Writ Petition under Article 226 and 227 of the Constitution of India

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav S/o Shri Bakshi Vishambhar Dayal Aged About     years, R/o Lal Bhawan, Chuara Rasta, Jaipur.

…Defendant-Petitioner.

Versus.

1-     Additional District Judge, Fast Tract No.7, Jaipur City, Jaipur.

…Performa-  Respondent.

 

2-     Shri Verdhaman Sthanakwasi Jain Shawak Jaipur Sangh, Lal Bhawan, Chuara Rasta, Jaipur, A registered society through its President Smt. Manjula Bumb.

…Plaintiff- Respondent.

 

S. B. CIVIL WRIT PETITION UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA

AND

IN THE MATTER OF ORDER DATED 24/2/2011 PASSED BY SHRI DINESH GUPTA (RHJS) ADDITIONAL DISTRICT JUDGE (FAST TRACK) NO. 7, JAIPUR CITY, JAIPUR IN CIVIL SUIT NO. 178/2005 TITLED AS SHRI VERDHMAN STHANAKWASI VS. PERMESHWAR DAYAL BY WHICH THE APPLICATION UNDER ORDER 6 RULE 17 CPC FILED BY THE DEFENDANT-PETITIONER HAS BEEN DISMISSED.

To,

Hon'ble the Chief Justice and his other companion Judges of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur.

MAY IT PLEASE YOUR LORDSHIPS:

 

The humble petitioner named above, most respectfully, submits as under :-

1-     That the respondent society filed a suit for eviction on the ground of personal and bona fide need and for standard rent with respect to the suit property fully described in Para No. 2 of the plaint. A photo copy of the plaint is enclosed herewith and marked as Annexure-1.

 2-    That the defendant filed written statement and denied all the allegation made in the plaint.  A photo copy of the written statement is enclosed herewith and marked as Annexure-2.

3-     That during the course of trial the petitioner moved an application under order 6 rule 17 CPC of amendment in the written statement for adding some subsequent events. A photo copy of the application is enclosed herewith and marked as Annexure-3.

4-     That the respondent did not file any reply to the application of plaintiff-petitioner under order 6 rule 17 CPC.

5-     That after hearing arguments, the learned trial court dismissed the application under order 6 rule 17 CPC  wide its impugned order dated 24/2/2011. A certified copy of the impugned order dated 24/2/2011 is being enclosed herewith and marked as Annexure-4.

 

Hence, feeling aggrieved by the impugned order passed by the learned trial court, the humble petitioner submits this writ petition before the Hon’ble Court, inter-alia, on the following grounds, without prejudice to each other:-

 

G R O U N D S:

 

A-     That the order passed by the learned trial court is contrary to the facts as well as the documents available on record and contrary to provisions of order 6 Rule 17 CPC. Hence, the same is liable to be quashed and set aside.

B-     That the learned trial court has erred in not appreciating  that the amendment as sought for by the humble petitioner is necessary to decide the real question in controversy in the suit As such the trial court has committed a jurisdictional error. The amendment sought in the application deserve to be allowed.

C-     That the learned trial court failed to appreciate that the amendment sought for in the application are admitted facts. the details of the suit which have already decided between plaintiff and other tenant is admitted fact, further no reply was filed by the plaintiff- respondent. No prejudice was going to be caused to the respondent if the amendment is allowed.

D-     That the learned trial court has further erred in not considering this aspect of the matter that the amendment as sought in the application was wholly justified and necessary and the same could not have been declined as the suit is for eviction on the ground of bonafide necessity, where as the plaintiff has compromised in the other suit for evection which was also based on the similar grounds as bonafide necessity. Hence the said amendment is deserve to be allowed. The fact regarding entering into compromise by the plaintiff society is a material fact which ought to have been taken on record by the court. The court has committed a jurisdictional error.

E-     That the learned trial court has also seriously erred in not considering that the amendments sought for in the suit were not in any manner going to change the nature of the suit and in order to meet the ends of justice as well as to avoid any multiplicity of proceeding, amendments as sought in the application by the petitioner ought to have been allowed.

F-     That the procedure are meant to advance the cause of justice, not to hamper it. The learned trial court has decided the application in a very cursory manner. The finding of the trial court that the suit compromised relates to Bapu Bazar shop hence such compromise has no nexus with the present case. It is humbly submitted that merits of the amendment can not be judged while allowing the application itself. further the subsequent event clearly shows that the landlord society has no need of the present shop but only to pressurize the tenants suit of eviction has been filed. Therefore amendment application moved by the petitioner –plaintiff may be allowed.

G-     That the other grounds shall be urged at the time of arguments.

 

6-     That the petitioner has not filed any such similar writ petition earlier either before this Hon'ble Court or before Hon'ble the Supreme Court of India.

