SHIV SHANKAR MAHAWAR Vs. LALIT KUMAR

JUDGEMENT

(1.) THE petitioner/defendant is aggrieved by the order dated 30.5.2013 passed by the Judge, Rent Tribunal, Alwar whereby the learned Judge has allowed the application under Order 6 Rule 17 CPC filed by the respondent No. 1/plaintiff for making necessary amendment in the plaint. The brief facts of the case are that the shop in dispute was rented to the petitioner -defendant by the plaintiff -respondent. In 2003, the plaintiff -respondent filed a petition for eviction under Section 9 of the Rajasthan Rent Control & Eviction Act, 2001, against the defendant -petitioner on the ground of bonafide necessity as well as material alteration in the rented premises. The petitioner submitted his written statement and claimed that the plaintiff is already having vacant shops. Thus, the petitioner denied the ground of bonafide necessity. The plea of material alteration was also denied. On the basis of pleadings of the parties, the learned trial court framed issues on 19.5.2004. Thereafter, on 12.7.2007, the plaintiff was cross -examined. After completion of evidence, the matter was posted for final arguments in 2008. At this stage of the proceedings, on 28.8.2008, the plaintiff -respondent filed an application under Order 6 Rule 17 CPC before the learned trial court for making necessary amendment in the plaint. The petitioner submitted reply to the said application on 1.9.2008. By order dated 30.5.2013, the learned trial court has allowed the application. Hence, this petition before this court.

(2.) RELYING on the case of J. Samuel & Ors. Vs. Gattu Mahesh & Ors. [ : (2012) 2 SCC 300], the learned counsel for the petitioner has contended that after the amendment of Order 6 Rule 17 CPC and with the induction of proviso thereto, a third test has been laid down by the legislature, namely the test of "due diligence". According to the learned counsel, in a testimony which was recorded on 12.7.2007, a specific question was put to the defendant. In answer to the said question, the defendant had claimed that he knows the fact that the petitioner has G -177, M.I.A. in his possession, and that is where the petitioner has constructed his factory. He also knows the fact that the petitioner has a house in N.E.B. where he can easily run his office. Despite knowing this fact on 12.7.2007 or earlier still he did not file any application for amendment in the plaint till 28.8.2008. Moreover, in his application he does not spell out a single step which would show his due diligence in seeking the amendment. Thus, while permitting the amendment, the learned Judge was required to see whether the third test laid down by the legislature was passed or not. However, the learned Judge has failed to do so. Therefore, the impugned order deserves to be interfered with.

(3.) HEARD the learned counsel for the parties and perused the impugned order.