The admissibility of a family settlement as evidence in an eviction suit and the cautious exercise of the power given to the court under Order 6, Rule 16, CPC to strike out any matter in a pleading that may tend to embarrass a fair trial of the suit.

Arun Madan, J.-This revision petition arises out of an order dated 24-9-1998 of the Additional Civil Judge (Junior Division) Jaipur (East) in Civil Suit No. 64/96, whereby he has dismissed application under Order 6, Rule 16, CPC filed by the petitioner (defendant).

2. The facts leading to this petition, briefly stated, are that the plaintiffs (landlords) (respondent Nos. 1 and 2) filed a civil suit for eviction against the defendant No. 1 (present petitioner-tenant) arraying Smt. Savitri Devi w/o Han Shankar (original landlord) as defendant No: 2 (respondent No. 3 herein) pleading therein inter alia that Han Shankar Shrimali (father of the plaintiffs) let out shop in dispute to the petitioner (defendant No. 1 Tenant) at Rs. 110/-per month, and after death of Han Shankar Shrimali, the rent has been paid to Ram Shankar (plaintiff No. 2) because the suit shops had fallen in the share of the plaintiff No. 1 as a result of family settlement dated 27-11-1995 as pleaded in paras 1 and 2 of the plaint and the eviction has been sought by plaintiff No. 1 (Om Shankar) on the grounds of personal bona fide necessity and for causing damage and material alterations besides nuisance to the suit shop by the present petitioner tenant. The suit was contested by the petitioner-tenant. On the pleadings; of the parties, issues were framed. During trial, an application was filed on 28-4-1997 to the effect that the alleged family settlement being not registered whereas it is compulsorily required to be registered, is not admissible in evidence and so cannot be admitted in evidence and this application was accepted by the trial Court under order dated 3-12-1997 holding that family settlement being not registered, is inadmissible and thereby it cannot be exhibited. It is the case of the petitioner-tenant that this order has become final as to his knowledge; it has not been challenged in revision or appeal. Thereupon, claiming that pleadings averred in the plaint as to the partition have become meaningless, the petitioner to tenant submitted an application under Order 6, Rule 16, CPC seeking deletion and striking off paras 2 to 5, 9 to 11 of the plaint itself . However, this application upon having been contested by the plaintiffs was dismissed by the trial Court under order dated 24-9-1998. Hence, this revision petition.

3. Thelearned Counsel for the petitioner-tenant contended that the eviction has been sought on the strength of family settlement which since being not registered has been held by the trial Court, itself , to be inadmissible in evidence and such settlement has not been allowed to be exhibited, in as much as, whatever the pleading averred in the plaint by the plaintiffs on the strength of such inadmissible evidence like family settlement, has become unnecessary, frivolous and vexatious pleadings and, therefore, such pleadings averred in paras 2 to 5 and 9 to ii in the plaint deserve to be struck off and deleted, and refusal to do so under Order 6, Rule 16, CPC by the trial Court has resulted in miscarriage of justice causing damages to the case of the tenant.

4. Per contra, learned Counsel for the respondents (plaintiffs) contended that the application has been filed only with a view to delay the proceedings and to harass the plaintiffs, inasmuch as it has been done so at a belated stage when issues have already been framed since long and the trial is at the stage where evidence of the plaintiffs is going on and during recording statements of their some of witnesses, documents have been examined. In these circumstances, according to the learned Counsel, the learned trial Court has rightly held that at the belated stage where the petitioners has cross examined plaintiffs witnesses, permission for striking out same of the pleadings of the plaintiff cannot be given merely on the strength of the document family settlement being allegedly not registered.

5. I have heard the learned Counsel for the parties at length and perused the im