Rajasthan High Court - Jodhpur
Balwant Singh vs Sarla Devi & Anr on 12 January, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 13177 / 2016
PETITIONER
Balwant Singh S/o Shri Pabudan, Age 73 years, by caste
Rajpurohit, resident of Shri Bikaner Sweet Home, Fad Bazar, Near
Tajiyo Ki Chowki, in front of Shankar Market, Bikaner.
Versus
RESPONDENTS
1. Sarla Devi W/o Shri Durga Prasad, by caste Khatri, resident
of near Satyanarayan Temple, Fad Bazar, Bikaner.
2. The Appellate Rent Tribunal, Bikaner.
_____________________________________________________
For Petitioner(s) : Mr. Govind Suthar
For Respondent(s) : Mr. Narendra Thanvi
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 12/01/2017 The writ petition was decided by this Court on 5.12.2016. The matter has now been listed on the office report for correction in the number of writ petition mentioned in the header of the order at pages no. 2, 3 and 4.
From a perusal of the order, it is evident that by inadvertent typographical error the number of writ petition has been wrongly mentioned in the header of the order dated 5.12.2016 as CW- 12853/2016 instead of CW-13177/2016.
Accordingly, in the header at pages no. 2, 3 and 4 of the order passed by this Court dated 5.12.2016 number of writ petition shall be read as CW-13177/2016 instead of CW- 12853/2016.
The order dated 05.12.2016 with corrected header shall now read as under:-
(2 of 5) [CW-13177/2016] "IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.CIVIL WRIT NO. 13177 / 2016 PETITIONER Balwant Singh S/o Shri Pabudan, Age 73 years, by caste Rajpurohit, resident of Shri Bikaner Sweet Home, Fad Bazar, Near Tajiyo Ki Chowki, in front of Shankar Market, Bikaner.
Versus RESPONDENTS
1. Sarla Devi W/o Shri Durga Prasad, by caste Khatri, resident of near Satyanarayan Temple, Fad Bazar, Bikaner.
2. The Appellate Rent Tribunal, Bikaner.
_________________________________________ For Petitioner : Mr. Manoj Bhandari. For Respondents : Mr. Narendra Thanvi. __________________________________________ HON'BLE MR. JUSTICE SANDEEP MEHTA Order 05/12/2016 By way of this writ petition, the petitioner Balwant Singh has approached this Court for assailing the order dated 23.08.2016 passed by the learned Appellate Rent Tribunal, Bikaner in Appeal No.90/2012 whereby, the application preferred by the petitioner under Order 6 Rule 17, Order 7 Rule 7 read with Section 151 of the CPC and Section 21 of the Rent Control Act was rejected.
The respondent landlord filed the Rent Control Application against the petitioner tenant before the Rent Tribunal, Bikaner which came to be allowed by (3 of 5) [CW-13177/2016] [CW-13177/2016] judgment dated 04.08.2012 and the petitioner was directed to vacate the premises in question. The petitioner filed an appeal against the said judgment which came to be registered as Appeal No.90/2012. During pendency of the said appeal, an application was preferred by the petitioner as mentioned above for taking certain subsequent developments on record. The basic thrust of the petitioner's application was that the respondent was having numerous shops below her residential premises at Phad Bazar, Bikaner and since the shops are located inside a pole, the petitioner has no access to such location and therefore, the Court should appoint a Commissioner to make a site inspection of these premises and to allow the petitioner to amend his written statement in light of the Commissioner's report. The facts mentioned in the application were disputed by the respondent Sarla Devi. The appellate court rejected the application filed by the petitioner by the impugned order whereby the instant writ petition has been preferred.
I have heard and considered the arguments advanced by Shri Manoj Bhandari, learned counsel for the petitioner and Shri Narendra Thanvi, learned counsel for the respondent and have gone through the impugned order.
(4 of 5) [CW-13177/2016] [CW-13177/2016] On going through the impugned order, it is evident that the facts which the petitioner attempted to bring on record during the appeal proceedings were already in his knowledge. In his own affidavit filed before the trial court, the petitioner clearly pleaded that the respondent was having four vacant shops in the Katla, Phad Bazar. Even in the application preferred by the appellate court, the petitioner did not make even a semblance of averment that he was not aware of these facts during the proceedings before Rent Tribunal.
Law is well settled that amendment can only be admitted regarding facts which are or could not have been known to the party despite exercising due diligence. In the case at hand, as noted above, the petitioner himself in his pleading before the Tribunal, admitted knowledge of the facts which he attempted to bring on record during the pendency of the appeal through the application under Order 6 Rule 17, Order 7 Rule 7 read with Section 151 of the CPC and Section 21 of the Rent Control Act. Thus, I am of the firm opinion that the learned appellate court was perfectly justified in rejecting the application submitted by the petitioner as the same was nothing but an endeavour to delay the proceedings. The impugned order ex-facie suffers from no illegality, perversity or error apparent (5 of 5) [CW-13177/2016] [CW-13177/2016] on the face of the record so as to require interference in the exercise of the supervisory writ jurisdiction of this Court.
As a consequence of the above discussion, the writ petition as well as stay application are hereby rejected as being devoid of merit.
No order as to costs.".
(SANDEEP MEHTA)J. /tikam/