1 Om Prakash Vs. Devendra Kumar (S.B.C.WRIT PETITION NO. 3293/2010 ) Dated:- 05/05/2010 HON'BLE MR.JUSTICE SANGEET LODHA Mr. Sajjan Singh for the petitioner. 1. This writ petition is directed against the order dated 25.01.2010 passed by the Civil Judge (Junior Division), Udaipur City (North) Udaipur in Civil Suit No.33/98 whereby two applications preferred by the petitioner/defendant one under Order VI Rule 17 and another under Order XIV Rule 5 CPC stand rejected. 2. The respondent/plaintiff has filed a suit for eviction of the petitioner/defendant from the premises i.e. a Shop on the ground of default in payment of rent and subletting, which is being contested by the petitioner/defendant by filing a written statement thereto. 3. The petitioner/defendant preferred an application seeking leave to amend the written statement so as to incorporate the plea that no arrear of rent quantified at Rs. 23,500/- was outstanding and the respondent/plaintiff is not entitled to recover the same inasmuch as the arrear of rent claimed beyond the period of three years is barred by time. That apart, it was submitted that after decision of an appeal No.35/2002, in terms 2 of the oral compromise arrived at between the parties, a sum of Rs. 65,000/- was paid to the respondent/plaintiff and therefore, the ground of default in payment of rent stands waived. 4. The application seeking leave to amend the written statement as aforesaid has been dismissed by the trial court holding that the averments made in para 3A sought to be incorporated in the written statement regarding the arrear of rent could have been incorporated by the petitioner/defendant in the written statement initially and there is no subsequent event necessitating the amendment as prayed for. Regarding Para 3B sought to be incorporated in the written statement, the Court observed that the order passed in Appeal No. 35/02 referred to by the petitioner/defendant was passed on 29.08.2003 and therefore, without there being any explanation of the delay, the amendment sought for cannot be permitted after lapse of about seven years. 5. A perusal of the plaint reveals that the respondent/plaintiff has filed the suit for eviction and no prayer has been made regarding the arrears of rent. Moreover, it is to be noticed that in the suit filed in the year 1998, the written statement was filed by the petitioner/defendant in the year 2000 and nothing prevented him to incorporate such pleading in the written statement. At this stage, after a lapse of about ten years, the prayer made for incorporating the amendment as aforesaid which is not even 3 relevant to the controversy involved in the matter, has rightly been refused by the trial court. 6. Coming to the amendment sought for in the terms set out in Para 3B, it is pertinent to note that the amendment is sought for on the basis of an order dated 29.8.2003 passed in Appeal No. 35/02. If the petitioner/defendant intended to incorporate the facts regarding the alleged oral compromise, then nothing prevented him to make an appropriate application seeking amendment at the earliest. There is no satisfactory explanation on record for not introducing those pleadings at the appropriate stage. 7. Thus, on the facts and in the circumstances, in the considered opinion of this Court, the trial court has committed no jurisdictional error in rejecting the application preferred by the petitioner/defendant seeking leave to amend the written statement. 8. Coming to the application preferred under Order XIV Rule 5 CPC wherein the petitioner/defendant prayed for deletion of issue No.1, in view of the issue No.3A framed by the trial court on the request being made by the petitioner/defendant, it is to be noticed that issue No.1 relates to the respondent/plaintiff's entitlement to the decree of eviction on the ground of default in payment of rent, burden whereof lies on the respondent/plaintiff, whereas issue No.3A relates to determination of provisional rent 4 in absence of the payment of court fees regarding the arrears of rent and the protection to which the petitioner/defendant is entitled against the first default in payment of rent, burden whereof lies on petitioner/defendant. Apparently these two issues are independent issues and the question of deletion of the issue No.1 on account of framing of the issue No.3A simply does not arise. Obviously, the respondent/ plaintiff has to prove the default in payment of rent on the part of the petitioner/defendant so as to make him entitled for a decree of eviction on the said ground. To say the least, the application preferred by the petitioner /defendant for amendment of the issues was absolutely misconceived and the same has rightly been rejected by the trial court. 9. In view of the discussion above, this Court is of the considered opinion that the order impugned passed by the trial court does not suffer from any jurisdictional error warranting interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 10. In the result, the writ petition fails and it is hereby dismissed. (SANGEET LODHA),J. rp/-