SHANTI LAL BAGRECHA Vs. MOTI LAL

JUDGEMENT

(1.) BY way of this writ petition, the defendant -petitioner facing a suit for eviction and recovery of mesne profits (Civil Original Suit No. 53/2004), seeks to challenge the order dated 18.02.2008 passed by the Civil Judge (Junior Division), Mavli, District Udaipur allowing the prayer for amendment of the plaint as made by the plaintiff -respondent for correction of the date of commencement of tenancy from '14.12.1998' to '14.12.1978'

(2.) ASSAILING the order aforesaid, learned Counsel for the defendant -petitioner has strenuously contended that the learned Trial Court has acted illegally in allowing the prayer for amendment of the plaint after substantial progress of the trial where the plaintiff has already concluded his evidence and three witnesses of the defendant have also been examined. Learned Counsel submitted with reference to the decision of this Court in the case of Karam Chand v. Ashok Kumar, 2000 (4) RLW 58 that the amendment defeating the accrued legal rights of the petitioner could not have been allowed; and further submitted with reference to the decision of the Hon'ble Supreme Court in the case of Ajendraprasadji N. Pande and Anr. v. Swami Keshavprakeshdasji N. and Ors., 2007 (3) RLW 1790 that after commencement of trial, such amendment of the plaint could not have been allowed when the plaintiff has failed to show that despite due diligence the matter could not be raised earlier. Learned Counsel submitted that the plaintiff has taken specific pleadings in his plaint duly verified and supported by affidavit that the shop in question was let on 14.12.1998 and such specific pleading cannot now be altered by way of amendment particularly when the parties have gone to trial with reference to such pleadings of the plaintiff and the petitioner would suffer prejudice if the amendment were allowed at the fag end of the trial.

(3.) THE deceased plaintiff Motilal (now substituted by his son Ugamlal - respondent No. 1 herein) while seeking a decree for eviction and mesne profits against the present petitioner Shantilal did take the pleadings in the plaint (Annex.1) that the premises in question were let to the defendant -petitioner for 11 months after an oral agreement on '14.12.98' at the rent of Rs. 113/ - per month that was now payable at Rs. 261/ - per month. The plaintiff stated that the rent up to the month of April 2004 had been paid and alleged that by serving a notice dated 14.04.2004, the tenancy was terminated with effect from 14.05.2004 or any date after one month from the date of notice that the defendant would consider to be the last date of the month of tenancy. The defendant -petitioner in his written statement (Annex.2) has not denied the relationship of landlord and tenant but has replied in relation to the averments as taken in paragraph 2 of the plaint that the suit shop was not taken on rent on 14.12.1998 but was taken in the year 1980 and a rent note was also executed. The petitioner has also questioned the basis of the claim for rent at the rate of Rs. 261/ - per month; and has averred that in spite of notice, no other record pertaining to tenancy was shown to him except a document of the year 1980. The petitioner has denied the averments regarding termination of tenancy and has also stated that there had been exchange of certain propositions between the parties for the plaintiff selling the shop in question to the him but the deal having not materialized.