Advocates:
['NARENDRA THANVI', '', 'ASHOK THANVI', 'AA BHANSALI', '', 'HARISH PUROHIT', 'OM PRAKASH BOOB', 'NAVDEEP DADHICH']

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 623/2017

1.

Dinesh Parmar S/o Mulchand, B-45, Shastri Nagar,

Jodhpur.

2.

Lalit Parmar S/o Mulchand, R/o 45, Shastri Nagar,

Jodhpur. Both Are Through Power Of Attorney Holder

Ayub Khan S/o Ahmed Khan.

3.

Ayub Khan S/o Ahmed Khan, Plot No. 383, 3-C, Road,

Sardarpura, Jodhpur.

----Petitioners/Defendants

Versus

1.

Smt. Usha Sharma W/o Late Shri Taresh Sharma, R/o Plot

No. 383, 3Rd C Road, Sardarpura, Jodhpur.

2.

Rajkumar Vyas S/o Shri Gordhan Vyas, R/o A-345,

Shastri Nagar, Tehsil And District Jodhpur.

----Respondents/Plaintiffs

For Petitioner(s)

:

Mr. Narendra Thanvi on VC.

For Respondent(s)

:

Mr. O.P. Boob on VC.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 02/02/2022

Pronounced on 05/02/2022

1.

In the wake of instant surge in COVID – 19 cases and spread

of its highly infectious Omicron variant, lawyers have been advised

to refrain from coming to Courts.

2.

This writ petition has been preferred claiming the following

reliefs:

“1. This writ petition may kindly be allowed and the

impugned order dated 19.09.2016 (Annexure-7) may

kindly be quashed and set aside and the application

(2 of 15)

[CW-623/2017]

filed under Order 6 Rule 17 of CPC may kindly be

dismissed.

2. That the order dated 06.02.2015 (Annexure-4) may

kindly be quashed and set aside and the application

filed under Order 22 Rule 10 of CPC may kindly be

dismissed.”

3.

As the pleaded facts and the record of the case would reveal,

the bone of contention in the present case is a shop, which is a

part of Plot No.383 (admeasuring 100.61 square metres), 3^rd C

Road, Sardarpura, Jodhpur, in regard whereto, original

plaintiff/respondent No.1-Smt. Usha Sharma w/o Late Shri Taresh

Sharma has instituted a suit under Order 7 Rule 1 of the Code of

Civil Procedure (for short, ‘CPC’) before the learned court below,

seeking declaration, mandatory and permanent injunction as well

as recovery of mesne profits.

3.1

The learned court below found that the possession of the

shop premises in question were transferred to the present

petitioners/defendants through an agreement to sale executed by

Late Shri Taresh Sharma, but at the time of execution of such

agreement, the said shop premises were owned by the original

plaintiff/respondent No. 1, wife of Late Shri Taresh Sharma.

However, the stipulations as to the payment of consideration in

the agreement were not fulfilled by the petitioners/defendants,

and hence, the original plaintiff/respondent No. 1, after repeated

demands for payment of rent and the default in making such

payment on the part of the petitioners/defendants, sought to evict

the petitioners/defendants from the shop premises in question.

(3 of 15)

[CW-623/2017]

4.

Learned counsel for the petitioners submits that an

application was filed by the respondent No.2-Rajkumar Vyas,

under Order 22 Rule 10 CPC seeking to implead him as plaintiff in

place of the original plaintiff-Smt. Usha Sharma, on count of the

fact that he is the person in whom the interest of the shop

premises in question has devolved; the said application was

allowed by the learned court below, vide order dated 06.02.2015,

to the extent as indicated therein, while holding that Shri Vyas,

had acquired an interest in the shop premises in question through

a registered sale deed.

4.1

Learned counsel for the petitioners further submits that the

learned Court below, vide order dated 19.09.2016, accepted the

application filed by the original plaintiff/respondent No. 1 under

Order 6 Rule 17 CPC, with the finding that an amendment to the

pleadings would not cause prejudice to the present

petitioners/defendants.

5.

Learned counsel for the petitioners/defendants however,

vehemently submitted that the nature of the suit pending before

the learned court below would change, from a suit filed for

de