DEVENDRA KUMAR Vs. DISTRICT JUDGE KANPUR NAGAR

JUDGEMENT

(1.) Impugned herein is the order dated 24-8-1996 passed by Judge Small Cause Court-II, Kanpur Nagar. By order dated 24-8-1996 the learned Judge Small Cause Court rejected application No. 153-C filed by the petitioner-Devendra Kumar under Order 30 Rule 8 of the Code of Civil Procedure at the final hearing stage after two witnesses of the plaintiff respondent had already been examined holding, with reference to the averments made in the written statement filed on behalf of the petitioner and co-defendant Yogendra Kumar Mishra, that the defendant-petitioner was a partner in the firm-Kumar Medical Stores, Ramaipur Post Ramaipur, district Kanpur Nagar. It was also held that the application was filed with a view to protracting the disposal of the suit. Revision preferred against the said order came to be dismissed vide order dated 17-2-1997 holding that the application under Order 30 Rule 8 of the Code of Civil Procedure was not maintainable since it was not moved before the date of final hearing and also that there was no jurisdictional error in the impugned order. Aggrieved the instant writ petition has been filed for quashing of the aforestated orders.

(2.) It is not disputed that the suit was filed for ejectment of the defendants from the shop situated in Shakuntala Market, Ramaipur, District Kanpur Nagar and for recovery of Rs. 5,260.00 as arrears of rent from 1-3-1985 to 2-2-1988. According to the plaint allegation the shop in question was let out on a monthly rent of Rs. 150.00 to Kumar Medical Stores through Shailendra Kumar Mishra, Devendra Kumar Mishra and Yogendra Kumar Mishra (defendants No. 2, 3 and 4) were the partners of Kumar Medical Stores liable to pay rent jointly as well as severally. Summons were issued to the defendants. It appears that written statement was filed jointly by Devendra Kumar and Yogendra Kumar (defendants No. 3 and 4). In paragraph 2 of the said written statement it was stated that the shop was opened by Indra Sen Mishra (the father of the petitioners) jointly with the petitioners as well as defendant No. 2 out of the joint family funds. Appearance of the petitioner in response to the summons issued to them was, however, without any protest and the application under Order 30 Rule 3 CPC, as stated herein above, was moved at the final hearing stage after the evidence of plaintiff's witnesses was recorded in the case.

(3.) Learned counsel for the petitioners urged that the Courts below have misconstrued and mis-interpreted the provisions contained in Order 30 Rule 8 CPC and erred in rejecting the application moved on behalf of the petitioner-Devendra Kumar Mishra. The Respondent's counsel refuted the submissions made by the learned counsel for the petitioner and urged that the application filed on behalfof the petitioner Devendra Kumar Mishra under Order 30 Rule 8 CPC was rightly rejected by the Courts below and no interference was warranted by this Court under Article 226/227 of the Constitution.