7-     That the petitioner has got no other efficacious, alternative or speedy remedy available to him except to approach this Hon'ble Court by way of filing the present writ petition under Article 226 and 227 of the Constitution of India.

8-     PRAYERS:-

It is, therefore, prayed that this Hon'ble Court may very graciously be pleased to accept and allow this writ petition, call for the entire record of the learned court below relating to the present suit and after examining the same, the Humble Court by issuing an appropriate order or direction may further be pleased:-

(i)          to quash and set aside the impugned order dated 24/2/2011 (Anx.4), passed by the learned Additional District Judge, Fast Tract No.7, Jaipur City Jaipur in Civil Suit No. 178/2005 Titled As Shri Verdhman Sthanakwasi Vs. Permeshwar Dayal;

(ii)         to allow the application filed by the petitioner under order 6 Rule 17 CPC and to allow the petitioners to make amendments in the suit as sought in the application;

(iii)    Any other order or direction which this Hon'ble Court may deem just and proper may also kindly be passed in the facts and circumstances of the case with costs.

JAIPUR

DATED:

HUMBLE PETITIONER

THROUGH COUNSEL:

 

 

B.L.AGARWAL/AMIT GUPTA

ADVOCATE.

Notes:-

1-That no such similar writ petition has been filed before this Hon'ble Court earlier.

2-That this is SB Civil Writ Petition as no vires of any Act or Rule is under challenge.

3-That the pf, notices and extra sets shall be filed within time.

4-That it has not been typed by any staff member of this Hon'ble Court.

5-That since pie papers are not readily available, hence stout papers have been used.

 

 

Counsel for petitioner

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav

…Petitioner.

Versus.

 

Additional District Judge, (Fast Track) No.7, Jaipur and anr.

…Respondents.

 

 

Affidavit in support of the writ petition.

 

I, Parmeshwar Dayal Bhargav S/o Shri Bakshi Vishambhar Dayal Aged About     years, R/o Lal Bhawan, Chuara Rasta, Jaipur, do hereby take oath and state as under :-

 

1-     That I am petitioner in the aforesaid writ petition and, as such, am fully conversant with the facts and circumstances of the case.

 

2-     That the annexed writ petition has been drafted and prepared by my counsel under my instructions and I have read over the same.

 

3-     That the contents of paras No. 1 to 8 and sub paras A to G of the writ petition are true and correct to my personal knowledge.

 

JAIPUR

DATED:

 

 

DEPONENT.

VERIFICATION

I, the abovenamed deponent, do hereby verify on oath that the contents of Paras No. 1 to 3 of my above affidavit are true and correct to my personal knowledge. Nothing material has been concealed therefrom and no part thereof is false or incorrect.

So help me God.

JAIPUR

DATED:

DEPONENT.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

S.B. CIVIL STAY APPLICATION NO.________/2011

IN

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav S/o Shri Bakshi Vishambhar Dayal Aged About     years, R/o Lal Bhawan, Chuara Rasta, Jaipur.

…Defendent-Petitioner.

Versus.

1-     Additional District Judge, Fast Tract No.7, Jaipur City, Jaipur.

…Performa-  Respondent.

2-     Shri Verdhaman Sthanakwasi Jain Shawak Jaipur Sangh, Lal Bhawan, Chuara Rasta, Jaipur, A registered society through its President Smt. Manjula Bumb.

…Plaintiff- Respondent.

STAY APPLICATION UNDER SECTION 151 OF CIVIL PROCEDURE CODE READ WITH ARTICLE 226 OF THE CONSTITUTION OF INDIA

To,

Hon'ble the Chief Justice and his other companion Judges of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur.

MAY IT PLEASE YOUR LORDSHIPS:

The humble applicant-petitioners, named above, most-respectfully submit as under:-

1.     That the humble applicant this day has filed writ petition before this Hon’ble Court in which they have every hope to succeed.

2-     That the averments made and the grounds raised in the writ petition may kindly be treated to be the part and parcel of the present stay application in order to avoid the repetition of the same.

3-     That from the perusal of the averments made and the grounds raised in the writ petition, it would go to show that the learned trial court has committed an illegality with material irregularity in passing the impugned order and, therefore, the same is liable to be quashed and set aside.

4-     That if the further proceedings in the suit  are not stayed by the Hon’ble Court during the pendency of the writ petition, the humble applicant will bear irreparable injury and the whole purpose of filing of the writ petition will be frustrated.

5-     That the balance of convenience, prima-facie case and irreparable injury factors also lie in favour of the humble applicants-petitioners.

