elaborating the facts to establish that the plaintiff-Pyari Bai was not even the wife of deceased Prithvi Raj, the father-in-law of the present defendant No. 1-Kishore but she was in unauthorized possession of his house having entered the same as a tenant; and she was actually wife of one Shanker Lal, who is still alive and, therefore, she cannot claim any ownership rights and rendition of account in connection with petrol pump in question. The defendants also sought to challenge the locus of the power of attorney holder Mr. Raj Kumar Chanchawat by way of seeking such amendment in the written statement. 6. The said application under Order 6 Rule 17 C.P.C. also came to be rejected by the learned trial Court with cost of Rs. 1,000/- by the impugned order dated 2.2.2008 challenged in CW No. 1720/2008; whereas the impugned order dated 14.2.2008 rejecting defendants' application under Order 14 Rule 2 C.P.C. has been challenged by the defendants in CW No. 1750/2008. 7. Learned counsel for the petitioners-defendants, Mr. Sunil Ranwah, urged that valuation of the suit in question was deliberately kept low by the plaintiff to avoid payment of Court fees and, therefore, at least the issue regarding the Court fees, which has already been framed by the learned trial Court, deserves to be decided as a preliminary issue. He relied upon judgment of this Court in the case of Smt. Kamla & Anr. v. Shri Ramesh Chandra & Ors., reported in 2002 (4) WLC (Raj.) 321 to support his submissions. 8. Assailing the order dated 2.2.2008 rejecting defendants' application under Order 6 Rule 17 C.P.C., learned counsel for the defendants-petitioners urged that amendment in the written statement was merely to elaborate the averments already made in the written statement previously filed by them denying the status of the plaintiff, Pyari Bai as wife of deceased Sh. Prithvi Raj; and consequently, at the initial stage of the trial of the suit when the trial has just begun, the amendments deserve to be allowed. 9. E-converso, Mr. Siddharth Joshi and Mr. Prithvi Raj; and consequently, at the initial stage of the trial of the suit when the trial has just begun, the amendments deserve to be allowed. 9. E-converso, Mr. Siddharth Joshi and Mr. Khet Singh, learned counsel for the respondent-plaintiff opposed the submissions of the learned counsel for the petitioners and relying upon a decision of Hon'ble Apex Court in the case of Vidyabai & Ors. v. Padmalatha & Anr. reported in AIR 2009 SC 1433 urged that amendment application has been filed by the defendants merely to delay the trial of the suit instituted in the year 2000 and, the present application was filed by the defendants after seven years of the institution of the suit. The amendment thus sought in the written statement are not at all relevant with the controversy in hand and so far as filing of the suit through the power of attorney holder Mr. Raj Kumar Chanchawat is concerned, the said fact was already within the knowledge of the defendants-petitioners and having not taken any objection in this regard earlier, the same cannot be permitted by way of amendment in the written statement. 10. By an ex parte order dated 11.4.2008, the trial in the present suit was stayed by this Court and for last almost four years, the trial is lying stayed and has not proceeded further, therefore, these writ petitions are finally disposed of at this stage. 11. As far as the application of the defendants under Order 14 Rule 2 C.P.C. is concerned, this Court is of the view that issue No. 4 with regard to payment of Court fees about the valuation of the suit, is a preliminary issue, which can be decided as a preliminary issue without evidence of the parties being led. The issue in this regard has already been framed by the learned trial Court as Issue No. 4. This Court in the case of Smt. Kamla & Anr. The issue in this regard has already been framed by the learned trial Court as Issue No. 4. This Court in the case of Smt. Kamla & Anr. (supra), relied upon by the learned counsel for the petitioners, in para 16 has held that provisions of Order 14 Rule 2 C.P.C. are directory and not mandatory and, therefore, it is obligatory for the Courts to decide the issue of law and facts as a preliminary issue, In that case also, the learned trial Court had refused to try the issue as to the required Court fees as a preliminary issue and allowing the revision petition of the defendants, this Court directed the learned trial Court to decide the said issue as a preliminary issue. The para 16 of the said judgment is reproduced hereunder for ready reference: "16. Thus, in view of the above, the revision petition succeeds and is allowed. The impugned order dated 25.9.2000 is set aside. The learned trial Court is requested to consider the issue of valuation of suit as a preliminary issue and in case the Court comes to the conclusion that the suit has been undervalued, it will value it correctly and ask the plaintiff to make the deficiency of Court fees good within a stipulated period. There shall be no order as to costs." 