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2017 DIGILAW 1655 (RAJ)

Dineshchand Gupta v. Govindnarayan

2017-07-25

DINESH CHANDRA SOMANI

body2017
JUDGMENT Dinesh Chandra Somani, J. - The instant petition under Article 227 of the Constitution of India has been filed by the defendant/petitioner assailing the order dated 20/08/2015 passed by the Senior Civil Judge, Dausa (hereinafter referred as "the learned trial Court") in Civil Suit No. 22/2000 titled as Govindnarayan vs. Dineshchand, whereby the learned trial Court has dismissed the application filed by the defendant/petitioner under Order 6, Rule 17 of CPC. 2. Material facts necessary for disposal of this petition are that the plaintiff/respondent has filed a civil suit for eviction of the suit shops and recovery of rent against the defendant/petitioner on the ground of reasonable and bonafide necessity of the shops for his sons Sanjay and Pawan, default in payment of rent and material alteration in the rented premises. The defendant/petitioner filed written statement on 06/09/2001 denying the averments of the plaint. 3. After completion of the pleadings, the learned trial Court framed issues on 25/01/2012 and fixed the case for plaintiff''s evidence. Plaintiff''s evidence was closed on 01/09/2012 and the case was fixed for defendant''s evidence. At the stage of defendant''s evidence, defendant/petitioner filed the application under Order 6, Rule 17 read with section 151 of CPC stating therein that the plaintiff/respondent has made construction of second and third floor over the shops in question and he put a sign board on these shops mentioning the fact that he wants to let out the newly constructed premises. The plaintiff/respondent filed reply to the application stating therein that the petitioner is having knowledge of this construction since the year 2008 and he also filed a suit under Section 24 of the Rent Control Act, 2001. He also stated that he did not construct the commercial premises over the shops in question, rather he got the construction for residential purposes. He further submitted that the defendant/petitioner filed the petition with intention to delay the suit proceedings and prayed to dismiss the application. After hearing learned counsel for the parties, the learned trial Court dismissed the application filed by the petitioner vide impugned order dated 20/08/2015. Being dissatisfied with the impugned order, the defendant/petitioner has approached this Court by way of this petition. 4. Mr. After hearing learned counsel for the parties, the learned trial Court dismissed the application filed by the petitioner vide impugned order dated 20/08/2015. Being dissatisfied with the impugned order, the defendant/petitioner has approached this Court by way of this petition. 4. Mr. Kapil Gupta, learned counsel for the petitioner submits that the learned trial Court has failed to appreciate the fact that the plaintiff/respondent has filed the suit for eviction on the ground of bonafide necessity and in cross-examination in Court, he admitted the fact that he made the construction over the shops in question and he further admitted the fact that he wants to let out the newly constructed premises, which clearly shows that the plaintiff has no reasonable and bonafide necessity and he filed the suit on frivolous ground of necessity. Learned counsel for the petitioner also submits that the learned trial Court did not consider the fact that in reply to the application filed by the petitioner under Section 24 of the Rent Control Act, 2001, the plaintiff/respondent admitted the fact that he obtained permission for construction in the year 2008, which makes it clear that the fact of construction over the shops in question is a subsequent event, which is required to be taken on record for just and proper adjudication of the suit. 5. Learned counsel for the petitioner further submits that the learned trial Court has dismissed the amendment application filed by the petitioner, on the ground that the petitioner did not mention the fact that when the alleged construction has been made, whether the construction was made subsequent to filing of the written statement or prior to that ? Whereas, the plaintiff himself stated in his cross-examination that he made the constructions in the year 2008. Learned counsel also submits that the plaintiff himself stated in reply to the petitioner''s application filed under Section 24 of the Rent Control Act, 2001 that he obtained permission from the local body in the year 2008 and made the constructions thereafter. Therefore, the aforesaid observation of learned trial Court, is factually incorrect. 6. Per contra, Mr. Rajesh Chaturvedi, learned counsel for the respondent opposed the arguments of learned counsel for the petitioner and submits that the construction over the shops was made in the year 2008, which fact is well within the knowledge of the petitioner since beginning. Therefore, the aforesaid observation of learned trial Court, is factually incorrect. 6. Per contra, Mr. Rajesh Chaturvedi, learned counsel for the respondent opposed the arguments of learned counsel for the petitioner and submits that the construction over the shops was made in the year 2008, which fact is well within the knowledge of the petitioner since beginning. Learned counsel also submits that the petitioner filed three more applications for amendment, prior to the present application, which were dismissed by the learned trial Court, finding the same to be frivolous. In earlier applications for amendment, the petitioner did not seek the proposed amendment, as such it is clear that the defendant/petitioner has filed the application, just to delay the disposal of the suit filed by the plaintiff/respondent. In support of his contentions, learned counsel for the respondent has placed reliance on following cases :- 1. 2014(2) WLC (Raj.) 480 Kailash Chand vs. Gyan Chand Chordia (Jain) & Anr. 2. 2013 (4) DNJ (Raj.) 1518 LR''s of late Smt. Jannat Joje Chhipa vs. Sridhar & Ors. 3. AIR 2001 Supreme Court 803 Gaya Prasad vs. Pradeep Shrivastava 4. 2015 WLC (Raj.) UC 436 Ramchandra vs. Shri Narsingh Pathak & Ors. 5. 