S.B.C.W.P. No.9622/2011
Gajendra Mehta Vs. Kishore Kumar & Anr.
Order dt: 02/11/2011
1/4
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
ORDER
S. B. Civil Writ Petition No.9622/2011
Gajendra Mehta Vs. Kishore Kumar & Anr.
DATE OF ORDER ::: 02nd November 2011
PRESENT
HON’BLE DR. JUSTICE VINEET KOTHARI
Mr. Sandeep Shah, for the petitioner.
Mr. Rajesh Parihar, for the respondent No.1.
—
1. Heard learned counsel for the petitioner-defendant,
tenant and respondent No.1-plaintiff-lessor.
2. This writ petition is directed against the order dated
23.09.2011 whereby the learned trial court has rejected the
amendment application of the defendant-petitioner under Order 6
Rule 17 CPC in a suit for eviction by which the defendant-lessee
sought to amend his written statement at the stage of beginning of
defence evidence seeking to include the pleading relating to joint
ownership of the suit premises besides the lessor- Kishore Kumar, by
other family members viz. Bhanwar Lal and Amritlal.
3. Learned trial court has rejected the said application on
the ground of delay as according to proviso of Order 6 Rule 17 CPC,
which permits such amendment only before the trial begins, namely,
issues are framed in the suit. Learned counsel for the petitioner-
S.B.C.W.P. No.9622/2011
Gajendra Mehta Vs. Kishore Kumar & Anr.
Order dt: 02/11/2011
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defendant, Mr. Sandeep Shah, relying upon a decision of Full Bench
of Gujarat High Court in the case of Nanalal Girdharlal & Anr. Vs.
Gulamnabi Jamalbhai Motorwala & Ors. reported in AIR 1973
Gujarat 131 (V. 60 C. 19) (Para 11) submitted that if the amendment
is not allowed then the defendant lessee would be precluded from
showing that his landlord was not the exclusive owner of the leased
property but was only one of the co-owners; and that notices to quit
given by him is, therefore, not sufficient to determine the lis.
4. On the ground of delay in applying for amendment,
learned counsel for the petitioner submitted that the same deserves
to be condoned in view of decision of Hon’ble Supreme Court in the
case of Surender Kumar Sharma Vs. Makhan Singh reported in
(2009) 10 SCC 626 and in the case of Usha Balasaheb Swami &
Ors. Vs. Kiran Appaso Swami & Ors. Reported in (2007) 5 SCC
602.
5. On the other hand, Mr. Rajesh Parihar, learned counsel
appearing on behalf of plaintiff-respondent relying upon the decision
of Hon’ble Supreme in the case of FGP Ltd. Vs. Saleh Hooseini
Doctor & Anr. reported in 2010 (1) CCC 14 (SC) urged that question
of title is absolutely irrelevant and notwithstanding the fact that lessor-
Kishore Kumar was receiving the rent regularly from the defendant-
tenant; the plaintiff had also produced registered partition deed on
record with his plaint under which got exclusive right over the suit
premises, therefore, there was no question of challenging the notice
S.B.C.W.P. No.9622/2011
Gajendra Mehta Vs. Kishore Kumar & Anr.
Order dt: 02/11/2011
3/4
to quit on the ground now sought to be raised by seeking amendment
in the written statement. Therefore, not only on the ground of delay,
the amendment being wholly unnecessary and irrelevant was rightly
rejected by the learned trial court.
6. Having heard learned counsels for the parties and upon
perusal of the impugned order and reasons given therein, this Court
is satisfied that amendment sought by the defendant-tenant in his
written statement was neither necessary nor called for in the present
case. Admittedly, the issue relating to title is not relevant in eviction
matters at all either under the Rent Control Act or under Section 106
of the Transfer of Property Act. The notice to quit under Section 106
of T.P. Act given by the lessor- Kishore Kumar in the present case,
cannot be said to be invalid even if it is found from the registered
“Patta” produced on record by the plaintiff with the plaint, that original
“Patta” was originally issued in the name of three joint owners. Since,
the lease rent in question was admittedly received by the Kishore
Kumar, the contention of the defendant-tenant that notice was not
validly given, can be examined by the learned trial court, irrespective
of the pleadings in the form of amendment, as sought by the
defendant. Therefore, the question of delay in filing the amendment
application pales into insignificance and otherwise also, such
amendment is not relevant to the controversy involved in the present
case and, therefore, the learned trial court was justified in rejecting
the said amendment application.
S.B.C.W.P. No.9622/2011
Gajendra Mehta Vs. Kishore Kumar & Anr.
Order dt: 02/11/2011
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7. This Court in exercise of power conferred under Article
227 of the Constitution of India cannot interfere with all interlocutory
orders passed by the learned trial court; and even if some contention
of some significance is raised by the parties before the learned trial
court and decided against them, the same can always be raised
against the final judgment of the trial court before the appellate court
and Article 227 of the Constitution of India is not meant of correcting
every error or mistake, minor or major, in the trial, unless a serious
miscarriage of justice is seen by the Court under Article 227 of the
Constitution of India and this is well settled proposition of law, as
settled by Hon’ble Supreme Court and this Court in the catena of
judgments.
8. Accordingly, the present writ petition is found to be
devoid of merit and the same deserves to be dismissed and no
interference with the order impugned, under Article 227 is called for.
The writ petition is accordingly dismissed with no order as to costs.
(DR. VINEET KOTHARI), J.
DJ/-
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