Dismissed

Lrs of Gurcharan Das v. Rajender Kumar

Rajasthan HC18 Apr 2024CW/4734/2024

Case brief

AI extract

What is this about?

The High Court rejected the writ petition challenging the dismissal of an application to amend pleadings under CRPC Order VI Rule 17. It held the trial court was correct, noting the delay was not bonafide and the petitioner already knew about the expanded applicability of the Rent Act.

What did the court decide?

The writ petition, stay application, and all other pending applications were dismissed.

Lrs of Gurcharan Das Vs Rajender Kumar — Property and Title | Rajasthan HC (2024)

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[2024:RJ-JD:16778]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 4734/2024

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Lrs Of Gurcharan Das, S/o Sh. Pokhardas Chhabra, R/o Ward No. 21 Old, Near White House, Suratgarh District Sriganganagar (Deceased)

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Rajendra Kumar Chhabra Alias Rajkumar S/o Late Sh. Gurcharan Das, Aged About 51 Years, R/o Chhabra Cloth Store, Main Market, Bikaner Road, Suratgarh, District Sriganganagar.

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Vishal Chhabra S/o Late Sh. Gurcharan Das, Aged About 40 Years, R/o Chhabra Dental Clinic, C.s.f. Complex, Suratgarh, Dist. Sri Ganganagar.

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Mujubala D/o Late Sh. Gurcharan Das, Aged About 47 Years, R/o Chhabra Cloth Store, Main Market, Bikaner Road, Suratgarh, Dist. Sriganganagar.

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----Petitioners

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Versus

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Rajender Kumar S/o Sh. Manak Chand Daga, Aged About 67 Years, R/o Ward No. 24, Suratgarh, District Sriganganagar.

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Smt. Ritu W/o Late Sh. Praveen Kumar, Aged About 46 Years, R/o Chhabra Cloth Store, Main Market, Bikaner Road, Suratgarh, District Sriganganagar.

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Kartik S/o Late Sh. Praveen Kumar, Aged About 22 Years, R/o Chhabra Cloth Store, Main Market, Bikaner Road, Suratgarh, District Sriganganagar.

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Kanupriya D/o Sh. Praveen Kumar, Aged About 26 Years, R/o Chhabra Cloth Store, Main Market, Bikaner Road, Suratgarh, District Sriganganagar.

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----Respondents

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For Petitioner(s) : Mr. Monal Chugh

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HON'BLE DR. JUSTICE NUPUR BHATI

Order

18/04/2024

[2024:RJ-JD:16778]

[CW-4734/2024]

(2 of 6)

This writ petition under Articles 226 and 227 of the Constitution of India, has been preferred by the petitioner assailing the impugned order dated 06.02.2024 (Annex. 7) passed by the Learned Additional Senior Civil Judge, Suratgarh (hereinafter referred to as the ‘Trial Court’). The petitioner has also sought stay on the proceedings in Civil Suit No. 51/2008 & CIS No. 308/2014 pending before the learned Trial Court.

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Briefly stated, the facts of this case are that the plaintiff/respondent had filed a suit seeking possession and recovery of mesne profits for use and occupation of the shop measuring 470 square feet situated at Main Bazar, Bikaner Road, Suratgarh City. The plaintiff/respondent had sent a notice to the petitioners dated 30.08.2008 stating therein that the tenancy had been terminated from the last date of June, 2008 and thus the plaintiff/respondent is entitled to recover Rs. 18000/- per month from the use and occupation of the premises in dispute from July 2008 till he gets the vacant possession of of the premises in dispute.

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Thereafter, a notice dated 12.09.2005 had been sent by the plaintiff/respondent after which the parties entered into an agreement, wherein the rent of the premises was increased to Rs. 40,000/- per annum and the plaintiff/respondent promised to not initiate legal proceedings regarding recovery of the premises for a period of 5 years. The plaintiff/respondent filed a suit for recovery dated 28.08.2008 to which the petitioners filed their written statement and subsequently, the learned Trial Court vide order 03.02.2014 (Annex. 3), framed 8 issues.

[2024:RJ-JD:16778]

[CW-4734/2024]

(3 of 6)

In the meanwhile, the petitioners filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') seeking amendment at appellate stage that the Civil Court has no jurisdiction to decide the suit and dispossess the tenant under Transfer of Property Act, 1882 (hereinafter referred to as 'TP Act'). The said application was dismissed by the learned Trial Court vide order dated 06.02.2024 (Annex. 7).

