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2021 DIGILAW 773 (RAJ)

Shri Mahesh Chand Jain v. Indradevi

2021-04-05

CHANDRA KUMAR SONGARA

body2021
ORDER 1. Instant writ petition has been filed by the petitioner challenging the impugned order dated 14.12.2016 passed by the Court of Senior Civil Judge cum Additional Chief Judicial Magistrate, Mahuwa District Dausa, in Original Civil Suit No.02/2015 titling as Indradevi & Others Vs. Mahesh Chand Jain, whereby the application under Order 14 Rule 5 of C.P.C. filed by the defendant-petitioner had been dismissed. 2. Facts in nut-shell are that an original civil suit was instituted by the respondents/plaintiffs with regard to eviction of the shop and amount of rent. The defendant-petitioner filed an application dated 05.05.2016 under Order 14 Rule 5 of C.P.C. (Annexure-4) with regard to issues framed, which was rejected, vide impugned order dated 14.12.2016. Hence, this writ petition before this Court. 3. Learned counsel appearing for the defendant-petitioner has submitted that the learned trial Court has committed serious illegality in dismissing the application filed by the defendant-petitioner. Counsel has further submitted that it has been stated in Para 2 of the suit that the respondent-plaintiff No.1 rented out her shop to defendant-petitioner from 10.03.1996 for a period of eleven-months on agreed amount of rent of Rs.3500/- per month with an annual increment of Rs.100/- in monthly rent. However, the present petitioner has stated in his reply to the suit that there was an agreement with regard to the shop, which was taken on rent and the defendant-petitioner had agreed to pay Rs.1000/- per month as rent with an annual increment of Rs.100/-. Lastly, counsel has prayed that the impugned order be set aside and the application (Annexure-4) filed by the petitioner may be allowed. 4. Per contra, learned counsel appearing for the plaintiffs-respondents, has opposed the submissions made by learned counsel appearing for the defendant-petitioner and submitted that the defendant-petitioner had filed the application only to delay the proceedings. 5. During the course of arguments, learned counsel appearing for the plaintiffs-respondents, has placed reliance upon the following judgments:- 1. Gunwant Singh Jhala Vs. Dr. Yuvraj Singh Jhala & Others, reported in 2019 (1) W.L.C. (Raj.) UC 324. 2. LRs. of late Shri Mohammed , B/C. AM Vs. Yasin Khan, reported in 2019 (2) W.L.C. (Raj.) 334. 6. Heard learned counsel appearing for the parties and perused the material made available on record. 7. Gunwant Singh Jhala Vs. Dr. Yuvraj Singh Jhala & Others, reported in 2019 (1) W.L.C. (Raj.) UC 324. 2. LRs. of late Shri Mohammed , B/C. AM Vs. Yasin Khan, reported in 2019 (2) W.L.C. (Raj.) 334. 6. Heard learned counsel appearing for the parties and perused the material made available on record. 7. The learned trial Court, vide its impugned order dated 14.12.2016, held that the proposed issue, which defendant-petitioner wishes to be framed, has already been covered in Issue No.3, which is obviously not correct looking to the aforesaid averments made by plaintiffs-respondents in Para 2 of the suit and the reply of the defendant-petitioner. 8. Judgments relied upon by the learned counsel appearing for the plaintiffs-respondents fail to advance the case of the respondents, as they are on different footing. 9. In view of above, this Court finds that the trial Court has committed illegality in passing the impugned order. Therefore, the impugned order dated 14.12.2016 is set aside and the application (Annexure-4) filed by the defendant-petitioner under Order 14 Rule 5 of C.P.C. is allowed. 10. Consequently, the writ petition stands allowed. 11. Miscellaneous applications, if any, also stand disposed of.