High Court dismissed writ petition challenging dismissal of tenant's application to amend reply in eviction suit. Court held amendment cannot be entertained in 10-year-old case at evidence stage and plea can be raised at hearing.
Writ petition dismissed; application to amend reply not allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
I
I
I I I I I I
HIGH COURT OF JUDICATURE F-OR RAJASTHAN BENCH AT JAIPUR
S.B. Civil Writ Petition No. 878612019
Mahendra Gargieya S/o Late Shri G.d. Gargieya, Aged About 59 Years, R/o Bhagat Bhawan, M.i. Road, Jaipur (Raj.)
Versus
2. M/s B.d. Gargieya And Company Through Its Partner, R/o R.s. Mangal, Bhagat Bhawan, M.i. Road, Jaipur (Raj.) ;&"&
*< ?~ " ? *% J ,.;,?j ----Respondents
For Petitioner(s) : Mr. J.P. Gdyal, Sr. Advocate with Mr. Abhinav Aroira For Resp.ondent(s) 1- a r r I i
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
The instant writ $ekitionih69 been filed by the petitioner 4 <. %. challenging the order dated 08.03.2019 whereby the application filed by the petitioner-tenant for making amendment in the reply under Order 6 Rule 17 has been dismissed.
Learned Senior Counsel Mr. J.P. Goyal has submitted that the court below has committed illegality in passing the irrrpugned order as the eviction application itself was not maintainable as the statutory period of giving of notice had not expired before filing eviction the application.
Counsel submitted that respondent-owner had given notice through his Advocate dated 06.07.2007 and the said notice was of 15 days and before expiring of said period of 15 days, the application was filed on 18.07.2007.
Counsel submitted that since there was a legal issue involved, as such the petitioner had filed application to amend the replylwritten statement. Counsel submitted that delay in filing & application in such cases cennot affkct the rights of the person, if the application.for eviction itself is not maintainable.
Counsel further submitted that the fact of the statutory notice being not complied with, came to notice of the petitioner ancl as such an applicationcf;.ha~ filed to make necessary G amendment.
Heard learned counsel for the petitioner. P? \ .a pi$#& " .-.., a .&., "... ... f.""!'""'" .&.- "$. q I . :,i2,{; .%, This court fia,s&hlt:$h:6. ~,Q&$7i3~> ++$ ..-.%::: oOutttCbelow % I has recorded the & fact that the reply to evictioh abplication was filed by the petitioner on 22.09.2007 and all ddcuments were annexed with 2 1 p.- 1. ' -, -. P - the application, I , s2 ,J >,*$ **_jw_ v JX!** : ;&eJf m . , r 7 ,ti 3w 'I : : i :.~ 1
The court below found that the fact of statutory period' not complied with and ha'd. co'me to n,otice of the petitioner I1 p ,, 8 years back.
The court below further found that at the time of filing of the replylwritten statement all the necessary pleas of statutory notice period not complied with, were already in the knowledge of the petitioner.
The court below has further found that the case is pending for more than 10 years and the evidence of Phe parties is to be recorded.
This court finds that the court below has not committed any error by passing the order which is challenged before this court. This court finds that since the matter is pending for more than 10 years before the court below and at the trial is at the stage of recording evidence, the said application cannot be entertained.
This court further finds that the petitioner was not vigilant in seeking the amendment of his pleadings and as such no ground is made out to cause interference and the present writ petition is :dismissed.
This court finds that the plea which is sought to be taken in the written statement, it: at ail is a legal plea, the ~z &. petitioner is always free2,to take- Such plea at the time of hearing before the court concerned.
2 issues framed by the court
Whether an application to amend reply under Order VI Rule 17 CPC comes to be entertained when the matter is pending for more than 10 years at the stage of evidence recording.
Whether failure to seek amendment of pleadings earlier vitiates the right to raise a legal plea later during hearing.
Mahendra Gargieya
Icici Bank Limited
M/s B.d. Gargieya And Company
R.S. Mangal
Govind Prasad Satda
Ashok Kumar Gaur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