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Thus, being aggreived of the order dated 06.02.2024 (Annex. 7) passed by the learned Trial Court, the petitioner has preferred this writ petition. 6. Learned Counsel for the petitioners submits that the impugned order dated 06.02.2024 (Annex. 7) has been wrongly passed as the notification dated 11.07.2014 has been issued, by which the Rajasthan Rent Control Act, 2001 (hereinafter referred to as 'Act of 2001') has been extended up to 10 Municipal Areas and out of which Suratgarh City has also been included and thus, the Civil Court will not have jurisdiction to hear and decide the dispute between the landlord and the tenant. Learned counsel for the petitioners submits that the aforementioned matter was referred to the Hon’ble Division Bench, whereby the Hon'ble Court vide judgment dated 27.10.2017 in K. Ramrajan vs Shri Pukhraj [D.B. Civil Reference No. 1/2015] has observed that the civil court has no jurisdiction to hear and decide the dispute between the landlord and the tenant and the civil proceedings will lapse in such cases. The relevant para of the judgment is reproduced as under:

(4 of 6)

[2024:RJ-JD:16778]

[CW-4734/2024]

"44. The reference is accordingly answered in terms of para 31 and 43 above. Meaning thereby, once the Rajasthan Rent Control Act, 2001 was extended to the municipal areas, the Civil Courts would lose jurisdiction to adjudicate a dispute between a landlord and a tenant. No tenant could be evicted by a Civil Court. The eviction had to be as per the Rajasthan Rent Control Act, 2001 and on the grounds specified in Section 9 thereof. Even where decrees of ejectment had been passed by the Civil Courts and matters were pending consideration in appeal, the civil proceedings would lapse."

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Learned counsel for the petitioners submits that since the aforementioned matter is pending before the Apex court and thus, the proceedings pending before the civil court must be stayed till the Hon'ble Apex Court decides the matter.

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Learned Counsel for the petitioners also submits that the matter was required to be decided by the Rent Tribunal and not by the Civil Court. He further submits that the learned Trial Court has wrongly dismissed the application filed by the petitioners under Order VI Rule 17 of the CPC observing that there is no requirement of such amendment. He also submits that if the application under Section 106 of TP Act is filed then the Civil court would have the jurisdiction whereas in the present case the matter is governed by Section 9 of the Act of 2001.

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Heard learned counsel for the petitioner, perused material available on record as well as the judgment cited at Bar. 9. This Court finds that the learned Trial Court has rightly observed that the petitioners had the knowledge of the Notification dated 11.07.2014, wherein it was notified that the applicability of the Act of 2001 would further be extended to 10 Municipal Areas, amongst which, Suratgarh City was also included

(5 of 6)

[2024:RJ-JD:16778]

[CW-4734/2024]

and thus the application of the petitioners seeking amendment to their reply to the Original Suit, is nothing but an attempt to delay the proceedings. Even prior to issuance of Notification dated 11.07.2014, the petitioners by way of filing applications sought amendment on the ground that the matter is to be decided by the Rent Tribunal only, which applications however, was rejected vide order dated 21.09.2012.

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This Court also observes that the petitioners have not placed on record anything to show that the delay caused in filing the application under Order VI Rule 17 CPC was bonafide and thus in the absence of which, the very purpose of Order VI Rule 17 gets defeated. The provision reads as under:

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"17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

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The proviso to Rule 17 cannot be read in isolation and it has

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to be ensured by the Court that the parties could not have raised the matter earlier, in spite of due diligence, which the petitioners have failed to prove, as rightly determined by the learned Trial Court.

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Thus, in the considered opinion of this Court, no interference (Annex.7) is made out in the order dated 06.02.2024 passed by the learned Trial Court. The writ petition lacks merits and,

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(6 of 6) [CW-4734/2024]

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[2024:RJ-JD:16778]

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therefore, the same is hereby dismissed. Stay application as well as all other pending applications, if any, also stand dismissed.

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(DR.NUPUR BHATI),J

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83-amit/-

Lrs of Gurcharan Das v. Rajender Kumar

Case brief

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Lrs of Gurcharan Das v. Rajender Kumar

Case brief

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