DULI CHAND JAIN Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) HEARD .

(2.) PLAINTIFF -non -petitioner filed a suit for eviction in the court of Munsif (North), Kota, against the defendant -petitioner on the ground that the latter had created nuisance. According to the plaintiff, the defendant had not constructed any chimney for removal of smoke coming out of oven (Bhatti) of his shop, and, thus, created nuisance in the premises. In the written statement, the defendant petitioner admitted that he was tenant in the aforesaid shop, but denied that any nuisance was caused by him. The learned trial court dismissed the plaintiffs suit. Thereafter, the matter was carried in appeal before the learned First Appellate Court. During the pendency of the appeal, an application under Order 6, Rule 17, CPC, was filed by the defendant petitioner seeking amendment in the written statement to the effect that the defendant was using kerosene in place of hardcoke in the oven (Bhatti,) and, a gas Bhatti has been installed which does not release smoke; and that the son of the plaintiff has opened a medical shop in the adjoining shop, and, he was carrying out his business peacefully without facing any difficulty. The plaintiff -non -petitioner contested the application, and, the learned First Appellate Court -Additional District Judge No. 4, Kota, dismissed the application of the defendant petitioner vide order dated 9.4.1992. going everieved thereby the petitioner has preferred this revision petition.

(3.) IN the case of Saremal v. Jubarmal 1976 WLN 332, the plaintiff brought the suit for eviction on the ground of sub -letting. Subsequently, before filing of the suit, the tenant removed the sub -letting. It was held by this Court that sub -letting need not subsists till filing of the suit and the right to claim eviction on the ground of sub -letting, accrued to Landlord cannot be divested unless he waives it. Once, the tenant had sub -let the suit premises, the right to seek eviction accrues to the land -lord. Simply because the tenant dislodged the sub -tenant, the land -lord cannot be divested of his right to seek eviction. On the analogy of this decision, it may very well be laid that if any right to seek eviction accrued to the land -lord plaintiff -non -petitioner on the ground of nuisance by smoke, then, he cannot be divested of his right to seek eviction merely because, the tenant petitioner has now been using kerosene in place of hardcoke, and the gas oven was installed. In view of this principle of law, the proposed amendment is of no consequence. I, therefore, do not find any legal infirmity in the impugned order whereby the amendment application of the defendant petitioner has been rejected.