Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 244 (RAJ)

Bhagwan Mohta v. Rajveer Singh

2016-02-12

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against order dated 19.01.2016 passed by the Additional District Judge No.2, Bikaner camp court Sri Dungargarh, whereby, the application filed by the petitioner under Order 6, Rule 17 CPC seeking amendment in the written statement has been rejected. 2. The respondent-plaintiff filed a suit for eviction against the petitioner. The eviction was sought from the shop, boundaries whereof were indicated in para 1 of the plaint. 3. The petitioner filed his written statement and disputed the averments made in the plaint. 4. Thereafter, it appears that some dispute arose between the parties qua the staircase and roof of the shop and petitioner filed a suit for injunction against the landlord. 5. In the said suit, an application under Order 39, Rule 1 and 2 CPC was filed. The application filed by the petitioner was partly accepted and the landlord was injuncted from dispossessing the petitioner without due process of law qua the shop in question. However, it was found that petitioner had no prima facie case qua the staircase and the roof. 6. Where after, the present application was filed by the petitioner seeking amendment in the written statement to allege that petitioner was having the shop, staircase and the roof in his tenancy and the plaintiff has wrongly indicated that only shop was let out to the petitioner. 7. The application was opposed by the landlord, inter alia, on the ground that averments contained in the application were baseless. 8. The trial court after hearing the parties, came to the conclusion that there was no relevance of the amendment sought and, consequently, dismissed the application. 9. It is submitted by learned counsel for the petitioner that the trial court committed error in dismissing the application filed by the petitioner as the amendment sought was relevant, inasmuch as, a dispute has arose between the parties regarding the actual tenancy and, therefore, the order impugned cannot be sustained. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 11. It is true that the trial court has rejected the application cursorily, however, while going through the record as available, it appears that in the final analysis the rejection of the application was justified. 10. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 11. It is true that the trial court has rejected the application cursorily, however, while going through the record as available, it appears that in the final analysis the rejection of the application was justified. The reason indicated in the application seeking amendment is that petitioner left out certain important facts while filing the written statement and it was necessary to include those facts. The trial in the suit has already commenced, wherein, issues have been framed and affidavits of plaintiff’s witnesses have also been filed. 12. The petitioner has failed to make any averment in the application in consonance with the proviso to Order 6, Rule 17 CPC as to why despite due diligence, the said averments could not be included in the written statement before commencement of trial. 13. This Court in Smt. Meera Ben v. Amritlal & Anr. S.B. Civil Writ Petition No.1669/2015 decided on 18.02.2015 while dealing with the requirements of proviso to Order 6, Rule 17 CPC has held that the said averments are jurisdictional and in absence whereof the application is not maintainable. 14. Besides the above, from the material as indicated hereinbefore, it appears that after the suit was filed by the petitioner seeking injunction against the landlord and the injunction application was partly accepted by the trial court excluding the staircase and the roof, the petitioner became wiser and only in a view to obviate the fact that the allegations made in the present plaint regarding the premises on rent have not been denied by the petitioner, the present amendment has been sought. The attempt on part of the petitioner to change the stand, by way of present amendment, cannot be permitted. 15. In view of the above discussion, there is no substance in the writ petition and the same is, therefore, dismissed.