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2016 DIGILAW 288 (RAJ)

Brajesh Kumar v. Radhey Shyam

2016-02-19

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 21.02.2015 passed by the Additional District Judge No.3, Jodhpur Metropolitan ('the first appellate court'), 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 from the shop on the ground of bona fide necessity of his son Praveen Kumar. 3. The petitioner-defendant in the written statement claimed that another shop adjacent to the suit shop was lying vacant, which could be utilised for the purpose of son Praveen Kumar. 4. In the evidence led before the trial court and which was accepted by the trial court, it was indicated that shop adjacent to the suit shop was being utilised by landlord's another son Anil Kumar. Where after, the trial court decreed the suit. 5. Feeling aggrieved, the petitioner filed first appeal. During pendency of the appeal, the landlord's son Anil Kumar expired and the petitioner filed an application under Order 6, Rule 17 CPC, inter alia, indicating that the need of the landlord can now be satisfied by utilising the shop, which was allegedly being used by his son Anil Kumar and, therefore, the petitioner may be permitted to amend the written statement. 6. The application was opposed by the landlord, inter alia, on the ground that the shop, which was used by Anil Kumar is not available as the same is being utilised by him for doing the same business which was being carried on by Anil Kumar and along with that of property dealing. 7. The trial court while deciding the application, without dealing with the submissions made in the reply by the landlord came out with its own finding that the wife and children of the deceased Anil Kumar are in the family and, therefore, it cannot be said that the shop is not required. 8. It is submitted by learned counsel for the petitioner, which is not disputed by learned counsel for the respondent that in fact Anil Kumar was unmarried and, therefore, there is no question of wife or children being dependent or utilising the shop and, therefore, the first appellate court committed error in passing the order impugned. 9. 8. It is submitted by learned counsel for the petitioner, which is not disputed by learned counsel for the respondent that in fact Anil Kumar was unmarried and, therefore, there is no question of wife or children being dependent or utilising the shop and, therefore, the first appellate court committed error in passing the order impugned. 9. However, learned counsel for the respondent made submissions that the first appellate court was even otherwise justified in passing the order impugned. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. The sole ground given by the first appellate court for rejection of the application has been that the shop was being utilised by deceased Anil Kumar and the said Anil Kumar had wife and children also, is factually incorrect and probably was not even the submission of the landlord himself. However, the first appellate court has not dealt with any of the other submissions as raised in the reply and sought to be supplemented by learned counsel for the respondent in the present writ petition. 12. In view thereof, the order dated 21.02.2015 passed by the first appellate court is set aside. The matter is remanded back to the first appellate court to hear and decide the application filed by the petitioner afresh within a period of three weeks from the next date fixed before it i.e. 04.04.2016. 13. It goes without saying that the first appellate court would not be influenced by any of the observations made hereinbefore or the fact that the order dated 21.02.2015 has been set aside by this Court. 14. The writ petition stands allowed accordingly.