KAUSHALYA DEVI Vs. ABDUL RAHOOF KHAN

JUDGEMENT

(1.) THIS writ petition has been preferred by the petitioners against the order dated 22.04.2013 passed by Civil Judge (Jr.Division), Chittorgarh (for short 'the trial court' hereinafter) in Case No.37/2009, whereby the learned trial court has rejected the applications preferred by the petitioners under Order 6 Rule 17 read with section 151 CPC for seeking necessary amendments in the written statement and under Order 8 Rule 1A(3) read with section 151 CPC for producing a registered sale -deed dated 04.06.2004 on record.

(2.) BRIEF facts of the case are that the respondent filed a suit for mandatory and permanent injunction against the petitioner - defendants, while alleging that the petitioners are raising construction on the plot No.B -62 situated at Pratap Nagar, Chittorgarh without getting permission from the Municipal Board and without adhering the conditions of leaving sublet. In the said suit, the respondent has also claimed that if the petitioners are allowed to raise construction, in the manner they are raising, the respondents will be deprived of light and air and, therefore, a permanent injunction for restraining the petitioners from raising construction may be issued. In the said suit, the written statement was filed by the petitioners on 20.04.2009 and on the basis of the pleadings of the parties, issues were framed and the evidence of the rival parties were recorded and the matter was fixed for final arguments.

(3.) 06.2004 on record. The learned trial court has rejected both the above applications preferred by the petitioners, while observing that in the written statement filed by the petitioners, it was claimed that the petitioners are raising constructions on the plot in question as per the deemed permission granted by the Municipal Board because the petitioners applied for seeking permission for raising constructions before the Municipal Board by depositing necessary fees on 19.02.2009 and when the Municipal Board did not raise any objection, the petitioners raised construction. The learned trial court has further observed that now the petitioners have come out with a case that they have raised the construction on the plot in question as per the permission granted by the Municipal Board on 04.06.2004 and as such, the petitioners want to change their stand taken by them earlier in the written statement. The learned trial court also observed that no satisfactory explanation has been furnished by the petitioners for not producing the sale -deed dated 04.06.2004 before commencement of the trial and, therefore, the permission for seeking necessary amendments in the written statement and for producing the sale deed dated 04.06.2004 on record, cannot be granted. 4. The learned counsel for the petitioners has assailed the validity of the impugned order passed by the learned trial court of rejecting the applications for amending the written statement and for producing the registered sale -deed dated 04.06.2012 and argued that it is permissible under the law to take inconsistent pleas and the courts should be more liberal in allowing amendment of the written statement. The learned counsel for the petitioner has further argued that the learned trial court cannot disallow the amendments in the written statement on the ground that the defendant is altering his defence. It is further contended by learned counsel for the petitioners that by way of application for seeking amendment in the written statement, the petitioners simply sought to bring into an additional fact on record to the effect that the petitioners have raised construction on the plot No.B -62 as per the permission granted by the Municipal Board on 04.06.2004. It is also contended by the learned counsel for the petitioners that by bringing this fact on record, no prejudice will be caused to the respondent, therefore, the trial court has illegally rejected the applications of the petitioners without looking into this aspect of the matter.