Rajasthan High Court - Jodhpur
Legal Representative Of Late Smt Jamna ... vs The Hindu Undivided Family on 19 November, 2019
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17289/2019 Legal Representative Of Late Smt Jamna Shrimali, Wife Of Late Shri Satya Narayan Ji Shrimali:-
Ram Dutt Dave S/o Late Shri Durga Dutt Dave by caste Dave (Shrimali), aged about 76 years, resident of Chandpole, Brahampuri Bhagipole, Jodhpur.
----Petitioner Versus
1. The Hindu Undivided Family, Firm Shiv Dutt, Ram Dutt, Through Karta Khandan Shri Dwarka Dutt S/o Shri Vishnu Dutt By Caste Shrimali Resident Of Mohalla Brahampuri Nagore (Raj)
2. LRs Of Vishnu Dutt, S/o Shri Ram Dutt 2/1 Dwarka Dutt S/o Late Shri Vishnu Dutt, b/c Shrimali, R/o Brahampuri, Nagore.
2/2 Prabhu Dutt S/o Late Shri Vishnu Dutt, B/c Shrimali, R/o Jodhpur.
2/3 Vinod Kumar S/o Late Shri Vishnu Dutt, b/c Shrimali, R/o Brahamuri, Nagore.
2/4 Smt. Madhubala W/o Sunil, D/o Late Shri Vishnu Dutt, b/c Shrimali, R/o Chandpole Chowka, Jodhpur. 2/5 Smt. Santosh W/o Sunil Trivedi, D/o Late Shri Vishnu Dutt, b/c Shrimali, R/o P.R.-85, Government Quarter, Jodhpur Road, Pali.
3. LRs Of Smt Radha Devi, W/o Shri Shriram Shastri 3/1 Shri Suresh Chandra Dave S/o Late Shri Shriram Shastri, resident of Mohalla Kesarganj, Ajmer.
3/2 Shri Mahesh Chandra Dave S/o Late Shri Shriram Shastri, resident of Mohalla Kesarganj, Ajmer.
3/3 Shri Abhishek S/o Shri Chandra Shekhar Dave, R/o Ajmer, at present resident of 17/1, Second Main Road, Second A Cross Anjappa Layanat Adugodi, Bengalor-560030. 3/4 Smt. Aarti D/o late Shri Chandra Shekhar Dave, W/o Shri Kamlesh Ji Shrimali, respondent/o Ajmet, at present, r/o Pinky Fashion No.7 C.H.B.S. Layout, Near Water Tank, Vijay Nagar, Bengalor.
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(2 of 4) [CW-17289/2019] 3/5 Smt. Anushree D/o Late Shri Chandra Shekhar Dave, W/o
Shri Siddharth Ji Shrimali, r/o Ajmer, at present r/o 17/1, Second Main Road, Second-A Cross, Anjappa Layanat Adugodi, Behgalore-560030.
3/6 Smt. Laxmi Devi D/o Late Shri Shriram Shastri W/o Late Shri Rav Shaker, r/o V-364/2, Malviya Nagar, Jaipur. 3/7 Smt. Vijaya Devi D/o late Shri Shriram Shastri, W/o Shri Ashok Ji Trivedi, r/o 110, Amrit Nagar, Behind Shalimar Township, Indore (M.P.).
----Respondents
For Petitioner(s) : Mr. M.K. Trivedi
JUSTICE DINESH MEHTA
Order
19/11/2019
The present writ petition is directed against the order dated 22.10.2019, whereby petitioner's application under Order XIV Rule 5 of the Code of Civil Procedure, seeking amendment of the issues, has been rejected.
The suit in question was filed by the petitioner-plaintiff seeking eviction of the respondents from the property way back in the year 1999, which is proceeding at its own pace before the Trial Court.
Issues were framed on 18.12.2018, whereafter same were amended by the Trial Court, vide its order dated 02.08.2019, pursuant to petitioner's own request.
Subsequent thereto, the petitioner realized that one issue is also required to be framed and thus, moved an application dated 30.08.2019, seeking amendment in the issues framed. The following additional issue was prayed to be framed:- (Downloaded on 20/11/2019 at 08:46:36 PM)
(3 of 4) [CW-17289/2019] "vk;k oknh] izfroknh ls p<k fdjk;k :i;s 1260@& izkIr djus dk vf/kdkjh gS?" &&&&oknh When the said application came up for consideration before the Trial Court, it rejected the same vide its order impugned, inter alia observing that the petitioner had not requested to frame the above issue, when he had filed earlier application seeking amendment of the issues.
Mr. Trivedi, learned counsel for the petitioner contended that the reasons given by the Court below, while rejecting petitioner's application, are not relevant and germane. He submitted that the issue sought to be framed by the petitioner is/was very necessary for deciding petitioner's right of getting arrears of rent to the tune of Rs.1260/-. In absence of such issue, if the suit filed by the petitioner is decreed, he will be deprived of the arrears of rent amounting to Rs.1260/-.
Heard learned counsel for the petitioner. This Court agrees with the proposition putforth by the learned counsel for the petitioner that the reason given by the Court below that on an earlier occasion the petitioner had not prayed/suggested to frame this issue, cannot be a reason to reject the application.
Be that as it may, even if petitioner's contention is accepted and issue is framed, the petitioner would be entitled to a sum of Rs.1260/-, apart from the decree of eviction in case his suit is decreed.
If this Court has to allow petitioner's writ petition, notices will have to be issued and the other parties will have to be (Downloaded on 20/11/2019 at 08:46:36 PM) (4 of 4) [CW-17289/2019] heard. The petitioner's suit, which is pending since 1999, will be delayed.
In this view of the matter, looking to the meager amount, i.e. Rs.1260/- involved and that framing of the issue as prayed will not at all affect petitioner's substantive right of getting decree of eviction, this Court is not inclined to exercise discretionary supervisory jurisdiction under Article 227 of the Constitution of India, being guided by the principles laid down by Hon'ble the Superme Court in the case of Shalini Shyam Shetty & Ors. Rajendra Shankar Patil [(2010) 8 SCC 329] and Surya Dev Rai Vs. Ram Chander Rai & Ors. [(2003) 6 SCC 675].
The writ petition, therefore, fails.
The stay application also stands dismissed.
(DINESH MEHTA),J 224-skm/-
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