2017 (1) (Raj.) UC 499 Mudra Electronics vs. Dilip Minda 6. Copy of judgment dated 09/04/2014 passed by Coordinate Bench in SB Civil Writ Petition No. 923/2014 Mahendra Goyal & Anr. vs. Smt. Sita Devi (since deceased) through LR''s. 7. Submissions of learned counsel for the parties and perusal of material placed before us, reveal that the plaintiff/respondent has filed the suit for eviction and recovery of arrears of rent against the defendant/petitioner in the year 2001 on the ground of reasonable and bonafide necessity of suit shops for his sons Sanjay and Pawan, default in payment of rent and material alteration. The defendant/petitioner filed his written statement on 06/09/2001 denying the averments made in the plaint. After completion of pleadings, learned trial Court framed issues on 25/01/2012. After completion of plaintiff''s evidence, the defendant/petitioner filed the application for amendment at the stage of defendant''s evidence. The defendant/petitioner filed his written statement on 06/09/2001 denying the averments made in the plaint. After completion of pleadings, learned trial Court framed issues on 25/01/2012. After completion of plaintiff''s evidence, the defendant/petitioner filed the application for amendment at the stage of defendant''s evidence. It also reveals that during pendency of the civil suit, the defendant/petitioner filed an application under Section 24 of the Rent Control Act, 2001 before Rent Tribunal, Dausa on 03/03/2008 stating therein that the respondent herein has started construction of second and third floor over the suit shops in unsafe manner and, that too without permission of Nagar Palika. This fact proves that the alleged construction over the suit shops was started in the year 2008, which is in the knowledge of the defendant/petitioner since beginning. It also reveals that during cross-examination on 01/09/2012, the plaintiff/respondent denied the suggestion that the premises constructed over the suit shop is showroom and the same is not for residential purpose. The plaintiff also deposed that the construction made over the suit shops on first and second floor, is for residential purpose only and the same is not for commercial purpose. 8. The defendant/petitioner filed the present application for amendment on 23/04/2015 stating therein that before some time, the plaintiff completed the construction of commercial premises including three shops and showroom on first floor and three shops on second floor. It is also stated that the plaintiff has put a sign board of "To Let" over the property. Along with the application, the defendant/petitioner also filed a photograph of the sign board. It reveals from the photograph that the plaintiff/respondent has put a sign board over the premises, showing that the shops and office, showroom etc. are available on rent. Conjoint reading of the amendment application, reply of the same filed by the plaintiff/respondent and statements of the plaintiff given in his cross-examination, reveal that the plaintiff has put the sign board recently, and prior to that he used to say that the construction made over the suit shops, is for residential purpose only. 9. The learned trial Court has dismissed the application observing that the defendant/petitioner has not specified as to when the construction was made over the suit shops, either after filing of the written statement or prior to that. 9. The learned trial Court has dismissed the application observing that the defendant/petitioner has not specified as to when the construction was made over the suit shops, either after filing of the written statement or prior to that. Whereas, it is proved from the application filed by the petitioner under Section 24 of the Rajasthan Rent Control Act, 2001 and reply of the same filed by the plaintiff/respondent that the construction over the suit shops was made in and after the year 2008 i.e., after many years of filing of the written statement but the learned trial Court has failed to consider the documents available on the record, therefore, the observation of the learned trial Court is factually incorrect. 10. In reply to the amendment application, the plaintiff/respondent did not controvert the fact that he recently completed the construction of shops and showroom on first and second floor over the suit shops. According to the petitioner, the construction continued for a long time, and the newly constructed premises are lying vacant since it''s completion, and the plaintiff has put a sign board of his intention to let out the shops and showroom. There is nothing on record to discard the contention of the petitioner at this stage. It is not the case of the plaintiff/respondent that the said sign board was put by him long back. In these circumstances, it appears that the construction over the suit shops was completed and sign board of "To Let" was put before some time of the amendment application and before putting the sign board of "To Let", the plaintiff used to say that the construction made on first and second floor over the suit shops, is for residential purpose only and as and when he put the sign board, the defendant/petitioner has moved the application for amendment in his written statement, for the said subsequent event. In these circumstances, it was not possible for the petitioner to seek the proposed amendment in earlier applications. To us, the amendment application has been filed without delay. 11. We perused the copies of judgments cited by learned counsel for the respondent. Due to change in facts and circumstances of the case, the cited judgments are not of much help to the plaintiff/respondent at this stage. 12. To us, the amendment application has been filed without delay. 11. We perused the copies of judgments cited by learned counsel for the respondent. Due to change in facts and circumstances of the case, the cited judgments are not of much help to the plaintiff/respondent at this stage. 12. As discussed above, if the impugned order passed by the learned trial Court is allowed to continue, it will be a manifest failure of justice. 13. Having regard to the submissions made by learned counsel for the respective parties and the material made available on record as well as the reasons recorded by the learned trial Court in support of the impugned order, I find it a fit case in which this Court must invoke it''s extraordinary jurisdiction of superintendence conferred to it under Article 227 of the Constitution of India to quash and set aside the impugned order. 14. In view of above, the petition is allowed and the impugned order dated 20/08/2015 passed by the Senior Civil Judge, Dausa is quashed and set aside and the application dated 23/04/2015 filed by the defendant/petitioner under Order 6, Rule 17 of CPC, is allowed and the learned trial Court is directed to proceed further in the matter, taking amended written statement on record. No costs. 15. In view of above, the stay application also stands disposed of.