Kanhaiyalal And Ors vs Shiv Lal

This writ petition has been filed by the petitioners aggrieved against order dated 02.04.2019 passed by Senior Civil Judge, Bheem, District Rajsamand,

whereby, the application filed by the respondent-plaintiff under Order VI, Rule 17 CPC has been allowed.

The plaintiffs filed a suit for permanent injunction, inter alia, with the submissions that the shop in question was being used by plaintiffs, which was

taken on rent in the year 2001. It was alleged that the respondent was attempting to evict the petitioners without due process of law and for the said

purpose, they entered the shop on 26.02.2017 and took away the goods of the plaintiffs and started demolition in the shop, regarding which, FIR was

lodged, which is being investigated by the police. Based on the said submissions injunction was sought.

A written statement was filed, inter alia, claiming that the shop was not let out to the plaintiffs and there was consequently no question of evicting

them from the shop in question. In additional pleas it was, inter alia, indicated that the shop in question now does not exist.

During pendency of the suit, the plaintiffs filed application under Order VI, Rule 17 CPC seeking amendment in the plaint to indicate that after filing of

the suit the shop in question has been demolished by the defendant. Based on the said event amendments were sought.

The application was resisted by the petitioners, inter alia, on the ground that the application was belated. The fact of demolition was long disclosed and,

therefore, the application was liable to be dismissed.

The trial court after hearing the parties and noticing the conflicting stand taken by the defendant in the written statement pertaining to the status of the

shop in para 1 and other part of the written statement, came to the conclusion that as to whether demolition took place prior to filing of the suit or

during pendency would have to be adjudicated and that merely on account of delay the application cannot be rejected as the parties are yet to begin

their evidence and, consequently, allowed the application by imposing cost of Rs. 500/-.

It is submitted by learned counsel for the petitioners that the trial court was not justified in accepting the application, inasmuch as, the nature of the suit

would change and that the plea regarding non-existence of the shop had already been taken by the defendants on filing of the written statement and

there was no justification for the delay in filing the application and, therefore, the application should have been dismissed on this ground alone.

I have considered the submissions made by learned counsel for the petitioners and have perused the material available on record.

A bare look at the order passed by the trial court would reveal that the trial court has thoroughly dealt with all the issues raised and after scanning the

plaint has come to a categorical conclusion that the issue as to whether the demolition had taken place prior to filing of the suit or after the suit was

filed would have to be determined and, as such, the ground raised based on assumption that the shop stood demolished before filing of the suit cannot

be accepted.

Further, the aspect of delay has also been adjudicated by the trial court and it cannot be said that there is any perversity in the order passed by the trial

court so as to require interference by this Court under Article 227 of the Constitution of India.

Consequently, there is no substance in the writ petition, the same is, therefore, dismissed.