Nazmudeen Jhumarwala vs Gefarlal Nagar Dharmshala
2022 Latest Caselaw 7322 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6664/2022

Nazmudeen Jhumarwala S/o Shri Kalimudeen Jhumarwala, Aged About 48 Years, By Caste Bohra Musalman, Resident Of Dahod, Gujrat, At present Commercial Area, Banswara, Tehsil And District Banswara (Rajasthan).

----Petitioner Versus

1. Gefarlal Nagar Dharmshala, Through Its Karta Pramod Kumar Yagyanik S/o Radhelal Yagyanik, By Caste Brahmin, Resident Of Nagarwala, Banswara (Rajasthan).

2. Vinay Kumar Gupta S/o Bhagwan Das Gupta, Address Navya Enterprises, Custom Chouraha, Banswara (Raj.).

                                                                  ----Respondents


For Petitioner(s)          :     Mr. R.S.Bhati
                                 Ms. Mamta Vyas



            HON'BLE MR. JUSTICE VIJAY BISHNOI

                           Judgment / Order

17/05/2022

This writ petition is filed by the petitioner being aggrieved

with the order dated 13.04.2022 passed by the Rent Tribunal,

Banswara (for short 'the trial court') in Rent Case No.01/2017

whereby, the application filed on behalf of the petitioner under

Order 8 Rule 9 read with Section 151 CPC has been rejected.

The brief facts of the case are that the respondent No.1 has

filed an eviction petition against the petitioner and the respondent

No.2 on the ground of subletting of the premises in question.

Reply to the said eviction petition was filed on behalf of the

petitioner as well as the respondent No.2 wherein, the fact of

subletting the premises in question has specifically been denied.

(2 of 4) [CW-6664/2022]

Thereafter, evidence of the respondent No.1 was concluded and

the matter was fixed for producing evidence of the petitioner. At

this stage, the petitioner has moved an application under Order 8

Rule 9 read with Section 151 CPC with a prayer to allow him to

incorporate the factum of execution of a partnership deed between

the petitioner and the respondent No.2, however, the same has

been rejected by the trial court vide order impugned.

Learned counsel for the petitioner has submitted that as the

petitioner was not in possession of the partnership agreement at

the time of the filing of reply to the eviction petition, he has failed

to mention the said fact in the reply. It is also submitted that the

petitioner is ready to pay appropriate cost and in that event, the

application filed by the petitioner for incorporating certain facts in

the reply may be allowed.

Learned counsel for the petitioner while placing reliance on

the judgment of the Hon'ble Supreme Court rendered in the case

of Olympic Industries Vs. Mulla Hussainy Bhai Mulla

Akberally & Ors. (Civil Appeal No.4148-4149 of 2009)

decided on 07.07.2009 has argued that the Hon'ble Supreme

Court has held that delay cannot be a ground for the dismissal of

an application under Order 8 Rule 9 of the Code of Civil Procedure.

Heard learned counsel for the petitioner; perused the

impugned order as well as the material available on record.

The trial court has rejected the application filed on behalf of

the petitioner while observing that the factum of execution of so-

called partnership agreement between the petitioner and the

respondent No.2 was in knowledge of the petitioner since

beginning, however, the same has not been mentioned in the reply

to the eviction petition. The trial court has also observed that even

(3 of 4) [CW-6664/2022]

the respondent No.2 has also filed reply to the eviction petition,

but in the said reply, he has not mentioned about the existence of

so-called partnership agreement between him and the petitioner.

The trial court has further observed that even the petitioner did

not put any suggestion to the respondent No.1 during his cross-

examination regarding the existence of the partnership agreement

between him and the respondent No.2. After observing this, the

trial court has rejected the said application by the impugned order.

It is not in dispute that at the time of filing of reply to the

eviction petition, the petitioner was in knowledge of the so-called

partnership agreement executed between him and the respondent

No.2, but the said fact has not been mentioned in the reply. The

respondent No.2 has also not mentioned the said fact in his reply

and no question of this effect was suggested by the petitioner and

the respondent No.2 while cross-examining respondent No.1.

In such circumstances, I do not find any illegality in the

impugned order passed by the trial court.

So far as judgment of the Hon'ble Supreme Court rendered

in Olympic Industries case (supra) is concerned, in the said

judgment, the Hon'ble Supreme Court has held that an application

under Order 8 Rule 9 CPC cannot be dismissed on the ground of

delay only where no prejudice was caused to the party opposing

such/said amendment or acceptance of additional counter

statement which could easily be compensated by cost. However, in

the present case, the trial court has not rejected the application

filed by the petitioner solely on the ground of delay, but on the

ground that the petitioner was very well aware of the fact of

existence of so-called partnership agreement between him and the

respondent No.2 and has not incorporated the same in the reply.

(4 of 4) [CW-6664/2022]

The trial court has further taken into consideration the fact that

the respondent No.2, in his reply to the eviction petition, has not

mentioned the said fact and no cross-examination was conducted

by the petitioner on this point from the respondent No.1 during his

cross-examination.

In such circumstances, the above-referred judgment of the

Hon'ble Supreme Court is of no help to the petitioner.

Resultantly, this writ petition being devoid of merit is hereby

dismissed.

Stay petition is also dismissed.

(VIJAY BISHNOI),J

37-AjaySingh/-

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