MAHESHWARI, J. - (1.) BY way of this writ petition, the plaintiff-petitioner seeks to question the order dated 08. 12. 2007 (Annex. 12) as passed by the learned Trial Court allowing an application for amendment of the written statement as moved by the defendants-respondents. The plaintiff-petitioner essentially contends that the amendment operates to his prejudice in taking away an accrued right; and that the amendment could not have been allowed after the trial had commenced.
(2.) THE background facts and relevant aspects of the matter are that the plaintiff-petitioner has filed the suit (C. O. No. 20/2003 in the Court of Additional Civil Judge (Senior Division) No. 3, Jodhpur) for eviction and recovery of arrears of rent against the defendants-respondents in relation to a shop situated outside Sojati Gate, Jodhpur with the averments in the plaint (Annex. 13), inter alia, that the shop in question is of his ownership and had earlier been of the ownership of his aunt Dr. Parvati Gehlot; that the suit shop was let to Swaroopji, the father of the defendants, by Dr. Parvati Gehlot in the childhood of the plaintiff; that the tenant Swaroopji started his business in the suit shop in the name of Shyam Provision Store; that until the father of the defendants was alive and until the then owner Dr. Parvati Gehlot was alive, they continued to pay and receive the rent as settled between them; that afterwards, the defendants continued to carry on business in the name of Shyam Provision Store and entered into an oral agreement with the plaintiff to make payment of rent at Rs. 700/- per month and made such payment until 30. 09. 1999 but not thereafter; that upon the plaintiff demanding the due rent, the defendants stated slump in their business and sought time to make payment; that appreciating their request, earlier the plaintiff did not press hard for payment of rent but despite later demands, the defendants have not made any payment and are liable to pay Rs. 25,200/- towards due rent for last three years. THE plaintiff has averred that the defendants are defaulters in payment of rent and has also averred about his reasonable and bonafide requirement of the suit shop for establishing an office for sale and purchase of immovable property with the submission that he is in dire need of money for higher education of his son and daughter-in-law who are to pursue their specialized medical studies. THE plaintiff has, thus, sought the decree for the said amount towards arrears of rent and for eviction on the grounds of default and reasonable and bona fide requirement. In their written statement (Annex. 1), the defendants have, in the first place, taken the preliminary objections with the averments that the suit shop was taken on rent by their grand father late Shri Jethmal from the plaintiff's father late Dr. Govind Singh in the year 1956 at Rs. 30/- per month; that after grand father, their father late Shri Swaroop Chand continued as tenant of Dr. Govind Singh and continued to make payment of rent at Rs. 30/- per month. According to the defendants, for the rent having not been accepted from the month of April 1974, their father filed an application for depositing the same in the Court; however, during the pendency of such proceedings, the landlord Dr. Govind Singh expired on 07. 07. 1975 and notices were sent to his heirs including the plaintiff Mahendra Singh, his mother Smt. Sumitra, his brother Rajendra Singh, and his sisters but none appeared in the Court despite notice; and the Court ordered payment of the deposited amount of rent to the heirs of Dr. Govind Singh. The defendants have further stated that for Dr. Govind Singh and his heirs having not accepted the rent of the suit shop, their father got served a notice through lawyer to the plaintiff, his brother, and his mother to disclose the particulars of the bank account wherein the amount of rent from 01. 02. 1975 to 31. 12. 1976 could be deposited but such notice was not replied either. According to the defendants, until the year 1987, their father Swaroop Chand continued as tenant in the suit shop and they were carrying on business with him; and after demise of their father Swaroop Chand, the relationship of landlord and tenant got established between the heirs of Dr. Govind Singh and the defendants. The defendants have suggested that the suit is liable to be dismissed for the plaintiff having concealed all the material facts and having not impleaded Smt. Sumitra and Rajendra, the heirs of Dr. Govind Singh, as parties. The defendants have also averred that the plaintiff has not obtained any Succession Certificate as being the sole owner of the suit property nor sent any information about his ownership to them. The defendants have further averred that the plaintiff has wrongly filed this suit with false averments about her aunt Dr. Parvati being the erstwhile owner and about himself being the owner at present. After such preliminary submissions, the defendants have proceeded to state their