RADHEYSHYAM MITTAL Vs. KISHORI SHARAN AGARWAL

JUDGEMENT

(1.) THE petitioner is aggrieved by order dated 6.12.2012 passed by Addl. District Judge No. 5, Jaipur Metropolitan, whereby the learned Judge has dismissed the petitioner's application under Order 14, Rule 5 read with Section 151 CPC for framing of an additional issue. The petitioner is also aggrieved by order dated 15.1.2014 passed by the learned Judge, whereby the learned Judge has dismissed the review application filed by the petitioner under Order 47, Rules 1 and 2 read with Sections 114 and 151 CPC for reviewing the order dated 6.12.2012.

(2.) THE brief facts of the case are that the respondent -plaintiffs had filed a suit for recovery of arrears of rent, eviction and perpetual injunction against the petitioner -defendant on the ground of default, and bona fide necessity of plaintiffs' son, Siyasharan Agrawal. The petitioner -defendant filed his written statement contesting the suit. On the basis of pleadings, issues were framed. The petitioner -defendant filed applications under Order 8, Rule 1(3) CPC for taking on record relevant documents, and under Order 6, Rule 17 CPC for amendment of his written statement for bringing on record his defence on the basis of events that took place during the trial. The said applications were allowed by two separate orders dated 28.11.2008 and 20.10.2009. The amended written statement was filed in pursuance of the aforesaid orders. The respondent -plaintiffs did not file any rejoinder to the amended written statement. Further, the learned trial court by its order dated 25.4.2009 dismissed the application of the petitioner -defendant for recalling of the plaintiffs' witnesses to cross -examine them to the extent of amendments brought about in the written statement. By its judgment dated 2.11.2010 the learned trial court decided the suit wherein the benefit of first default was given to the petitioner -defendant. However, the suit was decreed on the ground of bona fide and reasonable necessity.

(3.) MR . Gaurav Sharma, the learned counsel for the petitioner, has vehemently contended that during the pendency of the suit, the plaintiff has sold another shop which belonged to him. Therefore, the petitioner -defendant had sought the amendment of his written statement for bringing the said fact on record. The learned trial court had permitted the petitioner to amend the written statement and the said fact was brought on record. During the pendency of the appeal the petitioner filed his application for framing of an additional issue with regard to the sale of the said shop by the plaintiff. However, without appreciating the facts by order, dated 6.12.2012 the learned Judge has dismissed his application. According to the learned counsel under Order 41, Rule 25 the learned Judge in fact should have framed the additional issue. In order to buttress his contention the learned counsel has relied on the case of State of Gujarat v. Jaipalsingh Jaswantsingh Engineers and Contractors [ : (1994) 1 GLR 258] and on the case of Makhan Lal Bangal v. Manas Bhunia & others [ : AIR 2001 SC 490]. Lastly, the learned Judge has dismissed the review application in a mechanical manner. Therefore, both the impugned orders deserve to be interfered with.