IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.8848/2007 {Chand Ratan Daga Versus Additional District Judge No. 8, Jaipur City, Jaipur & Another} Date of Order :: 2nd July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. B.D. Agarwal for the petitioner Mr. R.K. Mathur for the respondent no.2 BY THE COURT: Heard learned counsel for the parties. 2. The matter has come on board for orders on an application filed on behalf of plaintiff - respondent to vacate the ex-parte interim stay order passed by this Court, but at the request of the learned counsel for both the parties, the final arguments were heard in the case. 3. Admit. 4. The plaintiff – respondent filed a suit for eviction in respect of rented premise which was decreed by the lower court and being aggrieved with the same, the defendant – petitioner preferred an appeal before the first appellate court. During the pendency of appeal, the tenant – petitioner filed an application under Order 6 Rule 17 CPC for amendment in the written statement on the ground that as per -2- contents of plaint, the plaintiff was residing in three rooms of house no. 405 belonging to his mother with her permission and now she has died and plaintiff will get some share in the property of his mother including three rooms wherein he is already residing there. These subsequent events are necessary to be taken on record by way of an amendment in the written statement. The application was contested by the plaintiff by filing a written reply wherein it was mentioned that Smt. Ganga Devi had executed a Will in respect of her property and according to her Will the plaintiff did not get any share in the property in house no. 405, therefore, the necessity of the disputed premise is still exists. The application for amendment has been filed by defendant only to prolong the litigation, so the eviction decree may not be executed against him. The trial court, after hearing the parties, dismissed the application under Order 6 Rule 17 CPC filed by defendant petitioner. The said order is under challenge in this writ petition. 5. The learned counsel for the petitioner contended that amendment sought in the written statement was necessary as the subsequent events are also to be taken into consideration -3- while deciding the appeal. The appeal is a continuation of suit itself, therefore, this fact being question of fact is relevant, therefore, first appellate court committed an illegality in dismissing the application of the petitioner. Mr. Mathur, the learned counsel for the plaintiff - respondent contended that as per Will executed by Smt. Ganga Devi, the plaintiff has got no share in the property in house no. 405, therefore, the necessity of the disputed premise still exists and the present fact regarding the death of Smt. Ganga Devi cannot be taken into consideration as subsequent event for the purpose of present case. He further contended that crucial date for deciding the fact of the requirement of landlord is the date of his application for eviction, therefore, the said fact or the subsequent event is not relevant and material for the purpose of deciding the present controversy involved in the appeal. In support of his contention he relied upon Gaya Prasad Versus Pradeep Srivastava {(2001) 2 Supreme Court Cases 604}. He, therefore, contended that the present application was filed only to delay the eviction proceedings, therefore, the trial court was fully justified in rejecting the -4- application. 6. I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the appellate court wherein it is specifically mentioned that as per Will executed by Smt. Ganga Devi, no property has been received by the plaintiff – respondent, therefore, the necessity of the rented premise still exists and present application has been filed only to delay the matter. The reasons assigned by the learned first appellate court appears to be fully justified in the facts and circumstances of the present case. I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same. 7. There is no merit in this writ petition and the same is, accordingly, dismissed with no order as to costs. 8. Since the writ petition itself has been dismissed, there is no need to pass any order on the application filed under Section 226(3) of the Constitution and the same also stands disposed of. (NARENDRA KUMAR JAIN),J. DK IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Civil Misc. Stay Application No. 946/2007 In S.B. Civil Writ Petition No.8848/2007 {Chand Ratan Daga Versus Additional District Judge No. 8, Jaipur City, Jaipur & Another} Date of Order :: 2nd July, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. B.D. Agarwal for the petitioner Mr. R.K. Mathur for the respondent no.2 Upon the dismissal of writ petition, the stay application does not survive and it also stands disposed of. (NARENDRA KUMAR JAIN),J. DK/-