- (1.) The present petition has been preferred under Article 227 of the Constitution of India against an order passed by the learned Additional Munsif, 1st, Dhanbad in Title Suit No. 45 of 2005 whereby an application preferred by the respondent (original plaintiff) under Order XIV Rule 5 of the Code of Civil Procedure (amendment in the issues) was allowed and application preferred by the present petitioner (original defendant) under Order XIV Rule 5 of the Code of Civil Procedure was not considered and application preferred by the present petitioner under Order XVIII Rule 3A of the Code of Civil Procedure has also not been considered and therefore, present petition has been preferred by the original defendant.
(2.) I have heard learned Counsel for the petitioner and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition on the following facts and reasons: (i) It appears that the present respondent (original plaintiff) had instituted a Title Suit No. 45 of 2005 in the form of Eviction Suit on several grounds. (ii) it also appears that issues were framed under the provision of the Code of Civil Procedure by the trial court and therefore, both the parties i.e. plaintiffs as well as the defendants preferred an application under Order XIV Rule 5 of the Code of Civil Procedure. Out of these two applications, one which was preferred by the plaintiff was allowed and one which was preferred by the present petitioner (original defendant) was not considered. It appears that looking to the application preferred by the original plaintiff, which is at Annexure-3 to the memo of the petition, the issues suggested by the original plaintiff, which reads as under: (i) Whether the defendant damaged the tenanted premises due to his negligence (ii) Whether the defendant is liable for eviction as claimed by this plaintiff Thus, the aforesaid two issues were suggested by the original plaintiff. Out of these two, the first one was accepted by the trial court and looking to the facts and averments made in the plaint and the written statement, I see no reason to alter the order passed by the trial court. Correctly the aforesaid issue No. 1 has been allowed to be amended. Looking to the factual aspects of the matter, if the defendant has damaged the tenanted property, this issue will be necessary for arriving at correct decision of the disputes between the parties. No error has been committed by the trial court in allowing the application preferred by the original plaintiff, so far as the aforesaid issues No. 1 is concerned. (iii) It also appears that the original defendant had also preferred an application for suggesting amendment in the issues. The issues suggested by the present petitioner (original defendant), which reads as under: (i) Whether this defendant was inducted as a tenant and put in possession of the suit premises by the plaintiff (ii) Whether Jagdish Prasad Kabra is the son of Late Prayag Chandra Somani or not (iv) Looking to the aforesaid two issues, it appeal's that there is no averment in the written statement filed by the present petitioner. Once there is no factual background in the written statement, the aforesaid issues cannot be framed by the trial court. In these set of circumstances, the application preferred by the present petitioner (original defendant) cannot be allowed by the trial court. The present petitioner, who is original defendant, is not seeking amendment in the written statement. Thus, without putting an averments and allegations in the written statement, the aforesaid two issues suggested by the original defendant cannot be allowed to be framed by the trial court. (v) So far as the application preferred by the present petitioner under Order XVIII Rule 3A of the Code of Civil Procedure is concerned, it is absolutely baseless because it is submitted by the Learned Counsel for the petitioner that original plaintiff has not yet been examined himself. In this background, there is no question of granting any permission to the original plaintiff whatsoever arises under Order XVIII Rule 3A of the Code of Civil Procedure. It appears that plaintiff has not examined himself first, but, some other witnesses have been examined and therefore, this application has been tendered in advance by the petitioner (original defendant) so that whenever the original plaintiff prefers an application under Order XVIII Rule 3A, it may not be allowed or granted by the trial court. Thus, in anticipation of the plaintiff's application under Order XVIII Rule 3A of the Code of Civil Procedure, in advance an objection had been filed by the original defendant and therefore, rightly no question whatsoever arises to consider defendant's objection first. In these set of circumstances, no error has been committed by the trial court in passing the impugned order dated 25th March, 2009 at Anexure-8 to the memo of the present petition and therefore, I see no reason to alter any of the observations made by the trial court in the impugned order and I am not inclined to take any deviation in the conclusion arrived at by the trial court.
(3.) As a cumulative effect of the aforesaid facts and reasons, there is no substance in this writ petition. Accordingly, the same is dismissed.;