SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.3920/2009 Jeevan Ram versus Gokul Chand. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.B.M.Bhojak, for the petitioner. Mr.Moti Singh, for the respondent. DATE OF JUDGMENT : 29th April, 2009. JUDGMENT 1. This petition is directed against the order dtd.2.4.2009 whereby the learned trial Court rejected the application of the defendant under Order 6 Rule 17 C.P.C. read with Section 151 C.P.C. for amendment of the written statement filed by the defendant in an eviction suit filed against him. 2. The learned counsel for the petitioner relying upon the decision of this Court in the case of Gopal Singh v/s Chander Singh reported in 1998 DNJ (Raj.) 575, 2009(1) DNJ 394 – Navneet Kumar V/s Mahaveer Prasad and the decision of Hon'ble Supreme Court in the case of North Eastern Railway Administration, Gorakhpur V/s Bhagwan Das reported in (2008) 8 SCC 511 and submitted that on SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 2/6 the basis of document taken on record by the learned trial Court, the agreement under which the landlord has agreed to construct at the shop at the place and give the same to the defendant on the premium of Rs.150/- for 35 years, the amendment in the written statement in order to prove the contents of the said document was necessary and deserves to be allowed by the learned trial Court. He further submitted that on the basis of said agreement, the defendant has already filed a suit for specific performance and the same was pending in the same Court and the defendant has also prayed for consolidation of both the suits and both the prayers deserve to be granted. 3. The submissions made by the learned counsel for the petitioner are strongly opposed by the learned counsel for the respondent – plaintiff. 4. Having heard the learned counsel for the parties, this Court does not find any force in the present writ petition. Since admittedly the other suit filed by the present defendant – petitioner for specific performance on the basis of self-same agreement is pending in the Court which is to be tried in accordance with law. However, the amendment sought in the present written statement in the suit for eviction is likely to go contrary to the averments made in the written statement already filed by them. The learned Court also found that the neighbourhood of two sides in question appears to be different and SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 3/6 therefore, the agreement in question might pertain to different plot of land whereas the suit premises were different and therefore, at the stage of evidence, the learned trial Court thought it proper not to allow present amendment as sought by the defendant – petitioner. 5. The judgment relied upon by the learned counsel for the petitioner about the discretion of the Courts to allow the amendment do not have any application in the present case in as much as in the case of Gopal Singh V/s Chander Singh allowing the revision petition of the defendant, the Court found that allowing such amendment in the written statement is not likely to defeat the right of the plaintiff in any manner and therefore, the learned trial Court has not committed any jurisdictional error in allowing such amendment. Similarly in the case of Navneet Kumar V/s Mahaveer Prasad, the Court allowed the amendment of the plaint on the basis of documents already taken on record and the Court felt that without allowing the plaintiff to prove the contents thereof, there may be difficulty in knowing the case of the plaintiff even for the Court and therefore, the amendment was allowed. In the judgment relied upon by the learned counsel for the petitioner of Apex Court, it has been held that all the amendments under Order 6 Rule 17 C.P.C. ought to be allowed which satisfy the two conditions ; (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 4/6 6. On the principle of amendment enunciated by the Hon'ble Apex Court, this Court is satisfied that the learned trial Court has rightly applied these principles to reject the application for amendment field by the defendant. The learned trial Court was of the clear opinion that not only the said amendment sought by the defendant is likely to to change the entire character of the defence earlier set up by the defendant, but admittedly the earlier suit filed by the said defendant for specific performance is pending trial and therefore, the amendment in the written statement in the present case for eviction was not necessary where the question of title is not relevant. Therefore, this Court is satisfied that the learned trial Court has not committed any error in passing the impugned order. 7. The writ petition has, therefore, no force and the same is accordingly dismissed. 8. The learned counsel for the respondent brought to the notice of this Court that the same petitioner Jeevan Ram had approached this Court by way of SBCWP No.5391/2008 against the order dtd.23.7.2008 by the learned trial Court whereby the learned trial Court rejected the application of the defendant – petitioner seeking to postpone the evidence of the plaintiff merely on the ground that the defendant had filed an application in the Court that there were certain papers of the Court file which were missing from the Court file and therefore, the trial Court could not could not proceed. This Court SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 5/6 dismissed the said writ petition with cost on the basis of frivolous and flying allegations made by the defendant – petitioner even against the advocate and the trial Court itself. The operative portion of the said previous order passed by this Court on 6.8.2008 is reproduced hereunder: “having heard learned counsels and upon perusal of the impugned order, it appears that the defendant is a reticent kind of litigant who does not want the trial to proceed and by hook and crook wants to delay and defeat the fair trial in question. The kind of flying allegations made by the defendant before the trial court apparently shows that he is not interested in facing the trial but can go to the extent of levelling allegations against the Advocate concerned and even Presiding Officer. Be that as it may, the trial Court appears to have rightly held that irrespective of enquiry into the missing papers from the said file, the trial should proceed and this Court finds no illegality in the same. 7. The writ petition is thoroughly misconcieved. The same is dismissed with cost of Rs.1,000/- to be paid by the defendant to the plaintiff. Sd/- (DR. VINEET KOTHARI)J. SBCWP NO.3920/2009 - JEEVAN RAM V/S GOKUL CHAND :JUDGMENT DTD. 29.4.2009 6/6 9. The learned counsel for the respondent submitted that the cost directed to be paid by the defendant – petitioner of Rs.1000/- has not been deposited by the defendant – petitioner even by now. This Court takes a very strong exception to the attitude of the defendant, who is not only delaying the trial by one manner or other, but is also bold enough not to comply with the directions of this Court by not depositing the cost so far. In view of this, the learned trial Court is directed to proceed with the trial expeditiously and complete the trial within a period of two months from today. If the cost as directed by this Court is not deposited by the defendant – petitioner within a period of one week from today, his defence may be struck off in the suit and the trial Court may proceed accordingly. (Dr.VINEET KOTHARI)J. Item No.3 Ss/-