Vinod Kumar Garg and Others vs Munnalal Singhal

Rohit Arya, J.—This petition under Article 227 of the Constitution of India by defendants''/tenants'' is directed against the order dated 23/01/2015 passed by the trial Court. Application under Order VI Rule 17 CPC filed by the defendants''/tenants'' has been rejected.

Eviction suit has been filed by the plaintiff on the ground of bona fide need seeking eviction of the defendants'' from the non­ residential suit property.

Upon completion of the pleadings, trial Court framed issues wherein issue No.3 is to the effect whether the need of the suit shop is bona fide in nature and within the municipal limits of Morena and the plaintiff has no other suitable alternate accommodation available to him? Plaintiff and his witnesses'' have filed evidence on oath under Order XVIII Rule 4 CPC. Plaintiff''s witnesses'' remained present on as many as 05 occasions for cross­examination, namely; 04/02/2013, 08/10/2013, 12/12/2013, 15/01/2014 and 18/09/2014. As and when plaintiff''s witnesses'' were present, adjournment was sought for their cross­examination by the defendants''. Besides, on many occasions, the date for recording evidence was deferred though plaintiff''s witnesses'' were present due to filing of number of miscellaneous applications. Again, when the case was fixed for cross­examination on 23/01/2015, an application under Order VI Rule 17 CPC has been filed by the defendants'' seeking amendment in the written statement to the effect that on 10/01/2015, one of the tenants'' of a shop in the ownership of the plaintiff has vacated and handed over the possession to the plaintiff, therefore, need if any, stands fulfilled and no bona fide need exists.

The aforesaid application was replied by plaintiff and denied the allegations. It is submitted that as a matter of fact, the aforesaid shop is not of the ownership of the plaintiff instead the same is of his brother, namely; Govardan''s ownership. This fact is also mentioned while describing the suit shop in the map attached with the plaint by the plaintiff. To the same effect stated in the statement on oath filed under Order XVIII Rule 4 CPC. Hence, the aforesaid application is not bona fide in nature and only with an intention to delay the proceedings.

The trial Court considered the aforesaid application with the material available on record and has observed that issue No.3 as regards bona fide need and non­availability of suitable alternate accommodation has already been framed. The plaintiff at the time of filing of the suit has already described the aforesaid shop to be of the ownership of his brother in the map attached with the plaint and also in his statement made on oath made under Order XVIII Rule 4 CPC. The trial Court has also found that the conduct of the defendants''/tenants'' was also lacking bona fide inasmuch as there has been repeated efforts to seek adjournments for cross­examination of plaintiff''s witnesses'' on as many as 05 occasions. Even on the date, when the application under Order VI Rule 17 CPC., was filed, the witnesses'' of the plaintiff were present for cross­examination but were not cross­examined. Looking to the facts and circumstances of the case, the trial Court has rejected the application as the same was filed only to delay the eviction proceedings.

Having perused the order impugned, this Court is of the view that the trial Court has not committed any illegality or jurisdictional error while rejecting the application of the defendants''/tenants'' under Order VI Rule 17 CPC. Defendants'' have failed to justify their action of seeking adjournment for more than 05 occasions for cross­ examination of the witnesses'' of the plaintiff. Again, on the date, when the order impugned was passed by the trial Court, the plaintiff''s witnesses'' were present but the cross­examination was not done by defendants''. As regards amendment, in fact, the same stands explained in the map attached with the plaint and even in the examination­in­chief filed under Order XVIII Rule 4 CPC made a statement to the effect that the said shop is of the ownership of Govardhan, brother of the plaintiff, much earlier to filing of the instant application by the defendants''. Hence, the trial Court was justified having held that the instant application was lacking bona fide and was filed with an oblique motive to achieve the collateral purpose of delay for cross­examination of witnesses'' of the plaintiff.

That apart, an issue has already been framed in the context of non­availability of alternate accommodation as issue No.3. Therefore, the defendants'' are always free to lead evidence and cross­examine the plaintiff''s witnesses'' in context thereof. Under such circumstances, this Court refrains from interfering with the order impugned passed by the trial Court.

Counsel for the petitioners'' has relied upon the judgment of the Hon''ble Supreme Court reported in Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, and a Division Bench decision of this Court reported in Kamla Bai (Smt.) Vs. Smt. Preeti Raizada, to bolster his submission that the amendment was necessitated due to subsequent development and, therefore, the amendment ought to have been allowed.

Having perused the aforesaid judgments, this Court is of the view that the principle underlying under Order VI Rule 17 CPC as explained in the aforesaid two judgments is beyond any doubt. But as facts of both those cases in the context whereof the judgments were rendered are distinguishable to the facts in hand and are of no assistance to the petitioners''/defendants''.

The trial Court keeping in mind the entire factual matrix, conduct of the parties and nature of controversy involved has passed the impugned order which has already been held impeccable in nature in exercise of power of superintendence under Article 227 of the Constitution of India.

Accordingly, writ petition sans merit and is hereby dismissed.