1 9 S.B. CIVIL WRIT PETITION NO.6916/2007. M/s. Om Prakash Girdhari Lal Vs. Spl. Judge, NDPS Cases, Sriganganagar & Ors. Date of Order :: 2nd April 2008. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. S.L. Jain, for the petitioner. Mr. C.S. Kotwani, for the respondents. ..... BY THE COURT: Heard learned counsel. The defendant-petitioner has preferred this writ petition against the order dated 10.10.2007 as passed by the learned Trial Court rejecting its application under Order VI Rule 17 of the Code of Civil Procedure (CPC) seeking leave to amend the written statement and further closing its evidence. Put in a nut-shell, the relevant facts and aspects are that the petitioner-defendant is facing a suit for eviction and recovery of arrears of rent as filed by its landlord late Shri Shiv Kumar. The original plaintiff Shri Shiv Kumar expired during the pendency of the suit and his wife, son and daughter have been substituted as plaintiffs in his place. The suit was originally filed seeking eviction on the ground of default in payment of rent and so also stating reasonable and bona fide 2 requirement of the original plaintiff Shri Shiv Kumar to establish his business. However, the substituted plaintiffs have stated the requirement of the wife of the original plaintiff to establish business in the suit premises for her having no other source of income. It appears that the defendant- petitioner has taken the plea in his written statement denying altogether the requirement of the plaintiffs as alleged. During the pendency of the suit and while the matter was set for defendant's evidence, the defendant-petitioner moved an application (Annex. 3) seeking leave to amend the written statement; and, while pointing out the plea as taken in the plaint, alleged that after the demise of the original plaintiff Shri Shiv Kumar, his heirs have been substituted as plaintiffs and they have taken the ground of requirement of the wife of the original plaintiff but the defendant has come to know that the only son of the deceased plaintiff has established his business at Jaipur and Smt. Shashi Devi whose requirement has been alleged by the plaintiffs has also shifted to Jaipur and was residing with her son and, therefore, the need as alleged has come to an end. The petitioner submitted that such facts have come into existence after filing of the suit and it was necessary to incorporate such facts in the pleadings and thus sought incorporation of the plea in the written statement relating to settlement of the plaintiff Smt. Shashi Devi at Jaipur with other 3 corollary pleas and contentions. The application seems to have been moved on the day the matter was posted for cross- examination of the defendant Sita Ram, DW-1. The learned Trial Court by its impugned order dated 10.10.2007 has proceeded to reject the aforesaid application under Order VI Rule 17 CPC on the consideration that for the defendant having altogether denied reasonable and bona fide requirement of the plaintiffs, there was no necessity to take the averments about the requirement coming to an end. The learned Trial Court has further proceeded to close down the evidence of the defendant for four opportunities having already been granted and costs having not been paid. Assailing the order aforesaid, learned counsel Mr. S.L. Jain for the petitioner has contended that the learned Trial Court has disallowed the prayer for amendment on irrelevant considerations and has failed to consider that subsequent events having a bearing on the questions involved in the matter ought to have been allowed to be incorporated by way of amendment of the written statement and merely for denying reasonable and bona fide requirement of the plaintiffs, the defendant does not stand precluded from pointing out that even if there was any such requirement, the same has come to an end because of the subsequent events. Learned counsel further submitted that the learned Trial Court has 4 acted wholly illegally in closing the evidence of the defendant without considering the overall circumstances of the case. Learned counsel Mr. C.S. Kotwani appearing for the contesting respondent has attempted to justify the order impugned and submitted that the application being vague and uncertain has rightly been rejected by the learned Trial Court and for sufficient opportunities having already been granted, the learned Trial Court has not committed any illegality in closing the evidence. Having given a thoughtful consideration to the rival submissions and having perused the material placed on record, this Court is unable to sustain the impugned order dated 10.10.2007 in so far it relates to rejection of the application for amendment and closing of the evidence of the defendant-petitioner. It is true that the defendant has denied any reasonable and bona fide requirement of the plaintiffs but merely for taking such plea, it cannot be said that the defendant cannot plead about any relevant subsequent event having a bearing on the professed requirement. The application for amendment as moved by the defendant-petitioner has not been replied on behalf of the plaintiffs and the learned Trial Court has proceeded to reject the same in a wholly cursory manner and on entirely irrelevant considerations. Of course, the 5 application for amendment is not specific on the point as to when the defendant-petitioner came to know about the alleged subsequent events but it has nevertheless been stated that the defendant has now come to know that for about 1½ years, the plaintiffs have permanently left Sriganganagar and are settled at Jaipur. In the overall circumstances of the case, the amendment as prayed for could have been allowed on reasonable terms of costs. So far closing of the defendant's evidence is concerned, it appears that cross-examination of DW-1 Sita Ram had been concluded only on 10.10.2007 and looking to the subject- matter of the suit, an opportunity to adduce further evidence could have been granted to the defendant. In any case, for the order proposed to be passed by this Court allowing the amendment as prayed for, as a necessary corollary, closing of the evidence on 10.10.2007 cannot be sustained. However, it is noticed that the defendant has not specifically stated the date of his knowledge of the subsequent events sought to be incorporated in the written statement and it is also noticed from the observations as made in the impugned order that some earlier costs had not been paid. In the circumstances of the case, it appears appropriate to allow the application for amendment and further an opportunity to the defendant to lead evidence on payment of costs quantified 6 at Rs.2,000/-. Further, in the circumstances of the case, it appears necessary to permit the plaintiffs to state replication in relation to the plea as being permitted by way of amendment and so also an opportunity to adduce rebuttal evidence in that regard, if so desired. Accordingly, this writ petition is allowed with the directions and orders thus: (a) the impugned order dated 10.10.2007 is set aside in so far it relates to disallowing the application for amendment and closing the evidence of the defendant; (b) the defendant-petitioner is permitted to incorporate the plea in the written statement as suggested in the application Annexure-3; (c) it shall be required of the petitioner to file amended written statement and to make payment of costs of Rs.2,000/- to the plaintiffs on or before 16.04.2008; (d) it shall be permissible for the plaintiffs to file replication in relation to the amended written statement, if so desired, on or before 30.04.2008; (e) the defendant-petitioner who has already been examined as DW-1 may file his additional affidavit in evidence only in relation to the plea permitted to be incorporated by way of amendment; and the defendant- petitioner may file affidavits of other witnesses sought to 7 be examined in evidence; however, all such affidavits should be filed on or before 07.05.2008; (f) the learned Trial Court shall thereafter fix a short date for cross-examination of the defendant's witnesses; and it shall be required of the defendant-petitioner to produce all the witnesses on the given date and the Trial Court shall may consider setting the hearing on day to day basis; (g) an opportunity, as noticed above, shall of course be extended to the plaintiffs to adduce rebuttal evidence in relation to the plea permitted by way of amendment, if so desired, within a week of closure of the evidence of the defendant. There shall be no further orders as to costs of this writ petition. (DINESH MAHESHWARI), J. Mohan/