paragraph-wise reply but with a prefatory note that the plaintiff has stated ownership of the suit shop in her aunt Dr. Parvati and has claimed himself to be the present owner but has not filed any document in relation to the ownership of Dr. Parvati and hence, until filing of such documents by the plaintiff regarding ownership of Dr. Parvati and regarding his ownership through her, they are filing the present reply but keeping their rights reserved to file detailed written statement in relation to the ownership of Dr. Parvati, and of the plaintiff through her. Thereafter, the defendants have proceeded to elaborate on the averments already taken in their preliminary submissions, have denied the averments of the plaintiff regarding his ownership of the suit shop, have denied existence of relationship of landlord and tenant between Dr. Parvati Gehlot and their father, have reiterated the assertion that their grand father, and thereafter their father, were the tenants of Dr. Govind Singh and that they have inherited the tenancy in the suit shop after working with their father till his life time, have asserted that they are continuing as tenants of the heirs of Dr. Govind Singh, and have denied having entered into any agreement with the plaintiff as alleged. The defendants have denied the allegation of default in payment of rent and so also the averments regarding reasonable and bona fide requirement of the plaintiff. It appears that in this suit, an application (Annex. 3) was moved by the defendants under Order VII Rule 11 of the Code of Civil Procedure (CPC) with the submissions that the plaintiff has failed to produce any document relating to the ownership of late Dr. Parvati Gehlot or regarding relationship of landlord and tenant between herself and the defendants and that the documents produced by the plaintiff do not show if he has become owner of the suit shop and is entitled to recover rent whereas the documents produced by the defendants make out that relationship of landlord and tenant had been between the father of the plaintiff and the father of the defendants. The defendants, thus, contended that the plaintiff having failed to disclose any cause of action for filing the suit for eviction and recovery of arrears of rent, the plaint was liable to be rejected. By its order dated 02. 08. 2005 (Annex. 4), the learned Trial Court rejected the application so moved by the defendants with the observations that the question about the plaintiff's ownership of the suit shop could only be decided after trial.
(3.) IT appears further that in this suit, the learned Trial Court proceeded to make provisional determination of rent by the order dated 06. 10. 2006 (Annex. 5) while noticing the assertion of the plaintiff-petitioner about the suit property having been bequeathed to him by Parvati Gehlot and the admission of the defendants of themselves being the tenants of the heirs of Dr. Govind Singh. The learned Trial Court observed that if not as successor of Parvati Gehlot, the plaintiff nevertheless remains the landlord as an heir of Dr. Govind Singh; and even if there were other co-owners of the property, the law remains settled that any one of the co-owners could maintain the suit for eviction. The said order and other aspects being not directly related to the prayer for amendment of the written statement need not be dilated upon any further in this order; but have been referred to indicate the nature of dispute, and the respective position of the parties. The learned Trial Court framed relevant issues for determination of the questions involved in the case on 06. 10. 2006; and issue No. 1 has been framed on the fundamental question as to whether the plaintiff is the landlord and the defendants are the tenants and there exists the relationship of landlord and tenant between the parties? After framing of issues, on the date fixed for evidence, i. e. , 24. 11. 2006, the plaintiff-petitioner moved an application (Annex. 7) under Order XII Rule 6 CPC with a request to the Trial Court to decide the suit immediately on the basis of the so- called admissions of the defendants on denial of title of the plaintiff-landlord and submitted that the defendants have emphatically denied his title and reiterated such denial even at the time of provisional determination of rent. The defendants filed a reply (Annex. 8) to the said application with the submissions, inter alia, that the plaintiff has filed the suit stating himself to be the owner on the basis of a Will of late Dr. Parvati and they have only denied the ownership claim of the plaintiff on the basis of the alleged Will; that specific expression in that regard has not appeared in paragraphs 1 to 4 of the written statement for typographical error but they have filed an application for amendment of the written statement. The defendants maintained that they had only denied the claim of the plaintiff on the basis of the Will of late Dr. Parvati Gehlot and that alone had been their intention. ;