Dinesh Maheshwari, J. - (1.) THESE two writ petitions have been preferred against different orders dated 10.08.2005 and 09.11.2005 as passed by the Additional District Judge No. 2, Bikaner in the same appeal (Civil Appeal No. 31/2005) rejecting the applications moved by the appellants -petitioners for amendment of pleading and for productions of documents. Arising out of the same appeal and involving inter -related and rather akin issues, these petitions have been heard together and are taken up for disposal by this common order.
(2.) IN brief, the aspects relevant for the present purpose are that the appeal aforesaid has been preferred against the judgment and decree dated 29.01.2004 as passed by the Civil Judge (Junior Division), Nokha in the civil suit (CO No. 24/1992) that was filed by the plaintiff -respondent No. 2 Bherudan for perpetual and mandatory injunction wherein The defendants Nos.1 and 2 filed a joint written statement and, while denying the plaint averments, alleged, inter alia, that the defendant No. 2 was not the owner of the said business of Jain Misthan Bhandar or of the disputed factory. The allegations relating to nuisance and pollution were denied and the defendants did take the pleadings that the defendant No. 1 was owner of the premises in question but had given the same on rent and was not related with the business in dispute; that the defendant No. 2 was not the owner of the business in question or of the said manufacturing process; that Nathmal son of Bhikham Chand Jain (the present petitioner No. 1) was the owner of the business that was carried in the name of M/s. Jain Misthan Bhandar; and that that the actual owner of business in question had not been impleaded a party to the suit despite specific objection of the defendants. It was also alleged by the defendants that the business in question was going on for about ten years and suddenly the flood of complaints had come up for otherwise intentions and, according to the defendants, the genesis of It is borne out from the material placed on record that before filing of the written statement, the defendants Nos.1 and 2 did move an application in the suit under Order VII Rule 11 of the Code of Civil Procedure (CPC) and it was argued that the plaintiff had no cause of action against them. However, the said application was disallowed by the learned Trial Court by its order dated 29.05.1995. It appears further that issues in the case were framed on 07.05.1997 and thereafter, while the matter was going on for the plaintiff's evidence, the defendant No. 1 Parsi Devi expired and, on an application moved by the plaintiff on 03.07.2000, the legal representatives of the deceased defendant No. 1 Parsi Devi, including the present petitioner No. 1 Nathmal, were substituted as defendants by the order dated 02.04.2002. It is noticed that by the said order dated 02.04.2002, the plaintiff was also directed to submit amended cause title, process fees, and summonses for the defendants; and the matter was adjourned to 17.04.2002. The plaintiff did file amended cause title on 17.04.2002 and then, the matter was adjourned, purportedly for the purpose of filing of 'amended reply title ', as stated in the order -sheets dated 27.05.2002, 02.08.2002 and 02.09.2002.
(3.) THE decision on the issues relating on the complaint of the plaintiff about nuisance and pollution relates to the merits of the case and is not directly relevant for the present purpose. However, relevant it is to notice that issue No. 3 had been framed in this case on the question as to whether the defendant No. 2 was carrying on business in the name and style of M/s. Jain Misthan Bhandar and issue No. 13 on the question if no effective order could be passed in the case for the plaintiff having not impleaded the owner of the business These two issues, i.e., issues Nos.3 and 13, were taken up by the learned Trial Court for consideration together and, with reference to the evidence available on record and with the observations that the defendants have failed to produce positive evidence, the learned Court did not accept the case of the defendants that Nathmal was the owner of disputed business and observed that after the death of Parsi Devi, Nathmal was indeed joined as defendant in the suit. The learned Trial Court held that the plaintiff has been able to establish the facts as involved in issue No. 3 and decided the same in his favour and further held that the defendants have failed to establish the facts involved in issue No. 13 and decided the same against them.;