Pushpendra Kumar vs Madhu Kumari

Arun Bhansali, J—This writ petition has been filed by the petitioner aggrieved against order dt. 30.03.2015 passed by the trial Court, whereby, the application filed by the petitioner under Order VI, Rule 17 CPC seeking amendment in the written statement has been rejected. The plaintiff-respondent filed a suit for eviction of the petitioner from the suit premises on the ground of bona fide necessity.

The petitioner-defendant filed written statement and denied the averments made in the plaint.

The trial Court initially by its judgment and decree dt. 27.04.2005 dismissed the suit, against which, the respondent-defendant filed first appeal and the first appellate Court by its order dt. 20.08.2007 allowed the appeal and remanded back the matter to the trial Court.

The petitioner preferred second appeal before this Court, which was dismissed by order dt. 11.09.2008; the petitioner filed application under Order VI, Rule 17 CPC on 14.07.2014 seeking amendment in the written statement; the amendment was sought on the foundational aspect that plaintiff and her family members are involved in purchase and sale of properties and have other properties in Udaipur; it was claimed in the application that during pendency of the suit, the shoe showroom has been renovated and inaugurated on 03.05.2004, property near Delhi Gate, Udaipur has been transferred by plaintiff and other family members.

An allegation has been made that the head of the family is plaintiff''s brother-in-law Gehari Lal Mochi and he has purchased the Jai Singhani Building by separate registered sale deeds and the intention is to get the shops vacated; the petitioner sought to add para 4 to 10 in the additional pleas raised in the written statement; it was, inter alia, claimed that the property has been purchased by seven different sale deeds in the year 1994; property situated at Delhi Gate has been sold in the year 1992 by different sale deeds, another sale deed dt. 24.09.2001 was executed by petitioner''s husband, several shops situated in Jai Singhani Building, wherein, the suit shop is situated has been got vacated by Gehari Lal Mochi (Plaintiff''s brother-in-law) and several vacated shops are with said Gehari Lal Mochi; plaintiff''s son Mahesh has transferred property on 16.04.2008 and the plaintiff''s family members have purchased certain shops; ultimately, it was prayed that the written statement may be permitted to be amended.

The application was opposed by the plaintiff; it was, inter alia, indicated that the shop in possession of plaintiff''s husband, wherein, shoe showroom is existing is not owned by plaintiff/her husband and in contemplation of getting the suit shop vacated the business has been started, which cannot eclipse the bona fide requirement; the rest of the averments made in the application regarding the business of petitioner and her family members regarding sale and purchase of the property were denied; the averments/allegations made regarding Gehari Lal Mochi were also denied; it was further submitted that the written statement was sought to be amended after 14 years and have no relation with the subject matter of the suit; further, para 4 to 10 sought to be inserted by the plaintiff were also replied to by the plaintiff; ultimately, it was prayed that the application seeking amendment be dismissed.

The trial Court after hearing the parties came to the conclusion that the plaintiff has denied the right or interest in any of the properties, which have been alleged in the proposed amendment and as the petitioner has made allegations regarding the family members of the petitioner having purchased/sold the suit properties, the petitioner was not entitled to seek amendment in the written statement and, consequently, dismissed the application filed by the petitioner.

It is submitted by learned counsel for the petitioner that the trial Court committed error in rejecting the application filed by the petitioner; the petitioner with due diligence had filed an application and has made averments regarding acquisition of possession of properties by the plaintiff and her family members and merely on account of a bald denial in the reply to the application, application could not have been rejected and, therefore, the order impugned deserves to be set aside.

Learned counsel for the respondent caveator vehemently opposed the submissions made by learned counsel for the petitioner; it was submitted that the first appellate Court remanded the matter in the year 2007 after setting aside the decree passed by the trial Court and the present application has been filed after eight long years; the averments made in the application are absolutely vague and has nothing to do with the bona fide requirement of the plaintiff; the entire allegation made pertain to the family of the plaintiff and the respondent has specifically denied the averments made in the application and, therefore, the trial Court was justified in rejecting the application filed by the petitioner; it was submitted that no interference is called for in the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India.

I have considered the rival submissions and have perused the material placed on record.

It is surprising that an averment has been made by the petitioner that despite remand of the suit by the first appellate Court by its judgment dt. 20.08.2007 and dismissal of second appeal by this Court on 11.09.2008, nothing material happened before the trial Court for over six years when the application under Order VI, Rule 17 CPC was filed by the petitioner on 14.07.2014; the very fact that the suit filed in 1998 has been dragged over six long years without any material progress speak volumes of the conduct of the petitioner as well as the plaintiff and probably an unintended support of the trial Court in not proceeding with the matter, which cannot be appreciated.

A bare look at the amendment application filed by the petitioner, indicates that the petitioner in the written statement filed on 08.03.2000 made a bald denial of the bona fide requirements of the plaintiff and it was claimed that the plaintiff''s husband was conducting his shoe business in the shop next to the suit shop and her husband has other shops also; however, in the proposed amendment, the petitioner has sought to amplify and expand the scope of defence by, inter alia, claiming that the plaintiff and her family members are involved in sale and purchase of properties and plaintiff''s brother-in-law Gehari Lal Mochi has purchased several parts of the building, wherein, the suit shop is situated in different names and has initiated proceedings for eviction and has obtained possession etc. of several shops; further, averments have been made regarding the purchase and sale of properties by said Gehari Lal Mochi and other family members of certain properties; though neither any specific dates etc. have been indicated by the petitioner nor it appears that any documentary proof has been submitted in support of such plea.

From the nature of averments made in the application, it appears that the said transactions have happened long back, inasmuch as, the petitioner has made reference to certain transactions pertaining to years 2001 and 2008; none of the averments sought to be inserted in the written statement, appears to have any implication qua the bona fide requirement of the petitioner and it appear that the said amendment has been sought to broad base the defence taken by the petitioner by filing the written statement in the year 2000; the focus of the amendment essentially is towards the conduct and activities of Gehari Lal Mochi, which apparently cannot form the subject matter of the present suit and, therefore, the amendment sought being beyond the scope of the present suit, was rightly rejected by the trial Court though for different reasons.

From the above facts and circumstances of the case and discussion hereinabove, it cannot be said that the amendment sought by the petitioner was in any manner germane for deciding the issues involved in the matter. Consequently, there is on substance in the writ petition and the same is, therefore, dismissed. The stay petition is also dismissed.