Dr. Vineet Kothari, J. - (1.) HEARD learned counsel for the petitioner -defendant, tenant and respondent No.1 -plaintiff -lessor.
(2.) THIS writ petition is directed against the order dated 23.09.2011 whereby the learned trial court has rejected the amendment application of the defendant -petitioner under Order 6 Rule 17 CPC in a suit for eviction by which the defendant -lessee sought to amend his written statement at the stage of beginning of defence evidence seeking to include the pleading relating to joint ownership of the suit premises besides the lessor - Kishore Kumar, by other family members viz. Bhanwar Lal and Amritlal. Learned trial court has rejected the said application on the ground of delay as according to proviso of Order 6 Rule 17 CPC, which permits such amendment only before the trial begins, namely, issues are framed in the suit. Learned counsel for the petitioner - defendant, Mr. Sandeep Shah, relying upon a decision of Full Bench of Gujarat High Court in the case of Nanalal Girdharlal & Anr. v. Gulamnabi Jamalbhai Motorwala & Ors. reported in : AIR 1973 Guj 131(V. 60 C. 19) (Para 11) submitted that if the amendment is not allowed then the defendant lessee would be precluded from showing that his landlord was not the exclusive owner of the leased property but was only one of the co -owners; and that notices to quit given by him is, therefore, not sufficient to determine the lis.
(3.) ON the ground of delay in applying for amendment, learned counsel for the petitioner submitted that the same deserves to be condoned in view of decision of Hon'ble Supreme Court in the case of Surender Kumar Sharma v. Makhan Singh reported in : (2009) 10 SCC 626 and in the case of Usha Balasaheb Swami & Ors. v. Kiran Appaso Swami & Ors. Reported in : (2007) 5 SCC 602.;