1 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT S.B. Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and Another. Date : 5.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.OP Mehta, for the petitioner. Mr.R Purohit, for the respondents. - - - - - REPORTABLE Heard learned counsel for the parties. The petitioner/defendant/tenant is aggrieved against the order of the appellate court dated 26.10.2008 whereby the appellate court dismissed the petitioner's application filed under Order 6 Rule 17 CPC seeking permission to amend the written statement. Brief facts of the case are that the plaintiffs/respondents filed a suit for eviction 2 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950') in the Court situated in Merta where the said Act was applicable. During pendency of this suit no.21/85 (28/91), a new Act – Rajasthan Rent Control Act, 2001 (for short 'the Act of 2001') was enacted and the said Act came into force with effect from 1.4.2003. In the Act of 2001, there is a provision for repeal of the Act of 1950 under Section 32 and by that provision, a liberty was given to the plaintiff to withdraw the suit within the stipulated period of time to file the suit under the Act of 2001 and it has been provided that in that situation, the plaintiff will be entitled to proceed with the suit under the provisions of the Act of 2001. Under Section 32 itself, it is provided that the suit which was filed under the Act of 1950 and has not been withdrawn under Section 32 for the purpose of filing by taking benefit under Section 32 of the Act of 2001, shall be governed by the Act of 1950. The plaintiffs/respondents after coming into force of the Act of 2001, submitted an application before the trial court in their suit no.21/85 3 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. (28/91) under Section 32 of the Act of 2001 and sought permission to withdraw the suit with liberty to file fresh suit under the Act of 2001. The said application dated 18.9.2003 (Annex.5) was opposed by the petitioner/ defendant and during arguments, the counsel for the plaintiffs submitted that the plaintiffs did not want to press their prayer so far as it relates to grant of liberty to file fresh suit and, therefore, the trial court vide order dated 29.9.2003 (Annex.7) dismissed the suit of the plaintiffs as withdrawn simplicitor under Order 23 Rule 1 CPC. The plaintiffs thereafter filed present suit in the trial court wherein a specific plea was taken by the defendant/petitioner that the subsequent suit filed by the plaintiffs is not maintainable in view of Order 23 Rule 1(4) CPC. On the basis of this plea, the trial court framed issue no.2 in the subsequently filed suit. Ultimately after trial, the trial court decreed the suit of the plaintiffs for eviction of the petitioner vide judgment and decree dated 19.5.2008. It appears that there were some arguments advanced on the question of applicability of the Act of 1950 and the Act of 4 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. 2001 which have been dealt with by the trial court in paras no.11 and 13 of the said judgment which is under challenge before the first appellate court. Before the first appellate court, the petitioner submitted an application under Order 6 Rule 17 CPC and stated therein that the plaintiffs withdrew earlier suit after coming into force of the Act of 2001 and they could have filed the suit under the Act of 2001 within a period of 180 days which expired and the plaintiffs filed the application for withdrawal of the suit after 206 days and that application was also got dismissed by the plaintiffs for the prayer for withdrawal of the suit with liberty to file fresh suit under the Act of 2001. The defendant in the application submitted that the plaintiffs filed the suit against the provision of law i.e. without obtaining leave of the Court and learned counsel for the petitioner also submitted that the Act of 2001 has no application to Merta City because yet the Act of 2001 has not been made applicable to the area of Merta City where the property is situated and the Court of Merta has jurisdiction over the subject 5 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. matter. In view of the above reason also, the plaintiffs' suit is not maintainable. The application was opposed by the plaintiffs upon which the first appellate court observed that the present suit was filed in the Court on 3.11.2003 after serving a notice under Section 106 of the Transfer of Property Act and, therefore, the amendment sought by the defendant appears to be not necessary. Learned counsel for the petitioner submitted that in para no.9 of the impugned order dated 22.10.2008, the first appellate court observed that the plaintiffs filed new suit because of the fact that the Act of 1950 became inapplicable in the area and thereby the first appellate court decided the legal plea against the plaintiff. According to learned counsel for the petitioner, the plaintiffs' suit is not maintainable in view of the Order 23 Rule 1 (4) CPC as the plaintiffs withdrew the first suit and that suit was withdrawn without seeking permission to file fresh suit. Learned counsel for the petitioner also submitted that since the Act of 2001 has not been made applicable to the Merta City, therefore also, the plaintiffs' suit is not maintainable. 