Ahsaan Khan S/O Late Shri Shakoor ... vs Javed Khan S/O Shri Saeed Khan
2021 Latest Caselaw 6382 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 5499/2019
Ahsaan Khan S/o Late Shri Shakoor Khan, Aged About 54 Years,
Resident Of House No. A-16, Chandramahal Colony, Cheeni Ki
Buraj, Chokari Sarahad, Jaipur.
                                                                   ----Petitioner
                                   Versus
1.     Javed Khan S/o Shri Saeed Khan, Aged About 34 Years,
       Caste- Muslim, R/o 730, Surajpura House, Cheeni Ki
       Buraj, Chokari Sarahad, Jaipur.
2.     Saeed Khan S/o Late Shri Shakoor Khan, Aged About 57
       Years, R/o 730, Surajpura House, Cheeni Ki Buraj,
       Chokari Sarahad, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. Gaurav Sharma Saraswat For Respondent(s) : Mr. Siddharth Bapna

HON'BLE MR. JUSTICE INDERJEET SINGH Order

11/11/2021

Instant writ petition has been filed by the petitioner

challenging the order dated 07.03.2019 whereby the application

submitted by the petitioner under Order 14 Rule 5 read with

Section 151 CPC was dismissed by the learned Trial Court.

Brief facts of the case are that the respondents-plaintiffs filed

a suit for possession and permanent injunction along with mesne

profit against the petitioner-defendant before the learned Trial

Court. During the pendency of the suit proceedings before the

learned Trial Court, the petitioner-defendant filed an application

for amendement in the written statement, which was allowed by

the learned Trial Court and thereafter, an additional issue was

framed by the learned Trial Court on the application submitted by

(2 of 3) [CW-5499/2019]

the petitioner-defendant. Thereafter, again when the matter was

fixed for final arguments, the petitioner-defendant moved an

application under Order 14 rule 5 read with Section 151 CPC,

which was dismissed by the learned Trial Court vide order dated

07.03.2019. Hence, the present writ petition has been filed by the

petitioner.

Counsel for the petitioner submitted that the learned Trial

court has committed serious illegality in dismissing the application

filed on behalf of the petitioner under Order 14 Rule 5 read with

Section 151 CPC. Counsel further submits that the application for

amendment in the issue can be filed at any stage.

In support of his contentions, counsel for the petitioner relied

upon judgment passed by the Hon'ble Supreme Court in the

matter of Makhan Lal Bangal Vs. Manas Bhunia and Ors,

reported in (2001) 2 SCC 652, and of a Co-ordinate Bench of

this Court in the matterss of Mohru & Anr. Vs. Smt. Sara Devi

& Ors., reported in 2018 (1) CJ(Civ.) (Raj.) 265 and

Gunwant Singh Jhala Vs. Dr. Yuvraj Singh Jhala & Anr.,

reported in 2018 (3) CJ (Civ.) (Raj.) 1937.

Counsel for the respondents has opposed the writ petition

and submitted that on earlier occasion the petitioner also filed an

application under Order 14 Rule 5 read with Section 151 CPC,

which was allowed by the learned Trial Court and new issue

No.9(a) was framed by the leaned Trial Court and the petitioner-

defendant failed to mention these facts in the earlier application.

Counsel further submits that the petitioner has filed this

application just to delay the suit proceedings after a delay of 13

years when the matter is pending for completion of arguments.

(3 of 3) [CW-5499/2019]

In support of this contention, counsel for the respondent

relied upon a judgment passed by this Court in the matter of

Babul Lal Vs. Nagar Palika, Sumerpur (Distt. Pali) reported

in 2002 SCC Online Raj 979 : (2003) 2 RLW 940 and another

passed by the Bombay High Court in the matter of Archana

Ashok Amburle Vs. Arpana Shankar Dudham and Ors.,

reported in 2019 (2) Mh.L.J.

Heard counsel for the parties and perused the record.

This writ petition filed by the petitioner deserves to be

dismissed, for the reasons; firstly, issue with regard to cause of

action is already covered in the issues No.1 & 2 framed by the

learned Trial Court, secondly, during the suit proceedings, the

petitioner on earlier occasion also filed application under Order 14

Rule 5 read with Section 151 CPC upon which, the learned Trial

Court has already framed the additional issue No.9(a) and at that

point of time, the petitioner failed to make a prayer for framing of

these issues with regard to cause of action, lastly, the petitioner

filed this application for framing additional issue at the time of

final arguments made by the respondent-plaintiff, in my

considered view, the intention of the petitioner-defendant is just

to delay the suit proceedings, therefore, I am not inclined to

exercise the jurisdiction of this Court under Article 227 of the

Constitution of india.

Hence, the present writ petition stands dismissed. All the

pending applications also stand disposed of.

(INDERJEET SINGH),J

Upendra Pratap Singh/75

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