Mohd. Shafique Siddhiquei v. Abdul Saleem

PETITIONER DEFENDANT Mohd. Shafique Siddhiquei Mohd. Rafique, aged about Chowkl, R/o Khagsar Drycleaners, RaiRur Raipur (C.G.) Rahmaniya S/o Late 64 years, Behind r, Dsitrict VERSUS RESPONDENTS PLAINTIFFS :1. Abdul Saleem, S/o Late Rahim, 1-laji Abdul ' ^s^a^ y^^^- .'..1 ...<..—"" ^••^

#9. (Now Dead) Smt. Nafisa Begam, W/o Saleem, aged about 52 years Late Abdul Abdul Fahim, S/o Late aged about 35 years, Abdul Saleem, Mohd. Kalim, S/o Late Abdjul aged about 26 years, Through Attorney Holder Abdul Fahim Abdul Saleem, Saleem, Power of son of Mohd. Nayeem, Saleem, aged about 24 years S/o Late Mohd, Shamim, Saleem, aged about 22 year$ S/o Late Abdul Abdul Mohd. Jafar, S/o Late aged about 20 years, Abdul Saleem, All R/o Rahmaniya Chowk, Behind Khagsar Drycleaners, RaiRur, Dsitrict Raipur (C.G.) Shagira Begam, W/o Mohd.i Kadir, D/o Late Abdul Saleemm, aged about 32 years, R/o Juna Bilaspdir, District Bilspur (C.G.) Faimida Begam, W/o Shekh; Firoz, D/o Abdul Saleem, aged aobuti 30 years, R/o Sector - 10, Bhilai, Dlstrict Durg (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTJTUTION OF INDIA HIOH COURT OF CHHATTISGARH. BJLASPUR SINOLE 8ENCH : HON'BLE SHRI PRASHANT KUtVIAR NISHRA. J. W.P. (2271 No. 590 of 2012 PETITIONER Mohd. Shafique SJddhique. RESPONDENTS Abdul Saleem and others. Versus Shri A.K. Prasad, counset torthe petjtioner. ORALORDER (31/08/2012) The triat Court has rejected defendant's prayer for amendment in the written statement under Order 6 Rute 17 of C P,C. Plalntiff has ffled a aust for eviction of the defendante under the provisions of Chhattisgarh ^commodation Control Act, 1961. tn para 4 of the written stateiiient the petitioner has raised a plea that tenanted premises having a larger area, the rear part of same was vacant, therefore, he obtained permission frotn the previaus laodSord to raise construction on the said vacant part. By the subject applteatfon for aniendment, the defendant sought to amend para 4 of the written statement to plead that tenancy agreement was executed between the defendant and erBtwhite owner/landlord Shivdutt Tiwari on 20/07/1970 pursuant to which defendant was oarrying on business of Timber and later on he started trading in scrap He ateiO sought to identtfy the said portion in the map attached with the written stetement, Prayer for amendment has been rejected on the ground that the subjwt (2) matter of amendment was withJn the knowledge of the defendant from the very beginning and the suit has reached to the stage of pjaintiffs evidence, afRdavit under Order 18 Rule 4 have already been exchanged and further for the reason that the proposed amendment sha!< change the natyre of defense, Upon perusal of the plaint and written statement, (3) considered opinjon that leamed trial Court has not conimitted any jltegality m rejecting the prayer for amendment. In the matter of VMyabai sn(S o^iers Vs. Padmiaffta aivS another reported <n (2009) 2 SCC 409 Hon'bte Supreme Court has held thus in para 11 and 19 - this Court is of the "11. From the order passed by the tearned triai Judge, ft te evident that the respondents had not been able to Tuffil the sald therefore, which arises for precondition. The question, consideration te as to whether the triat had commenced or not. tn our opinion, it did. The date on which the tesues are frannied is the date of ftrst hearing, Provislons of the Code of CMt \ •^.J/./ 'i^^^T -1 ^. Procedure envisage taWng of ^rious steps at different stages ofthe proceeding. Rling ofan affidavit in jjeu of examination-jn- chief of the witness, "commencement of proceeding". in our opinion, would amount

#19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parti^;. Only if such a condition is fuifJBed, the amendment is to be allowed. However, provi^o appended to OrderS Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdictton. The court's jurisdiction, in a case of this nature is timited. Thus, unte^s the jurisdictional fact, as envisaged therein, is found to be extettng, the court wilt have no j'urisdtetion at afl to aUow the amendment oftheplaint." Since the suit has atready been fixed Tor ptaintiffs' evidence and the nature (4) of arnendment sought for fe also not material for non"€iuitjng the pialntiff the amendmenl does not appear to be necessary for adjudication of the suit for evictfon ofthe defendants, There is no substance in this writ petitlon whfoh fai!s and <s hereby (5) dismissed. Sd/- Prashant Kumar Mishra Judge N < ^