KAILASH CHAND Vs. GYAN CHAND

JUDGEMENT

(1.) THE present writ petition has been filed by the petitioner -defendant -appellant under Art. 227 of the Constitution of India, challenging the order dt. 12.08.2013, passed by the Additional District Judge No. 1, Ajmer (hereinafter referred to as "the appellate Court") in Civil Misc. Appeal No. 138/2007, whereby the appellate Court has dismissed the application of the petitioner -appellant seeking amendment of the written statement under Order VI Rule 17 of C.P.C., at the appellate stage. The short facts giving rise to the present petition are that the respondent No. 1 -plaintiff had filed the suit against the petitioner -defendant seeking eviction in respect of the tenanted shop on the ground of bona fide requirement for his wife, non payment of rent and nuisance. The said suit was decreed by the trial Court vide the judgment & decree dt. 18.05.2007, against which the petitioner -appellant had preferred the appeal before the appellate Court.

(2.) IT appears that during the pendency of the appeal, the petitioner -appellant sought the amendment in the written statement for bringing on record subsequent events, contending inter alia that the respondent had got the possession of one tenanted shop admeasuring 40 x 60 feet, and the respondent had also constructed three rooms, one hall, kitchen, etc. on the first floor of his house. The said application was resisted by the respondent -plaintiff, contending inter alia that though the possession of one godown was received by him from one tenant Ashok Kumar, the said godown was being used by his son Ankit Kumar for his business purposes and that the additional construction made by him was for his residential purpose, whereas the suit shop was required for his wife for her tailoring business. The appellate Court after considering the factual and legal aspect of the matter, dismissed the application of the petitioner seeking amendment in the written statement. Being aggrieved by the said order, the present writ petition has been filed.

(3.) HOWEVER , the learned Senior Counsel Mr. J.P. Goyal for the respondent submitted that the possession of godown received from another tenant was being used by the son of the respondent for his business purpose, and the construction made by the respondent on the first floor of his residence was being used for residential purpose, which could not be used for tailoring purpose by his wife. According to him, the subsequent events having no bearing on the relief claimed by the respondent, the appellate Court has rightly dismissed the said application of the petitioner. The learned counsel has relied upon the decision of the Apex Court in case of Gaya Prasad vs. Pradeep Srivastava, : (2001) 2 Supreme Court Cases 604, and the other decisions of this Court, in support of his submissions.