IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.14 of 2009 Gopal Lal son of Shri Badri Lal VERSUS Mahesh Chand son of Shri Rameshwar Prasad Pareek Date of Order :::: March 11th 2010 Hon'ble Mr. Justice Dalip Singh Mr. Ramgopal Choudhary, Counsel for the Petitioner Mr. G.D. Parwal and Mr. Rahul Kumar, Counsel for the Respondent *** By the Court :
Heard learned counsel for the parties.
Matter has come up on the application bearing No.11073 submitted by the petitioner for grant of interim relief.
Since, the parties are duly represented and the submission on the application as well as on the main petition are identical, learned counsel for the parties submitted that the writ petition itself may be decided.
With the consent of both the parties the writ petition itself is being heard and decided.
The writ petition has been filed by the petitioner challenging the impugned order dated 09.07.2008 by which the application submitted under Order 6 Rule 17 C.P.C. by the defendant-tenant during the pendency of the appeal for amendment of the written-statement has been rejected.
The amendment, which has been sought to be incorporated has been given in Para No.5 of the application, wherein in Para No.7 of the written-statement the fact that a shop, which was owned by the wife of the respondent having fallen vacant after her death on 02.02.2008 and having become available for the purpose of the satisfaction of the bonafide-necessity of the son of the plaintiff- Arun Kumar, who has inherited the same is sought to be incorporated.
A reply to the said application has been filed, which is available as Annexure-3 on record, wherein it has come on record that the said shop became available to Smt. Munni Devi on 02.12.2007 after it was vacated and during her life time on 03.01.2008 Smt. Munni Devi gave the said shop to one Bhanu Kumar @ Suresh, who running the business in the said shop in the name and style of Shri Radha Govind Textile with effect from 03.01.2008 i.e. even prior to the death of Smt. Munni Devi on 02.02.2008. As such at the time of the alleged inheritance by Arun Kumar the said shop was not available to him for starting his business.
The learned trial Court has taken into account all these facts and has rejected the application submitted by the petitioner in his application under Order 6 Rule 17 C.P.C. for amendment of the written-statement during the pendency of the appeal before the learned First Appellate Court.
It would not be appropriate for this Court to go into the merits of the submissions, suffice it to say that the facts, which have come on record clearly establish that the suit shop did not became available after the death of Smt. Munni Devi as alleged by the petitioner to Arun Kumar by way of inheritance as Smt. Munni Devi died on 02.02.2008 and the shop was given by Smt. Munni Devi to her son Bhanu Kumar on 03.01.2008 from which date he is running business of textile in the name and style of Shri Radha Govind Textile in the said shop.
In the facts and circumstances, I find no jurisdictional error having been committed by the learned Lower Appellate Court.
The writ petition as well as the application bearing No.11073 for interim relief stand dismissed accordingly.
(Dalip Singh), J.
Ashok/