IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.7698/2007. Mathura Prasad (since deceased) hence through his LRs. Vs. Dwarka Prasad and ors. Date of Order:- 31 January 2008. HON’BLE MR.JUSTICE M.N. BHANDARI Shri Manish Sharma for the petitioners. Shri Sudesh Bansal for the respondents. **** By this writ petition, petitioner has challenged the order dated 21/8/2007 passed by the learned Civil Judge (Senior Division) Bandikui, Dausa. The petitioner defendant had moved an application seeking permission to lead additional evidence looking to the fact that subsequent to the filing of the suit by the plaintiff non-petitioner, certain events took place which are sufficient to show that the ground on which suit was filed for bonafide personal necessity of the property in dispute, no more survives. The application so moved by the petitioner defendant was contested by the plaintiff non- petitioner stating that it is only with a view to delay the matter that such an application filed when the matter is 2 SBCWP NO.7698/2007. pending for final disposal since long after hearing of the parties. It was further contended that the facts so mentioned in the application of the petitioner defendant were otherwise taken even earlier when defendant petitioner moved an application for amendment of his written statement however, the court vide its order dated 7/7/2006 rejected the said application and thus when necessary pleadings were not allowed to be taken on record by way of amendment in the written statement then, without there being any plea, evidence cannot be allowed to be led. It was further submitted that matter is pending for last 20 years and for all the years, the defendant petitioner is delaying the proceedings on one or the other ground. Considering the submissions of the parties, learned court below dismissed the application moved by the defendant-petitioner. Learned counsel for the petitioners submits that rejection of the application so moved by the defendant is not proper on the ground which has been mentioned by the court below in the impugned-order. It was submitted that merely some delay in submission of the application for leading additional evidence occurred, the same cannot be taken as a ground for rejection of the application after relying the judgment of the Hon’ble Apex Court in the case of Gaya Prasad Vs. Pradeep Srivastava : (2001) 2 SCC 604. 3 SBCWP NO.7698/2007. The facts of the aforesaid case are not applicable to the facts of this case. It was then submitted that subsequent events are material and thus, should be permitted to bring on record by way of additional evidence hence, it was prayed that the order impugned should be set-aside with acceptance of the prayer made by the defendant petitioner in his application before the court below. Rival contention of the learned counsel for the non-petitioner is that it is not only a fact noticed by the court below that despite of knowing about the subsequent events for almost three years back when the petitioner was having an opportunity to lead necessary evidence as they were given opportunity to lead their evidence till 6/1/2006 and the court finally closed the evidence of the defendants on his refusal to pay the cost of Rs.100/- which was imposed on 10/12/2005. It was further submitted that in view of the various judgments of the Hon’ble Apex Court, when pleadings were not allowed to be brought on record by way of amendment in the written-statement then evidence on on the facts which is not being pleaded, cannot be allowed. It was then submitted that the defendant petitioner had taken 10 years time to lead their evidence and the matter is still pending for last 20 years thus, there exist no justification to allow the additional evidence. 4 SBCWP NO.7698/2007. I have considered the rival submissions of the parties and gone through the order impugned. Few facts which are not in dispute and can be seen from pleading of the writ petition are that petitioners were knowing about the subsequent events almost three years back from the date of submission of application inasmuch as, in para (c) of the writ petition, it has been stated that even if petitioners were knowing about the subsequent events before close of their evidence then earlier order is not justified because if for bonafide advise the evidence could not be recorded and there is a delay in moving the application to lead evidence then it will not ipso facto considered to be a valid ground to decline to lead additional evidence. Looking to the aforesaid admission, it becomes clear that despite of knowing the subsequent events, prior to leading evidence if petitioners failed to lead evidence despite of availability of opportunity because their evidence was closed only on 6/1/2006 and the event as of year 2004. The application moved by the petitioners cannot be considered to be bonafide. It is borne out from the fact that earlier, the court below vide its order dated 7/7/2006 dismissed the application moved by the petitioners under Order 6 Rule 17 CPC for amendment in the written statement to bring those facts which otherwise petitioners want to 5 SBCWP NO.7698/2007. prove through the additional evidence. Once, plea pertaining to additional evidence does not exist or was not permitted for the reasons given in the order dated 7/7/2006 and the said order having become final, petitioners cannot be allowed to lead evidence without necessary pleadings. This view is supported by the judgment of the Hon’ble Apex Court in Ram Sarup Gupta (dead) by L.Rs. Vs. Bishun Narain Inter College and others reported in AIR 1987 SC 1242 wherein, it was held that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It was further held that no party should be permitted to travel beyond its pleading. In view of the judgment referred to above also, petitioners cannot be permitted to lead additional evidence thus, it is not necessary for this court to go into the issue which should be crucial issue for decision of the case filed for eviction on the ground of bonafide and personal necessity. With the discussion made above, I do not find any substance in the writ petition hence, same is dismissed with no order as to costs. (M.N. BHANDARI), J. anil