12. Consequently', as far as the order dated 14.2.2008 is concerned, the learned trial Court cannot be said to be justified in refusing to decide the issue No. 4 with regard to Court fees as a preliminary issue. 13. Accordingly, the CW No. 1750/2008 deserves to succeed and the same is allowed and setting aside the order dated 14.2.2008, the learned trial Court is directed to decide the Issue No. 4 with regard to Court fees as a preliminary issue, 14. Coming to the another order dated 2.2.2008 rejecting defendants' application under Order 6 Rule 17 C.P.C. for amendment in the written statement, it is found that the learned trial Court has rejected the said application possibly-swayed by the fact that said amendment was sought by the defendants upon the change of counsel in the trial for the defendants, who merely sought to improve upon the pleadings viz., the written statement filed by the defendants and to establish the facts, which were already stated by the defendants in their written statement. About filing of the suit through power of attorney holder Mr. Raj Kumar Chanchawat, the learned trial Court has invoked the proviso of Order 6 Rule 17 C.P.C. that this objection could have been taken by the defendants in the written statement already filed by them. The amendments sought in the written statement challenging the very right of the plaintiff, Pyari Bai to file the present suit with the averments that she was not even the wife of deceased Prithvi Raj and who had merely entered his house as a tenant and then claimed the ownership of the petrol pump in question under a Will purportedly executed by late Sh. Prithvi Raj in her favour and then filing the present suit through power of attorney holder Mr. Raj Kumar Chanchawat, are the facts which even though initially denied by the defendants, with the amendment in the pleadings in the written statement, if proved during the course of evidence, can lead to the dismissal of the suit itself at the threshold. Therefore, such amendment sought by the defendants in the written statement cannot be said to be a mere repetition, irrelevant or not germane to the stand taken by the defendants in the written statement. 15. Learned trial Court in the impugned order dated 2.2,2008 without going into the averments already made by the defendants in the written statement and the amendments sought by way of application under Order 6 Rule 17 C.P.C., appears to have casually rejected the said amendment application merely swayed by the fact that same was merely an effort to improve the pleadings upon change of counsel. Such an attitude on the part of the learned trial Court, while rejecting the application with cost of Rs. 1,000/- is found to he unsustainable. The trial after framing of the issues by the learned trial Court is still at the plaintiffs evidence stage, the same cannot be said to be at the fag end or in the advance stage. Such an attitude on the part of the learned trial Court, while rejecting the application with cost of Rs. 1,000/- is found to he unsustainable. The trial after framing of the issues by the learned trial Court is still at the plaintiffs evidence stage, the same cannot be said to be at the fag end or in the advance stage. The amendment sought in the written statement sought in the case of this Court are not only relevant but germane to the controversy at hand but may also require appropriate additional issue to be framed; and in the opinion of this Court, the said application under Order 6 Rule 17 C.P.C. deserves to be allowed and the learned trial Court has erred in rejecting the same vide the order dated 2.2.2008. 16. Consequently, the CW No. 1720/2008 also deserves to be allowed and the same is allowed. The impugned order dated 2.2.20C8 is set aside and 'the application filed by the defendants-petitioners under Order 6 Rule 17 C.P.C. shall stand allowed. The trial Court shall proceed further with the trial accordingly. No costs.Writ petition allowed. *******