Rajasthan High Court - Jaipur
Santosh Kumar vs Sundar Lal And Ors on 13 September, 2012
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur S.B.Civil Writ Petition No.13210 of 2012 Santosh Kumar-Petitioner vs Sunder Lal and Anr.-Respondents Date of Order :: 13.9.2012 Present HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr.JP Gupta for the petitioner. Mr.RK Gaur for the respondents. Order By the Court:
1. The petitioner-defendant has filed the present petition under Article 227 of the Constitution of India challenging the order dated 8th August,2012 passed by the Addl. District Judge (FT) No.2, Beawar (hereinafter referred as the trial court) in the Civil Suit No.45 of 2007, whereby the trial court has dismissed the application of the petitioner under Order VI Rule 17 of CPC seeking amendment in the written statement.
2. In the instant case, it appears that the original-plaintiff Sunder Lal son of Late Shri Kalu Ram had filed the suit as the Karta of Joint Hindu Family-Jethmal Kalu Ram Toshniwal against the present petitioner- defendant seeking eviction and for recovery of possession of the suit premises under the provisions contained in the Transfer of Property Act. During the pendency of the suit, the original plaintiff Sunder Lal expired on 10.12.2010, hence his legal representatives i.e. the present respondent Nos. 1 to 6/5 were substituted in his place.
3. The petitioner-defendant thereafter filed the application seeking amendment in the written statement for incorporating the subsequent event raising contention that none of legal representatives of the original plaintiff Sunder Lal was the Karta of HUF and therefore they are not entitled to prosecute further with the suit or to obtain the relief as prayed for in the suit. The said application was resisted by the respondent-plaintiff. The trial court vide the impugned order dated 8th August, 2012 has rejected the said application, against which the present petition has been filed by the petitioner-defendant.
4. It has been submitted by learned counsel Mr. JP Gupta for the petitioner that the proposed amendment was sought in view of the subsequent event which had taken place on the death of original plaintiff Sunder Lal, and the amendment was with regard to the legal issue as to whether the legal heirs substituted in place of original plaintiff were entitled to proceed further with the suit and obtain the relief as claimed. According to him, the suit was filed by Sunder Lal in his capacity as Karta and none of the legal representatives substituted in place of the original plaintiff being Karta, they could not prosecute further with the suit. However, learned counsel Mr. RK Gaur for respondents has vehemently submitted that the respondents have already been substituted as the legal representatives of original plaintiff deceased Sunder Lal though objected by the petitioner-defendant and the application for amendment in written statement was submitted by the petitioner-defendant only with a view to prolong the proceedings. He also submitted that the court having granted the application under Order Order XXII Rule 3 of CPC permitting the legal representatives of the deceased Sunder Lal to be substituted and the said order having not been challenged by the petitioner- defendant, the issue cannot be again raised in the written statement by filing the amendment application. He also submitted that the proposed amendment being not necessary for adjudicating the questions involved in the suit, the trial court has rightly rejected the same.
5. In the instant case, it is not disputed that after the death of original plaintiff Sunder lal, his legal representatives i.e the present respondents No. 1 to 6/5 have been substituted under Order XXII Rule 3 of CPC by the trial court as per the order dated 16.3.2012. It is also not disputed that the said order has not been challenged by the petitioner-defendant and the same has become final. Now, the petitioner-defendant has sought the amendment in the written statement by raising the contention that the legal representatives substituted in place of original plaintiff were not entitled to claim the relief prayed in the suit. Since the defendant is seeking the amendment in view of the event which had taken place after the filing of his written statement, such a contention was not available to him at the time of filing of written statement. The court though finds substance in the submission made by learned counsel for the respondents that the respondents have already been substituted as the legal representatives of the original plaintiff Sunder Lal, though objected by the petitioner, and that the application for amendment was given by the petitioner with a view to delay the proceedings, the contention raised in the proposed amendment having been raised in view of the subsequent event, the same deserves to be granted in the larger interest of justice.
6. In that view of the matter, the petition deserves to be allowed. However, it is clarified that the respondent shall be at liberty to file rejoinder to the amendment in the written statement of the petitioner-defendant.
7. For the reasons stated above, the order dated 8th August,2012 is set aside and the amendment sought by the petitioner-defendant in his application under Order VI Rule 17 of CPC is allowed. Petition stands allowed accordingly.
(BELA M. TRIVEDI) J.
om/P.7/13210 cwp 2012 13.9.2012 final.doc..doc All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Om Prakash PA