Santosh Kumar vs Ramgopal S/O. Lakhiram
2022 Latest Caselaw 4041 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 5321/2019

        Santosh Kumar, (Since Deceased)
1/1.    Anil Kumar, (Since Deceased)
1/1/1. Anita Sharma W/o. Late Anil Kumar, Residents of Anchi
        Ka Bass, Gudha Katla Road, Bandikui, Tehsil Baswa,
        District Dausa (Raj.)
1/1/2. Poonam D/o. Late Anil Kumar, Residents of Anchi Ka
        Bass, Gudha Katla Road, Bandikui, Tehsil Baswa, District
        Dausa (Raj.)
1/1/3. Mohit S/o. Late Anil Kumar, Residents of Anchi Ka Bass,
        Gudha Katla Road, Bandikui, Tehsil Baswa, District
        Dausa (Raj.)
1/1/4. Nidhi D/o. Late Anil Kumar, Residents of Anchi Ka Bass,
        Gudha Katla Road, Bandikui, Tehsil Baswa, District
        Dausa (Raj.)
                                                ----Defendants-Petitioners
                                 Versus


1.      Ramgopal S/o. Lakhiram (Since Deceased) Through LRs.

1/1.    Chandra Shekhar S/o. Late Ramgopal, Resident Of
        Bandikui, Tehsil Baswa, District Dausa.

1/2.    Anil Kumar S/o. Late Ramgopal, Resident Of Bandikui,
        Tehsil Baswa, District Dausa.

1/3.    Vimal Kumar S/o. Late Ramgopal, Resident Of Bandikui,
        Tehsil Baswa, District Dausa.

1/4.    Ved Prakash S/o. Late Ramgopal, Resident Of Bandikui,
        Tehsil Baswa, District Dausa.

1/5.    Smt. Savitri W/o. Late Ramgopal, Resident Of Bandikui,
        Tehsil Baswa, District Dausa.

1/6.    Mst. Sushila D/o. Late Ramgopal W/o. Ramesh Chand,
        Resident Of Bandikui, Tehsil Baswa, District Dausa.

1/7.    Smt. Pushpa D/o. Late Ramgopal W/o. Phool Chand,
        Resident Of Bandikui, Tehsil Baswa, District Dausa.

1/8.    Smt. Manju D/o. Late Ramgopal W/o. Sudhir Kumar,

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         Resident Of Bandikui, Tehsil Baswa, District Dausa.
                                                       ---Plaintiff-Respondents

2 Smt. Anita D/o. Santosh Kumar W/o. Inderjeet, Resident Of Anchi Ki Dhani, Gudha Katla Road, Bandikui East, Ward No.25 At Present Ward No.30, Bandikui, Tehsil Baswa, District Dausa (Raj.)

3 Om Prakash S/o. Shriram, Resident Of Baswa Road, Bandikui, Through Anil Radio And Watch Service, Baswa Road, Bandikui, Tehsil Baswa, District Dausa (Raj.)

----Defendants-Respondents

For Petitioner(s) : Ms.Sangeeta Kumari Sharma, Adv.

For Respondent(s)          :     Mr.Abhi Goyal, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                      Order
24/05/2022

     This   writ    petition     has     been      filed     by   the    petitioners-

defendants challenging the order dated 06.03.2019, whereby

application filed by the petitioners under Order 8 Rule 1A (3) CPC,

has been dismissed.

Learned counsel for the petitioners submitted that the

petitioners-defendants had filed an application under Section 151

CPC read with Order 8 Rule 1A (3) CPC before the Court below,

whereby judgment and decree dated 26.10.2007, passed by the

Civil Judge, Senior Scale, Bandikui, was sought to be brought on

record as possession of the shop was given to the respondents-

plaintiffs and he was carrying his own business there.

Learned counsel for the petitioners submitted that in the

application, it was further mentioned that there was another shop

adjacent to the shop of the plaintiffs, which was also got vacated

in favour of the plaintiffs, after a compromise entered into

(3 of 6) [CW-5321/2019]

between the parties in another suit and as such possession of such

shop was also given on 31.10.2012 to the plaintiff.

Learned counsel submitted that the plaintiffs had got two

shops vacant and were having possession of the shops, there was

no necessity of the shop in question and the ground of bona-fide

necessity was wrongly taken by the plaintiff in their suit & as such

the petitioners filed application with such averments to bring on

record the registered sale deed dated 07.05.2012, compromise

dated 07.05.2015, application dated 08.05.2012, order-sheet

dated 07.05.2012 and registered sale deed dated 31.07.2018.

Learned counsel for the petitioners submitted that the Court

below has wrongly rejected the application filed by the petitioners

only on the ground that the documents which were sought to be

filed by the petitioners, did not relate to the same property in

question and further if any shop has been vacated by any other

occupant, such vacation of shop in implementation of judgment

and decree, had no relation with the shop in question.

