NARESH SHARMA Vs. SHIV RAM SHARMA

JUDGEMENT

(1.) These petitions arise from an order pronounced in CMP No. 29-6 of 2015, comprising an application constituted by the defendant, before the learned trial Court, under the provisions of Order 6 Rule 17 CPC and from an order pronounced in CMA No. 30-6 of 2015, comprising an application constituted before the learned trial Court under the provisions of Order 8 Rule 6A CPC. Though both the applications aforesaid stood dismissed by separate order(s) pronounced thereupon by the learned trial Court, yet when facts besides attendant material are common to both thereupon the validity of the orders recorded upon both can stand adjudicated upon, under a common verdict.

(2.) The impugned order recorded by the learned Civil Judge (Sr. Division), Theog, Himachal Pradesh upon CMA No. 29-6 of 2015, application whereof, comprises an application constituted before the learned trial Court by the defendant by his invoking the provisions of Order 6 Rule 17 read with Section 151 CPC whereupon he concerted to with the leave of the Court add apposite pleadings in his written statement, for succoring his propagation qua his counter claim embodied in CMA No.30-6 of 2015. Before proceeding to dwell upon the efficacy of the pronouncements impugned hereat, it is imperative to allude to the factum of the suit constituted by the plaintiff before the learned trial Court echoing therein a relief qua a decree of damages, in a sum of Rs. 5,53,312/- comprising both the arrears of rent alongwith interest also the use and occupation charges qua the demised premises, hence standing pronounced upon the defendant. Qua the demised premises, a binding conclusive decree of eviction, of the defendant therefrom, arising from the plaintiff petitioner therein successfully establishing in his apposite rent petition constituted before the learned Rent Controller qua the defendant/petitioner herein falling into arrears of rent vis.a.vis the demised premises stood hence pronounced by the learned Rent Controller. The decree of eviction of the aggrieved defendant/petitioner herein from the demised premise, has come to be satisfactorily executed, comprised in the aggrieved defendant handing over vacant possession of the demised premises, to the plaintiff. The aggrieved defendant petitioner herein during the course of the apposite petition for his eviction from the demised premises, eviction whereof stood anchored upon his falling into arrears of rent, omitted to make any espousal therein qua the amount of arrears of rent claimed from him qua the demised premises, arrears whereof he evidently failed to liquidate qua the landlord, being ordered to be adjusted from the damages encumbered upon him arising from his standing constrained to sell machinery worth Rs.4,34,759/-, sale whereof stood engendered by the plaintiff reneging from his promises, whereas the aforesaid stage comprised the apposite stage for resisting the petition for his eviction from the demised premises anchored upon the statutory ground(s) of his falling into arrears of rent, concomitantly his omission aforesaid to on the aforesaid anchorage hence resist his eviction from the demised premises on the ground of his falling into arrears of rent, thereupon visibly constitutes estoppel against the aggrieved defendant, to with utmost procrastination subsequent to his instituting a written statement to the suit of the plaintiff, hence belatedly seek through the applications constituted before the learned trial Court, its leave for incorporation in the apposite written statement qua apposite amendments, holding communications/pleadings therein qua thereupon his rearing a counter claim against the amounts claimed in the suit instituted by the plaintiff, amounts whereof comprised the arrears of rent, for thereupon his non-suiting the plaintiff, conspicuously when the decree of his eviction from the demised premises stands satisfactorily executed whereupon also he stands forestalled to rear qua the plaintiff any counter claim qua the amounts aforesaid qua the plaintiff. Moreover, no issue on the aforesaid factum stood struck by the learned trial Court. Dehors the aforesaid non-availment earlier by the aggrieved defendant of his remedy to seek adjustment of amount(s) on anchorage aforestated vis.a.vis the quantum of arrears of rent claimed against him by the plaintiff qua the demised premises, he could well have at the earliest also instituted a separate suit holding therewithin the aforesaid relief whereupon he may have constrained the Rent Controller, to not proceed to pronounce any adjudication upon the apposite petition for his eviction, petition whereof stood anchored upon, his falling into arrears of rent in respect thereto, till an adjudication stood pronounced upon his suit for damages instituted against the plaintiff. Significantly, he did not even avail the aforesaid remedy rather permitted the learned Rent Controller to make a pronouncement qua his eviction from the demised premises also he has handed over its vacant possession to the plaintiff respondent herein whereupon with his willfully waiving and abandoning all the available grounds for hence his resisting the apposite petition for his eviction from the demised premises renders his resistance, nowat, to the apposite suit of the plaintiff for arrears of rent besides his monetary claim for use and occupation charges qua the demised premises being hence prima facie construable to be contrived or invented, inference whereof stands supported by the factum of his subsequent to the institution of his written statement to the plaint, his belatedly through an application instituted under the provisions of Order 8 Rule 6A CPC besides constituted before the learned trial Court concerting incorporation therein of his counter claim, incorporation whereof therein also for reasons hereinafter referred, warrants its standing discountenanced.

(3.) Be that as it may, the generation of the principle of estoppel whereupon the aggrieved defendant stands thwarted to belatedly espouse a counter claim against the suit of the plaintiff upsurges from the factum of the aggrieved defendant, through an application constituted under the provisions of Order 6 Rule 17 CPC, provisions whereof stands extracted hereinafter, seeking its apposite leave qua its propagation in his written statement wherefrom the workability of the aforesaid provisions of law stands concomitantly aroused:-