Purshottam Rathore vs Sonu

Rohit Arya, J.—Heard.

This petition under Article 227 of the Constitution of India by plaintiff is directed against the order dated 21/07/2014 passed in civil suit No. 18A/2013 by III Civil Judge, Class-II, Guna District Guna. By the aforesaid order, an application filed by the petitioner/plaintiff under Order VI Rule 17 CPC has been dismissed.

Plaintiff has filed suit for eviction against the defendant'', inter alia contending that after death of his father on 05/11/1997, he has succeeded to the suit property by virtue of being legal heir, on grounds of arrears of rent and bona fide need as envisaged under the provisions of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as ''the Act'').

Defendant has filed written statement and denied plaint allegations. It is also denied that suit property is of the ownership of plaintiff.

On the aforesaid pleadings of the parties, trial Court framed issues and allowed parties to lead evidence. Plaintiff has examined the witnesses and case was fixed for cross-examination of plaintiff''s witnesses. As such, the trial has commenced. After trial being at the advanced stage, plaintiff filed the instant application under Order VI Rule 17 CPC to bring on record that he has succeeded to the suit property by virtue of registered ''will''.

Trial Court while addressing upon the aforesaid application has found that the plaintiff has not explained the circumstances in the facts and circumstances of the case which prevented him from bringing on record the ''will'' at the time of filing of the suit or before the trial had commenced as the fact sought to be brought on record is one which was very much available and within knowledge of the plaintiff at the time of filing of the suit and the proposed amendment is not based upon subsequent event. Therefore, trial Court while addressing upon the jurisdictional facts as to whether in spite of due diligence, plaintiff could not bring the proposed amendment before commencement of trial, the trial Court was not satisfied as regards belatedly amendment sought to be brought on record. More over, objection in that behalf was taken by the defendant as far as back on 10/01/2014 and the proposed amendment was sought to be incorporated on 20/06/2014. Accordingly, the application dismissed.

Having heard counsel for the petitioner and upon perusal of the order impugned, this Court is of the opinion that the trial Court was justified having dismissed the application for the reason that in terms of proviso to rule 17 of Order VI CPC, the Court was obliged to satisfy itself that despite due diligence, the plaintiff could not make averments with reference to alleged ''will'' in the suit whereas ''will'' claimed by the applicant/plaintiff was very much in existence at the time of filing of the suit which is filed as early as in the year 2013. More over, in the instant suit, the plaintiff in paragraph 1 of plaint pleaded that the suit property is his own property being legal heir of his deceased father, Budhmal Rathore who stated to have died on 05/11/1997. Therefore, it is observed that the plaintiff is always free to produce the evidence in the context of averment made in paragraph 1 of the plaint. It may not be out of place to mention that the instant suit relates to a dispute between the landlord and tenant and not a title suit.

The law is well settled as regards burden to prove and establish that the plaintiff has a right to hold, control and manage the suit property while seeking eviction of a tenant on any of the grounds specified under the Rent Act in contrast to the suit for declaration based on title. (Referred to case reported in Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, which was followed by a coordinate Bench of this Court reported in Ram Pukar Singh Vs. Bhimsen and Another,

With the aforesaid observation, petition stands dismissed.