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2023 DIGILAW 376 (RAJ)

Chetan Das v. Jaiprakash Varlani

2023-02-01

VINIT KUMAR MATHUR

body2023
ORDER : Mr.Vinit Kumar Mathur, J. - The present writ petition has been filed against the order dated 23/09/2022 passed by Rent Tribunal (Senior Civil Judge), Chittorgarh, whereby the application preferred by the petitioner-defendant under Order 6, Rule 17 CPC for amendment of the written statement has been rejected. 2. Learned counsel for the petitioner submits that the petitioner being one of the legal heirs of Dharmdas @ Tekchand is in possession of a shop. The respondent-plaintiff being the owner of the shop on the strength of a registered Will dated 13/05/2011 filed an application before the Rent Tribunal Chittorgarh for eviction of the petitioner from the shop in question. On the application so preferred by the respondent, a written statement was filed by the petitioner. After filing the written statement, the petitioner came to know that there is one more Will dated 15/06/2013 which is in existence. The existence of Will dated 15/06/2013 came to the knowledge of the petitioner only on the receipt of summons dated 21/03/2020 issued in the case of Smt.Sheela Devi v. Khillu Ram and others. After the receipt of the summons of the case filed by Smt. Sheela Devi, the petitioner appeared before learned trial Court and while prosecuting the same, the petitioner came across the Will dated 15/06/2013. Learned counsel for the petitioner submits that in these circumstances, the petitioner preferred an application under Order 6, Rule 17 CPC for amendment of the written statement by incorporating the fact of existence of Will dated 15/06/2013 in his pleadings. Learned counsel for the petitioner submits that the fact of the Will dated 15/06/2013 was not within the knowledge of the petitioner before the summons received by him on 21/03/2020 (Annex.4) and, therefore, he is well within his right to file an application for amendment of the written statement. He submits that the learned trial Court has committed an error while rejecting the application vide order dated 23/09/2022 and he, therefore, prays that the writ petition may be allowed and the application preferred by the petitioner under Order 6, Rule 17 CPC may be allowed. 3. Per contra, learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner and submits that the petitioner was well aware of the fact of the existence of the Will dated 15/06/2013. 3. Per contra, learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the petitioner and submits that the petitioner was well aware of the fact of the existence of the Will dated 15/06/2013. He submits that in paragraph 19 of the case filed by Smt. Sheela Devi, she has mentioned and discussed about the Will in question and, therefore, it cannot be said that the petitioner was not aware of the fact that the Will dated 15/06/2013 is in existence. He further submits that a notice for eviction of the shop in question was also served on behalf of Moolchand way back in the year 2014. He also submits that the Will dated 15/06/2013 is a forged one, therefore, the same cannot be placed on record. He, therefore, submits that no interference is warranted in the order dated 23/09/2022 and the writ petition may kindly be dismissed. 4. I have considered the submissions made at the Bar and have gone through the order dated 23/09/2022 as well as other relevant record of the case. 5. The fact in the present case is that after filing of the written statement, the existence of the Will dated 15/06/2013 has come to the knowledge of the petitioner only on receiving the summons of the case filed by Smt. Sheela on 21/03/2020. Learned counsel for the respondents could not point out any document or anything on record to show that the petitioner was well aware of the Will dated 15/06/2013 and after due diligence also, the same could not be placed on record or could not be mentioned in the written statement filed by him. The existence of the Will dated 15/06/2013 came to the knowledge of the petitioner after filing of the written statement is proved from the documents placed on record. In the opinion of this Court, since a fact which was not within the knowledge of the petitioner at the time of filing the written statement after due diligence, has come to his knowledge after filing the written statement, therefore, the amendment sought for in the written statement deserves to be allowed. In the suit proceedings, the evidence has not yet started, therefore, no prejudice will be caused to the respondent, if the amendment sought for in the written statement is allowed. In the suit proceedings, the evidence has not yet started, therefore, no prejudice will be caused to the respondent, if the amendment sought for in the written statement is allowed. Needless to say, the respondent will get ample opportunity to file counter to the same. Thus, the learned trial Court has committed an error while rejecting the application preferred by the petitioner under Order 6, Rule 17 CPC. 6. The argument of learned counsel for the respondent that the Will dated 15/06/2013 is forged one is noted to be rejected for the reason that here in this case, the question of the adjudication of the Will is not involved and, therefore, no observation or comment can be made as far as the veracity of the Will in question. 7. In view of the discussions made above, the present writ petition is allowed. The order dated 23/09/2022 passed by learned Rent Tribunal is quashed and set aside. The application preferred by the petitioner under Order 6, Rule 17 CPC is allowed. Learned Rent Tribunal, Chittorgarh is directed to allow the amendments sought for and proceed thereafter in accordance with law. 8. The stay application and other pending applications, if any also stand disposed of.