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2019 DIGILAW 1978 (RAJ)

Naseem v. Ramzan.

2019-07-16

DINESH MEHTA

body2019
JUDGMENT Dinesh Mehta, J. - The present writ petition is directed against the order dated 25.02.2019 (Annexure-5) passed by the learned Additional Chief Judicial Magistrate-cum-Rent Tribunal, Jodhpur Metropolitan, Jodhpur (hereinafter referred to as "the Tribunal"), vide which the petitioner's application under Order 6 Rule 17 of the Code of Civil Procedure has been rejected. 2. The facts in brief are that the original petitioners (respondents No.1 to 4 herein) filed an application under Sections 9 (a)(f)(i)(j)(m)(ii) & Section 6 read with Sections 18 & 22 of the Rent Control Act, 2001 (hereinafter referred to as the "Act of 2001"), seeking eviction of the defendants, essentially on the ground of personal need and bonafide necessity. In pursuance to the petition so filed, the non-applicants (petitioner and proforma respondent No.5 & 6 herein) filed a written statement on 02.07.2011 and denied the plaintiffs' assertion regarding personal need and bonafide necessity qua the subject property. 3. After framing of the issues, when the plaintiffs' evidence was recorded and the petition was at the stage of defendants' evidence, they filed an application under Order 6 Rule 17 of the Code of Civil Procedure on 11.08.2016, interalia, seeking insertion of certain paragraphs as paras No.9(8)(1) and 9(8)(2) in their written statement, with a view to incorporate requisite pleadings to the effect that original petitioners-landlords were having other residential properties where they could move/shift their family. They also wanted to establish that there was no personal need and bonafide necessity, as far as the suit property situated in Chandawalon Ki Haveli, Ghasmandi, Jodhpur is concerned. 4. The original-petitioners filed a reply to the aforesaid application on 22.10.2016 and objected petitioner's amendment application on the ground that the same is highly belated and the defendants-applicants have filed the present application with incorrect facts, simply with a view to protract the proceedings. The learned Trial Court rejected petitioner's application under Order 6 Rule 17 of the Code of Civil Procedure, vide its order dated 25.02.2019 with the following observations: 5. Mr. The learned Trial Court rejected petitioner's application under Order 6 Rule 17 of the Code of Civil Procedure, vide its order dated 25.02.2019 with the following observations: 5. Mr. Narendra Thanvi, learned counsel for the petitioner calling in question, the order dated 25.02.2019, passed by the learned Tribunal, argued that the learned Tribunal has erred in rejecting petitioner's application under Order 6 Rule 17 of the Code of Civil Procedure, simply because petitioner's other application under Order 8 Rule 1(a)(iii) of the Code of Civil Procedure had been rejected by the Tribunal, vide its order dated 05.05.2018. He further submitted that the amendment or the additional facts, which the petitioner wanted to introduce in the written statement, were relevant and necessary for the purpose of setting out her defence. Merely because the petitioner has come to know about the factum of additional residential property in the ownership and possession of the original-petitioners, the present petitioner(tenant) cannot be precluded from bringing these facts on record. Referring to the plaint (eviction petition), learned counsel for the petitioner argued that it was required by the original petitioners to have disclosed all relevant facts. He further argued that since the original petitioners-landlords did not make assertion that they do not have any other property, the tenant did not inquire about such fact and thus, could not make categorical assertion that landlord(s) are having ownership of other properties, in their written statement. 6. Learned counsel for the petitioner argued that the technicalities should not defeat the cause of justice and the facts, which go to the root of the matter should have been allowed to be incorporated by the Tribunal below. 7. Mr. Usman Ghani, learned counsel appearing for the respondents-landlord, on the other hand, supporting the order impugned passed by the Tribunal below, argued that the petitioner's amendment application filed on 11.08.2016 was highly belated, more particularly, when the issues had long been framed by the Tribunal and the plaintiffs' evidence was over. 8. I have heard learned counsel for the parties and given my consideration over the submissions made at the bar and the documents placed on record. 9. Indisputably, the petitioner-tenant had filed the written statement on 11.07.2011 and there was not even a whisper or suggestion that the original-petitioners were having any other residential accommodation, due to which their necessity qua the suit property, was non-existent. 10. 9. Indisputably, the petitioner-tenant had filed the written statement on 11.07.2011 and there was not even a whisper or suggestion that the original-petitioners were having any other residential accommodation, due to which their necessity qua the suit property, was non-existent. 10. The defendant-petitioner has woke up from her slumber after five years of filing written statement and have sought to introduce certain new facts, viz. the original petitioners-landlord are having other properties, in which they can shift their family. 11. In my considered opinion, the amendment sought by the petitioner is clearly hit by proviso to Rule 17 of Order 6 of the Code of Civil Procedure, which mandates that no amendment be allowed, if the trial of the suit has commenced. 12. In the instant case, not only the issues have been framed, but also the plaintiffs' evidence is over, hence, the amendment as prayed by the petitioner can not be allowed. If the amendment sought is allowed, it would prejudice the case of the original petitioners, inasmuch as, they will not be permitted to lead their evidence, let alone the fact that the suit proceedings would be unnecessarily protracted. 13. That apart, the amendment prayed for by the petitioner, would change the stand of tenant altogether, inasmuch as, in her original written statement her case was confined to the fact that the necessity of the original-petitioners qua this property was not bonafide; if the amendment is allowed, the stand would be altogether different in the sense that they would be contending that the landlords are having other accommodation, where they can shift their family. 14. As an upshot of above discussions, I do not find any infirmity or illegality in the order dated 25.02.2019, for which the writ petition is liable to be dismissed. 15. This Court however finds substance in the argument of Mr. Thanvi that the Tribunal below was not justified when it based its order with respect to the application under Order 6 Rule 17 of the Code of Civil Procedure upon rejection of petitioner's application under Order 8 Rule 1 of the Code of Civil Procedure. As a matter of abundant caution, the Court ought to have decided both the applications together, so as to have a holistic and pragmatic view. 16. As a matter of abundant caution, the Court ought to have decided both the applications together, so as to have a holistic and pragmatic view. 16. In the present case, the Tribunal ought to have decided the amendment application, without being influenced by the factum of rejection of petitioner's application under Order 8 Rule 1(a)(iii) of the Code of Civil Procedure. It is true that while passing the order impugned, the Tribunal has given additional reasons, but the same revolve around the fact that various opportunities for leading evidence had been granted to the petitioner. 17. Be that as it may, since this Court has affirmed the order dated 25.02.2019, passed by the Court below on other reasons indicated above, no further order is required to be passed on the argument so advanced by Mr. Thanvi. 18. The writ petition fails. 19. The Stay Petition No.9635/2019 also stands dismissed.