6 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. Learned counsel for the respondents vehemently submitted that the application has been filed after inordinate delay and in view of the amended provision of the CPC for Order 6 Rule 17 CPC and in the light of the judgment of the Hon'ble Apex court delivered in the case of Ajendraprasadji N. Pande & Anr. vs. Swami Keshavprakeshdasji N. & Ors. reported in AIR 2007 SC 806 and the judgment of this Court in the case of Shakuntala vs. M/s. Davendra Kumar Mool Chand reported in 2003(3) CCC 167 (Rajasthan), the first appellate court was right in rejecting the application of the petitioner seeking amendment of the written statement after such an inordinate delay which was filed not only after commencement of the trial but filed after decision of the suit. It is also submitted that the petitioner even did not plead a single word about his bonafides in moving his application after delay and did not gave any reason for not filing the amendment application on earlier occasion and during trial. According to learned counsel for the respondents, the petitioner was well aware about 7 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. his rights and could have raised this plea in the written statement itself but that has not been not only not raised but the petitioner did not gave any reason for not taking the plea in the trial court before start of trial, during trial, till the suit was decided by the trial court. It is also submitted that this Court in the case of Chand Ratan Daga vs. Additional District Judge No.8, Jaipur City, Jaipur & Anr. reported in 2008 (2) DNJ 1055 refused to allow the amendment sought on the ground of subsequent events and the same was the view taken by this Court in the case of Rameshwar Lal vs. Nijamuddin & Anr. reported in 2008(2) DNJ 856 wherein it has been observed that in case, the parties will be permitted to amend the suit on the basis of subsequent event during long period of trial and during period of appeal, then that will be endless process. Relying upon the judgment of the Hon'ble Supreme Court in the case of Vidyabai & Ors. vs. Padmalatha & Anr. reported in 2008 DNJ (SC) 1087, learned counsel for the respondents submitted that the main provision of Order 6 Rule 17 CPC is mandatory and the amendment cannot be allowed 8 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. after commencing of trial unless conditions mentioned in Order 6 Rule 17 CPC are complied. Learned counsel for the respondents also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of N.R. Narayan Swamy vs. B. Francis Jagan reported in 2001(2) RCJ 241 (SC)wherein when first suit was withdrawn and second suit was filed, then the Hon'ble Supreme Court held that the suit filed on the basis of personal necessity of the plaintiff is a recurring cause of action and second suit is maintainable. Learned counsel for the plaintiffs/respondents also vehemently submitted that on merits also, the petitioner has no case because of the reason that this Court in the judgment delivered in the case of Rampal vs. All Brahmin Swarnkar Panchayat & Ors. reported in 2007(3) DNJ 1363 held that the Act of 2001 is not applicable to Merta City and as per Section 32 of the Act of 2001, the Act of 1950 has no application and, therefore, the plaintiffs' suit is governed only by the provisions of Transfer of Property Act. I considered the submissions of learned 9 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. counsel for the parties and perused the relevant documents placed on record which includes copy of plaint of the first suit, copy of plaint of second suit, copy of judgment which was impugned before the first appellate court, the application under Order 6 Rule 17 CPC and the impugned order. Though much has been argued by both the counsels but crucial issue is that whether the court below is under obligation to look into the law and is bound to decide which law is applicable to the case and governs the party ? and whether it is dependent upon the pleas taken by only parties ? and whether by consent of parties, the jurisdiction can be conferred upon a Court or by consent of two parties, whether one Act which is not applicable can be made applicable ? and whether with the consent of the parties, the Act which is applicable, the Court can say that the Act is not applicable because the parties say so ? All above questions need no detail reasons for holding that the Court is under obligation to see the law which is applicable for the case irrespective of the fact that such plea has been raised by the party not in written statement and 10 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. has been raised in arguments. By consent of the parties, the jurisdiction cannot be conferred upon the Court which has no jurisdiction nor by consent of the parties, the