KEDAR NATH Vs. CIVIL JUDGE (JR. DIVISION) RAJGARH

JUDGEMENT

(1.) THE petitioner is aggrieved by the order dated 24.10.2013 passed by the Civil Judge (Jr. Division), Rajgarh, District Alwar, whereby the learned Magistrate has dismissed an application filed by the petitioner under Order 6 Rule 16 CPC and has refused to stike off certain paras mentioned in the plaint.

(2.) THE brief facts of the case are that the respondent NO.2 as the plaintiff filed a suit for eviction and possession against the petitioner -defendant under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (henceforth, 'the Old Act', for short) as well as under the Transfer of Property Act on the ground of nuisance, bona fide necessity and comparative hardship. It was stated in the suit that the suit shop was rented to the petitioner on 1.12.1973 @ Rs. 68 per month. The respondent No.2 gave a legal notice to the petitioner -defendant to vacate the shop in dispute. But he refused to do so. It was also stated in the plaint that if the court comes to the conclusion that after the enactment of the Rent Control Act, 2001, the old Act has been repealed, then the suit of respondent No.2 be treated as one under Section 111 of the Transfer of Property Act. It was prayed that decree of eviction, and in the alternative, a decree of possession may be granted to the respondent. The petitioner -defendant filed his written statement denying most the contents mentioned in the plaint. The learned trial court framed as many as six issues. Out of those six issues, three issues related to bona fide necessity, nuisance and comparative hardship and one regarding limitation and another regarding dismissal of suit due to giving notice with false fact. Meanwhile, an application under Order 14 Rule 5 CPC was moved for deleting the issues No. 1 to 3. The learned trial court vide order dated 15.2.2013 dismissed the the application. Being aggrieved by the order dated 15.2.2013, the petitioner preferred a writ petition, namely S.B. Civil Writ Petition No. 3387/2013 before this Court. The said petition was allowed by order dated 1.8.2013. In view of the order dated 1.8.2013, the learned trial court deleted the issues No. 1 to 3. After deletion of issues, on 23.10.2013, the petitioner moved an application under Order 6 Rule 16 CPC praying that since the issues no. 1 to 3 have been deleted, as such, pleading in the suit pertaining to issues no. 1 to 3 may be struck off. By order dated 24.10.2013, the learned trial court dismissed the said application. Hence, this writ petition before this Court.

(3.) ON the other hand, the learned counsel for the respondent has contended that such an observation is merely an observation and is not a judicial finding. Therefore, the said observation would not adversely affect the petitioner's interests. Moreover, once the three issues were deleted by the learned trial court, the paras dealing with these issues lose their significance. Lastly, that instead of submitting his evidence, the petitioner is merely filing frivolous applications in order to delay the trial and in order to escape from his liability of vacating the premises in dispute. Therefore, it is merely a subterfuge for prolonging the trial. Thus, the learned counsel for the respondent has supported the impugned order.