RADHEY SHYAM SONI Vs. SUMER MAL PHOPLIALIA

JUDGEMENT

(1.) THIS special appeal is directed against the order of the learned Single Judge dated 1.8.2005 in S.B. Civil Writ Petition No. 2603/2004 dismissing the writ petition of the appellant. The appellant had filed the writ petition challenging the order dated 13.4.2004 by which the trial Court rejected his application for amendment of the written statement and permission to file document.

(2.) FACTS of the case so far as relevant do disposal of this appeal are that respondent No. 1-plaint filed suit against the appellant for eviction on grounds of personal necessary and default/arrears of rent. Case of the appellant as regards the plea of personal necessity is that during pendency of the suit on 21.5.2003 the respondent obtained vacant possession of another shop and the ground of personal necessity, therefore, is no more available to him. The plaintiff in course of his evidence denied having obtained possession of another shop. The appellant thereafter obtained copies of the relevant orders showing delivery of possession of the other shop to the respondent and filed applications for amendment of the written statement and taking said documents on record in terms of Order 8 Rule 1(3) of the Code of Civil Procedure. The applications were rejected the appellant filed the connected writ petition. The writ petition having been dismissed he has come to Division Bench in special appeal.

(3.) COUNSEL for the respondent submitted that the suit was instituted in the year 1987 and if the application for amendment of the written statement is allowed it may cause prejudice to the respondent as it may give rise to chain of consequences. The desired purpose can be served by permitting the party to file affidavit as provided under Order 19 Rule 1, CPC as held in Ramesh Kumar v. Kesho Ram (supra). He referred to the following observations in the judgment :