Court's jurisdiction can be taken away. It is also settled law that the plea of estopple has no application against the law. In the case in hand, the parties were and are at variance on issue whether the Act of 2001 will apply or whether the Act of 1950 will apply or whether the plaintiffs' suit is governed by only the provisions of the Transfer of Property Act and whether both the Acts, the Act of 1950 and Act of 2001 are not applicable ? The parties, if have not specifically pleaded this legal objection, even then the parties can certainly argue out the legal argument to the Court in support of their oral plea of applicability of the Act to the case and the Court also is required to consider that objection. It is the question relating to applicability of law and the parties are supposed to assist the Court on this issue irrespective of their pleadings. It is admitted case that the suit has been filed by the plaintiffs against the defendant claiming themselves to be landlords and the 11 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. defendant admitted himself to be tenant in the premises. Which law will govern the parties ; whether the Act of 1950, or the Act of 2001, or the Transfer of Property Act, and both the Acts i.e. Act of 1950 and Act of 2001 are not applicable is the basic question for exercise of jurisdiction by the court. In fact, so far as the applicability of these Acts are concerned, the amendment in the written statement may not have been needed because of the reason that, that could have been raised and could have been decided by the Court even at the appellate stage without there being any specific pleading. As stated above, there cannot be estopple against the law, then the defendant could not have been denied his right to raise legal plea and that too, with respect to the applicability of the Act for the suit filed by the plaintiffs. It was the duty of the Court to look into the relevant provisions of law before passing the decree and by allowing the parties to address on this point, the Court is benefitted because the Court will decide the suit in accordance with law with the assistance of the parties and denying that, may result into grave injustice because of applying wrong law which 12 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. cannot benefit the parties. In view of the above reason, the first appellate court should not have observed in cursory manner with respect to the contentious issue about point of law while deciding the application of the party filed under Order 6 Rule 17 CPC and should have allowed the defendant to revise the argument during final arguments on appeal. It has been observed because of the reason that the first appellate court's order in fact neither decides this way nor that way and it is not clear whether the first appellate court by the impugned order held that the Act of 2001 is applicable to the Merta City because the first appellate court observed that the plaintiff withdrew his earlier suit under the provision of the Act of 1950 because of the fact that the said Act is not applicable to the Merta City. It is further relevant to mention here that even the counsel for the respondent has cited and rightly cited the judgment of this Court delivered in the case of Rampal (supra) wherein it has been held that the Act of 2001 is not applicable to the Merta City. In that situation, the observation of the first appellate court that the plaintiffs 13 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. withdrew the suit because of the fact that the Act of 1950 is not in force in Merta City is wrong in view of the judgment of this Court delivered in the case of Rampal (supra). So far as the other issue is concerned, whether the second suit is maintainable, for that, the plea has been taken in the written statement and the issue has been framed by the trial court and the decision has been given by the trial court which is under challenge before the first appellate court. In view of the above reason, there was no necessity for grant of any amendment in the written statement by the first appellate court. In view of the above reasons, it is held that the petitioner is entitled to advance his arguments about applicability of the Act governing the parties and the property and the respondents/ plaintiffs are entitled to assist the Court and advance their arguments with the help of the provisions of law to show that the suit is maintainable and the trial court rightly decreed the suit. This Court while exercising the writ jurisdiction would not like to usurp the power of 14 SB Civil Writ Petition No.8971/2008 Kishan Raj. vs. Choth Mal and another. the first appellate court and decide the question of law which is pending before the first appellate court nor this Court would like to decide the issue of law about applicability of the provisions of the Transfer of Property Act or the Act of 1950. With the aforesaid observations, this writ petition is disposed of. The first appellate court is directed to decide the appeal expeditiously. (PRAKASH TATIA), J. S.Phophaliya