CW 12822/08 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.12822/08 Smt. Lata Askandani & Ors. Versus Sarita Mehata & Anr. DATE OF ORDER : 04/05/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Arvind Bhardwaj, for petitioner Mr. Ashwani Chobisa, for respondent *** Matter has come up on application U/Art.226 (3) of the Constitution for vacation of ex-parte stay order passed by this court dt.20th November, 2008, but with the consent of parties, it is finally decided at this stage. Respondent-plaintiff filed a suit for eviction u/s.9 of Rajasthan Rent Control Act, 2001 for reasonable and bonafide necessity in the year 2006. Smt. Lata Askandani, who was the original tenant, filed written statement immediately after the service was effected upon her. However, she died on 2nd December, 2006. Application was filed by the respondent-plaintiff for taking legal heirs on record on 16th January, 2007 which was allowed on the same day. However, amended cause title was filed on 1st June, 2007 and as informed to this court, notices were CW 12822/08 [2] accepted by the Counsel already representing the original tenant. Issues were framed on 31st October, 2007 and thereafter, matter was listed for recording evidence of respondent-plaintiff on 10th January, 2008. However, it was adjourned on 11th March, 2008. On the said date, application was filed by the petitioner-defendant seeking amendment in the written statement in Para 4 of their application Ann.3. That apart from the property which was let out to the petitioner, there is other property also as alleged to be owned by the respondent-plaintiff which has been let out in the year 2007 to other entrepreneurs of which details have been referred to. It has been specifically averred by the petitioner that 36X35 sq.ft. has been let out to Shubh Financial, Shubh Deep Financial, Shubh Placement and Reliance Money at Rs.25/- per sq.ft. and apart from it, property has also been let out to Khadi Bhandar & India Motors. Thus, what the petitioner wanted to show by seeking amendment is that there was no personal & bonafide necessity of the respondent-plaintiff for seeking eviction from the property in question. Respondents filed their reply to the application seeking amendment. However, the CW 12822/08 [3] learned Tribunal rejected their application vide order Ann.5 dt.29th August, 2008. I have heard counsel for parties and perused the order impugned. Learned Tribunal infact was persuaded by the respondent-plaintiff as pleaded in their petition that plaintiff is the landlord only of the property in question and no other property is in their possession and since there was a delay in filing application seeking amendment despite that it was in their knowledge while filing suit for damages on 15th May, 2007, that property was let out to other commercial organizations and in such circumstances, delay which has been caused in filing of the present application dis-entitles from seeking amendment as prayed for. In opinion of this court, the finding which has been recorded by learned trial Judge in regard to seeking amendment cannot be said to be legally sustainable for the reason that after the petitioner came on record as legal heirs on 1st June, 2007, on two days the matter was adjourned on 31st October, 2007, issues were framed and without loss of time, application was filed CW 12822/08 [4] seeking amendment as prayed for in their application Ann.3. So far as their due deligence is concerned, the suit which was filed by the petitioner for damages which has been referred to by the Tribunal in its order certainly goes to show that in 2007 the property was let out as alleged by the petitioner and within the short period available at their disposal application was filed seeking amendment and since the application was filed by the respondents-plaintiff for eviction on account of personal and bonafide necessity the amendment which the petitioner sought for to show that property other than what has been let out to them is being let out to other commercial organization in the year 2007 after filing of the petition only to show that there cannot be said to be any personal & bonafide necessity of the respondent-plaintiff and what is being sought for amendment certainly goes to the root of the matter which requires adjudication and it is not the case of the respondent also that very property of which reference has been made by the petitioner for the purpose of seeking amendment in the written statement filed before the Tribunal was in their knowledge prior to 2007 CW 12822/08 [5] i.e. the date when written statement was filed by the original tenant of whom the petitioners are legal heirs in 2006. In such circumstances, the finding which has been recorded by the learned Tribunal in the order impugned is not legally sustainable and deserves to be set aside. Counsel for respondent submits that atleast for delay which has been caused only on account of fault committed by the petitioner, he is entitled for reasonable cost. The prayer appears to be reasonable. Consequently, writ petition stands allowed. Order dt.29th August, 2008 passed by Tribunal rejecting application submitted by the petitioner seeking amendment in their written statement stands allowed subject to payment of cost. If the petitioner deposits cost of Rs.2500/- with the Tribunal or submit receipt of amount of cost paid to the respondent within a period of one month, learned Tribunal is directed to proceed further after taking amendment as sought for on record in accordance with law. Since, it is a matter of 2006, it is expected to dispose of the same expeditiously. [AJAY RASTOGI], J. FRBOHRA12822CW08 4-5.doc