Learned counsel for the petitioners further submitted that

the Court below has wrongly assigned a reason that wife of Ved

Prakash - Geeta, who had started her own business in shop

purchased adjoining to shop in question did not have any

relevance to decide the issue and as such the Court below without

due application of mind, has rejected the application.

Learned counsel for the petitioners submitted that once the

landlord takes a specific ground for eviction on bona-fide

necessity, it is very relevant for the tenant to bring into notice of

the Court the other alternative premises/shops available with the

landlord and such facts need to be proved by the tenant in a suit

for eviction on the ground of bona-fide necessity.

(4 of 6) [CW-5321/2019]

Learned counsel for the petitioners further submitted that

the defendants had every right to appraise the Court below by

leading documentary evidence that the ground of bona-fide

necessity was not proved at all due to subsequent developments,

which had taken place.

Learned counsel for the petitioners submitted that the Court

below ought to have considered that the plaintiffs, if got suitable

accommodation for running business, no false plea of bona-fide

necessity could have been permitted to be taken and as such the

Court below has committed error in dismissing the application filed

by the petitioners.

Learned counsel appearing for the respondents submitted

that the petitioners had initially filed an application under Order 6

Rule 17 CPC by seeking amendment in the written statement.

Learned counsel submitted that the said application of the

petitioners was dismissed by the Civil Judge vide order dated

13.10.2008 and the order dated 13.10.2008 was put to challenge

before this Court in S.B.Civil Writ Petition no.12729/2008 and

this Court on 14.07.2015 dismissed the writ petition and further

directed that the suit filed by the respondents-plaintiff was old one

and it was to be disposed of expeditiously by the Trial Court.

Learned counsel for the respondents submitted that once

application for amendment in written statement for taking all the

pleas relating to alternative accommodation available with the

respondents was not entertained, the application filed by the

petitioners is an indirect method to bring these developments on

record and further the thing which cannot be done directly, is

sought to be done indirectly.

(5 of 6) [CW-5321/2019]

Learned counsel for the respondents further submitted that

the present suit has been filed by the plaintiffs in respect of

necessity of the premise in question for son of the plaintiff-Ved

Prakash and other shop has been vacated on account of

compromise or otherwise, the said dispute was in respect of

necessity of the shop for other son of the plaintiffs i.e. Chandra

Shekhar.

Learned counsel for the respondents submitted that even if

the plaintiffs got one shop vacated from one Shankar Lal Shastri,

the same would not give any occasion to the petitioners to plead

and prove before the Court that plaintiff did not require the shop

in question for staring business of his son Ved Prakash.

Learned counsel for the respondents further submitted that

the issue before the Court below is with respect to shop in

question for the personal necessity of the plaintiffs and the

defendants in order to delay and defeat claim of the petitioners,

have filed such an application under Order 8 Rule 1A (3) CPC.

Learned counsel for the respondents submitted that the

Court below has rightly come to the conclusion that the bona-fide

necessity in respect of another shop required for another son of

the Plaintiffs-Chandra Shekhar, could not have been in any

manner connected with the present suit.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court has gone through the order passed by the Co-

ordinate Bench on 14.07.2015 in S.B.Civil Writ Petition

No.12729/2008 and this Court did not accept the challenge of the

petitioners-defendants permitting them to make amendment in

(6 of 6) [CW-5321/2019]

the written statement by filing application under Order 6 Rule 17

CPC.

This Court further finds that the findings with regard to

vacation of other shop has also been taken note of by this Court

while deciding other writ petition and as such the petitioners were

not permitted to make amendment in their written statement on

the ground of vacation of certain shop of the plaintiffs in respect of

the other shop, which was required for son of the plaintiffs-

Chandra Shekhar.

This Court further finds that the petitioners have now filed an

application to bring certain documents on record relating to

judgment and decree passed by the Court and some compromise

being entered between plaintiff and other defendants for vacation

of the shop, this Court finds that once the petitioners have not

been permitted to make amendment in their pleadings, as such

they cannot also be permitted to lead evidence to the same effect.

The purpose of leading evidence is to support the pleadings

and once pleadings are not part of the record, any evidence to the

same effect, will be of no avail.

This Court further finds that the dispute between the parties

is pending since 1997 and Co-ordinate Bench of this Court while

deciding the earlier writ petition on 14.07.2015 also directed the

Trial Court to expedite Trial of the suit, however, the fact remains

that the suit is still not proceeded further.

This Court, accordingly finds that no error has been

committed by the Court below while passing the order dated

13.10.2008 and the petition being devoid of merit is dismissed.

(ASHOK KUMAR GAUR),J Monika/45

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