SABIR KHAN Vs. CHANDRASHEKHAR BANDIL

JUDGEMENT

(1.) In this writ petition preferred under Article 227 of the Constitution of India, the petitioner has challenged the order dtd. 14/9/2023 passed in Civil Suit No.14-A/2012 by learned Additional Judge of First Civil Judge, Senior Division, Gwalior whereby an application filed by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure [for brevity 'the CPC'] seeking amendment has been rejected.

(2.) In brief, the facts of the case are that the respondent filed a civil suit for eviction and for recovery of arrears of rent. It was submitted by the plaintiff that a commercial cum residential building situated at Station Road, Morena was received in a family partition by father of plaintiff No. 1 namely Shri Prakash Narayan. Out of the said property, a portion in which defendant is a tenant was transferred by Late Shri Prakash Narayan in favor of plaintiff No. 2 (wife of plaintiff No. 1) through a registered sale-deed. The defendant was already a tenant when the shop was purchased by plaintiff No. 2. The plaintiff alleged that the defendant has not paid the rent and has further alleged that he has dismantled the common wall of adjoining shop and has added that shop with the rented shop without the permission of plaintiff.

(3.) The defendant filed written statement to the plaint and denied the allegation made in the plaint. The defendant specifically stated that he has paid the entire rent and denied the allegation that he has dismantled the wall of adjoining shop owned by the plaintiff. He further stated that on 2/5/1988, the defendant took the adjoining shop of disputed shop on rent from Prakash Chandra and later on, in February 1995, he took the disputed shop on rent and the common wall was dismantled by the father of plaintiff No. 1. Both the shops were of the ownership of the joint Hindu family of Prakash Narayan Bandil who is survived by his two sons namely Chandrashekhar and Shyam Bihari and the said wall was removed in presence of all three. On 6/9/2023, the defendant moved an application for amendment in the written statement on the ground that wife and sons of Shyambihari Bandil (brother of plaintiff no. 1) had filed a civil suit for eviction in which he had put an allegation that the defendant without permission had removed the common wall and had added the adjacent shop in the present shop. The said suit was dismissed vide judgment and decree dtd. 8/5/2017 and the issue framed in regard of removal of the wall was answered in negative by the trial court. The trial court vide impugned order dtd. 14/9/2023 has dismissed the application filed by the petitioner. Hence, the present petition has been filed.