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2015 DIGILAW 830 (JHR)

Sumermall Jain v. Tanusree Dutta

2015-07-22

SHREE CHANDRASHEKHAR

body2015
Order : Aggrieved by order dated 20.04.2015 in Eviction Title Suit Nos. 26 of 2006 and 27 of 2006 whereby, application under Order VI Rule 17 C.P.C. has been dismissed, the present writ petitions have been filed. 2. The brief facts of the case are that, initially, a tenancy was created in the name of M/s Laddu Lal Jain. Mr. Laddu Lall Jain was the grandfather of the petitioner namely, Sumermall Jain. Title Eviction Suit No. 105 of 1980 was filed in which an exparte order dated 07.04.1983 was passed directing the defendant to vacate the suit premises. The defendant handed over possession of one shop and remaining two shops remained in possession of the defendants in Title Eviction Suit Nos. 26 of 2007 and 27 of 2007. It is stated that a new tenancy was created on 27.08.1983 in favour of the present petitioners. In the eviction suits, the defence of the defendants was struckoff vide order dated 17.11.2011 for default in depositing arrears of rent. The petitioners approached this Court in W.P.(C) No. 6044 of 2012 along with W.P.(C) No. 6034 of 2012 which were allowed vide order dated 28.02.2013 and the petitioners were permitted to lead evidence. After the plaintiff led evidence, the defendants' evidence was closed on 20.02.2015. Thereafter, husband of the plaintiff who was examined as P.W. 3 was recalled for crossexamination. At this stage, application under Order VI Rule 17 was filed on 25.03.2015 for incorporating the following facts in the written statement: 8(A) “That one another tenant of the suit building namely 'Vivek Traders' vacated his tenanted shop, sometime in the month of January, 2015 and handover vacant possession of the same to the present plaintiff namely Smt. Tanushree Dutta who after receiving possession of the same put lock on the door and is under the custody of the plaintiff. The area of the suit premises and the area of the shop which was vacated by the 'Vivek Traders' and handover vacant possession of the same to the plaintiff is same and identical. 8(B) That if the plaintiff reasonably and in good faith requires the suit premises then he could start her business in the said vacant shop which was vacated by the 'Vivek Traders' and handover vacant possession of the same to the plaintiff. 8(B) That if the plaintiff reasonably and in good faith requires the suit premises then he could start her business in the said vacant shop which was vacated by the 'Vivek Traders' and handover vacant possession of the same to the plaintiff. The plaintiff wants to evict the defendant from the suit premises with malafide intention, which is against the law. 8(C) That therefore it is clear that the plaintiff does not require the suit premises for her personal use as well as for the use of her husband for starting business and the present suit is only a pretext for illegal eviction of the defendant from the suit premises.” 3. The said application has been dismissed vide order dated 20.04.2015, against which the present writ petitions have been filed. 4. Mr. Rahul Gupta, the learned counsel for the petitioners submits that the application seeking amendment has been rejected only on the ground of delay. In view of the subsequent event, the defendants are entitled to lead evidence to establish that the plaintiff has no bonafide necessity in as much as, another shop owned by the plaintiff has been vacated sometime in January, 2015. The learned counsel for the petitioners refers to decision in “Kedar Nath Agrawal (Dead) & Anr. Vs. Dhanraji Devi (Dead) by LRs. & Anr.” (2004) 8 SCC 76 and “Sheshambal (Dead) through LRs. Vs. Chelur Corporation Chelur Building & Ors.”, (2010) 3 SCC 470 to submit that in an eviction suit, subsequent events can be taken on record. 5. As against the above, Mr. Indrajit Sinha, the learned counsel for the respondent submits that application dated 25.03.2015 seeking amendment in the written statement was belated. Through the said application the defendant sought to incorporate new facts which cannot be permitted after the parties led their evidence. Relying on decision in “Savitri Sahay Vs. Sachidanand Prasad” (2002) 8 SCC 765 , the learned counsel for the respondents submits that the choice rests with the landlord with respect to choice of the premises for which eviction is sought. It is further submitted that in application dated 25.03.2015, the petitioners failed to make out a primafacie case for incorporation of subsequent event. 6. Sachidanand Prasad” (2002) 8 SCC 765 , the learned counsel for the respondents submits that the choice rests with the landlord with respect to choice of the premises for which eviction is sought. It is further submitted that in application dated 25.03.2015, the petitioners failed to make out a primafacie case for incorporation of subsequent event. 6. From the materials brought on record, I find that in W.P.(C) No. 6044 of 2012 along with W.P.(C) No. 6034 of 2012, this Court ordered the trial court to conclude the trial within six months however, the suits have remained pending till date. The learned counsel for the respondent has referred to question no. 36 (counteraffidavit dated 21.07.2015) in the crossexamination of P.W. 3, after recall and submits that the question with respect to the subsequent event for which the petitioners filed application under Order VI Rule 17 C.P.C. was put to P.W. 3 and the witness has categorically denied that tenancy in favour of one Pawan Kumar Goel @ Pawan Kumar Agrawal was created and the said person has vacated the tenanted shop. In the application dated 25.03.2015, the petitioners have stated that the said 'Vivek Traders' vacated the tenanted premises sometime in January, 2015. The area of the suit premises and the area of the shop which was vacated by 'Vivek Traders' is same and the plaintiff is in possession of the said shop. Though, the reason assigned by the trial court for rejecting the amendment application may not be sound, I am of the opinion that dismissal of the application dated 25.03.2015 is proper. In view of the evidences led by the parties particularly, crossexamination of P.W. 3, after recall, amendment seeking incorporation of facts stated in paragraph nos. 8(A), 8(B) and 8(C) in application dated 25.03.2015 cannot be permitted. After the parties closed their evidence, application for amendment, which is not formal in nature, cannot be allowed. Needless to say that the defendant is entitled to take the benefit of crossexamination of P.W. 3, after recall. It is stated at bar that on 25.05.2015, plaintiffs' argument was closed and the suit was fixed for defendants' argument on 01.06.2015. 7. Considering the direction of this Court in W.P.(C) No. 6044 of 2012 along with W.P.(C) No. 6034 of 2012, the trial in both the suits would be concluded, expeditiously. 8. The writ petitions stand disposed of accordingly.