It is, therefore, prayed that this Hon’ble Court may very graciously be pleased to accept and allow this stay application and by way of an interim order, the Hon’ble Court may further be pleased to stay the further proceedings in Civil Suit No. 178/2005 Titled As Shri Verdhman Sthanakwasi Vs. Permeshwar Dayal pending before Additional District Judge, Fast Tract No.7, Jaipur City Jaipur.

        Any other order or direction, which this Hon’ble Court may deem just and proper may also kindly be pleased in favour of the applicant with costs.

Jaipur                                                   ­HUMBLE APPLICANT

                                                          THROUGH  COUNSEL:

Dated

 

 

BIHARI LAL AGARWAL/AMIT GUPTA,

SURENDRA BUDANIA, MANISH GUPTA

ADVOCATES.

NOTES:-

1.     ­That no such similar stay application has been filed earlier before this Hon’ble Court.

2.     That it has not been typed by any staff member of this Hon’ble Court.

3.     That since the pie papers are not readily available, hence stout papers have been used.

 

Counsel for the Applicant.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav

…Petitioner.

Versus.

 

Additional District Judge, (Fast Track) No.7, Jaipur and anr.

…Respondents.

 

 

Affidavit in support of the Stay

 

I, Parmeshwar Dayal Bhargav S/o Shri Bakshi Vishambhar Dayal Aged About     years, R/o Lal Bhawan, Chuara Rasta, Jaipur, do hereby take oath and state as under :-

 

1-     That I am petitioner in the aforesaid writ petition and, as such, am fully conversant with the facts and circumstances of the case.

 

2-     That the annexed stay application has been drafted and prepared by my counsel under my instructions and I have read over the same.

3-     That the contents of paras No. 1 to 5 of the stay application are true and correct to my personal knowledge.

 

JAIPUR

DATED:

 

 

DEPONENT.

VERIFICATION

I, the abovenamed deponent, do hereby verify on oath that the contents of Paras No. 1 to 3 of my above affidavit are true and correct to my personal knowledge. Nothing material has been concealed therefrom and no part thereof is false or incorrect.

So help me God.

JAIPUR

DATED:

DEPONENT.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav

…Petitioner.

Versus.

 

Additional District Judge, (Fast Track) No.7, Jaipur and anr.

…Respondents.

 

 

Affidavit in support of the Documents

 

I, Parmeshwar Dayal Bhargav S/o Shri Bakshi Vishambhar Dayal Aged About     years, R/o Lal Bhawan, Chuara Rasta, Jaipur, do hereby take oath and state as under :-

 

1-     That I am petitioner in the aforesaid writ petition and, as such, am fully conversant with the facts and circumstances of the case.

 

2-     That Annexure-1 to 3  are true and correct typed/photo stat copy of their original and Annexure- 4 is the certified copy.

 

JAIPUR

DATED:

 

 

DEPONENT.

VERIFICATION

I, the abovenamed deponent, do hereby verify on oath that the contents of Paras No. 1 to 3 of my above affidavit are true and correct to my personal knowledge. Nothing material has been concealed therefrom and no part thereof is false or incorrect.

So help me God.

JAIPUR

DATED:

DEPONENT.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav

…Petitioner.

Versus.

 

Additional District Judge, (Fast Track) No.7, Jaipur and anr.

                                                                     …Respondents.

 

Brief Synopsis

 

-       That the respondent society filed a suit for eviction on the ground of personal and bona fide need and for standard rent with respect to the suit property fully described in Para No. 2 of the plaint.

-       The defendant filed written statement and denied all the allegation made in the plaint.  

-       That during the course of trial the petitioner moved an application under order 6 rule 17 CPC of amendment in the written statement for adding some subsequent events.

-       That the respondent did not file any reply to the application of plaintiff-petitioner under order 6 rule 17 CPC.

-       That after hearing arguments, the learned trial court dismissed the application under order 6 rule 17 CPC  wide its impugned order dated 24/2/2011.

-       Hence, the present writ petition.   

 

Counsel for The petitioner.

 

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JAIPUR BENCH, JAIPUR.

 

S.B. CIVIL WRIT PETITION NO.______________/2011

 

Parmeshwar Dayal Bhargav

…Petitioner.

Versus.

 

Additional District Judge, (Fast Track) No.7, Jaipur and Anr.

…Respondents.

 

 

I N D E X.

 

S.NO.	PARTICULARS	PAGE NO.
1.	Writ petition
2.	Affidavit in support of writ
3.	Stay Application
4.	Affidavit in Support of Stay
5.	DOCUMENTS:
Anx.1	Copy Of the Plaint
Anx.2	copy of the written statement
Anx.3	copy of the application under O 6 R 17 CPC
Anx.4	Certified Copy Of The Impugned Order Dated 24/2/2011 Passed By The Learned Trial Court.
6.	Affidavit in Support of Documents

 

JAIPUR

DATED:

 

COUNSEL FOR PETITIONER.