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2015 DIGILAW 1049 (RAJ)

Jugal Kishore v. Rambai

2015-05-12

ARUN BHANSALI

body2015
JUDGMENT 1. - This Writ Petition has been filed by the petitioner aggrieved against the Order dated 20.4.2015 passed by the Trial Court, whereby, the application filed by the petitioner under Order I Rule 10 C.P.C. has been rejected. 2. The respondent-plaintiff filed a suit for eviction from the shop and mesne profits against the petitioner. 3. A written statement was filed by the petitioner disputing the averments made by the petitioner. 4. During the pendency of the suit, the petitioner - defendant filed an application under Order I Rule 10 C.P.C. with the averments that the plaintiffs shop was ad measuring 15x20 ft. having roads on the three sides and there was 8 ft. wide veranda belonging to the Municipal Corporation, Suratgarh ('Corporation') and the defendant was in possession of the said veranda with only 1.5 ft. land of the plaintiff and, therefore, the Corporation was a necessary party and prayed that Corporation be im-pleaded as party defendant in the suit. 5. Though no reply was filed by the plaintiff, however, the application filed by the petitioner was resisted. 6. The Trial Court after hearing the parties, by the impugned order came to the conclusion that the fact that defendant was tenant was not disputed and the suit has been filed for possession, the dispute relating to ownership was not to be decided in the suit and there was no justification for impleading the Corporation as party and on finding that the application was filed merely with a view to delay the proceedings, imposed cost of Rs. 1,000/- and rejected the application. 7. It is submitted by learned Counsel for the petitioner that the Trial Court was not justified in dismissing the application, inasmuch as, the Corporation was a necessary party to the suit as the eviction of the petitioner was being sought from the premises, which essentially belongs to Corporation and, therefore, the Trial Court was not justified in dismissing the application. 8. It was further submitted that there was no cause for the Trial Court to impose a cost of Rs. 1,000/- in the facts and circumstances of the case when the petitioner had not delayed the proceedings at any stage of the suit and, merely filing a bona fide application, the petitioner cannot be punished by imposing cost. 9. 8. It was further submitted that there was no cause for the Trial Court to impose a cost of Rs. 1,000/- in the facts and circumstances of the case when the petitioner had not delayed the proceedings at any stage of the suit and, merely filing a bona fide application, the petitioner cannot be punished by imposing cost. 9. I have considered the submissions made by learned Counsel for the petitioner and have perused the material placed on record. 10. The foundational aspect which the petitioner has canvassed in the application pertains to he being in possession of veranda belonging to Corporation and that he was only possessing 1.5 ft. of plaintiffs shop, is totally missing from the written statement. 11. A plea has been raised in the Writ Petition for the first time that the petitioner made all the situation clear before his Trial Court's Counsel, but due to mistake of Counsel, the facts in this regard were not mentioned in the written statement. From the fact that the said aspect does not form part of the plea at any stage and the explanation offered in the Writ Petition appears to be lame duck, there was no reason for the Trial Court to accept the application filed by the petitioner. 12. In that view of the matter, the order passed by the Trial Court cannot be faulted. 13. So far as imposition of cost of Rs. 1,000/- on the petitioner is concerned, the grievance raised by the petitioner appears to be a bit justified, inasmuch as, the written statement was filed on 29.5.2014 by the petitioner and after affidavit was filed by the plaintiff on 2.3.2015 she was cross-examined on 3.3.2015 and the application under Order I Rule 10 C.P.C. was filed on 20.4.2015 and was decided on the same date, therefore, it cannot be said that the petitioner had filed the application merely with a view to delay the proceedings and, therefore, the Trial Court was not justified in imposing the cost of Rs. 1,000/- against the petitioner. 14. No useful purpose would be served in issuing notice to the respondents for the purpose of interfering in the order of cost and, therefore, without issuing notice to the respondent, the order of cost imposed by the Trial Court is set aside.With the above modification, the Writ Petition filed by the petitioner is disposed of.Petition disposed of. *******