S.B. CWP No. 21335/2013

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH, JAIPUR

O R D E R

S.B. Civil Writ Petition No. 21335/2013

Kedar Nath v. Civil Judge (Jr. Division) Rajgarh, District Alwar & Anr.

Date of Order :   18^th April, 2014

HON'BLE MR. JUSTICE R.S. CHAUHAN

Mr. Mohit Gupta, for the petitioner.

Mr. Vikash Sharma, for the respondent.

The petitioner is aggrieved by the order dated

24.10.2013 passed by the Civil Judge (Jr. Division),

Rajgarh, District Alwar, whereby the learned Magistrate

has dismissed an application filed by the petitioner

under Order 6 Rule 16 CPC and has refused to stike off

certain paras mentioned in the plaint.

2.

The brief facts of the case are that the

respondent NO.2 as the plaintiff filed a suit for

eviction and possession against the petitioner-defendant

under the Rajasthan Premises (Control of Rent and

Eviction) Act, 1950 (henceforth, 'the Old Act', for

short) as well as under the Transfer of Property Act on

the ground of nuisance, bona fide necessity and

comparative hardship. It was stated in the suit that the

suit shop was rented to the petitioner on 1.12.1973 @ Rs.

68 per month. The respondent No.2 gave a legal notice to

the petitioner-defendant to vacate the shop in dispute.

But he refused to do so. It was also stated in the plaint

that if the court comes to the conclusion that after the

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enactment of the Rent Control Act, 2001, the old Act has

been repealed, then the suit of respondent No.2 be

treated as one under Section 111 of the Transfer of

Property Act. It was prayed that decree of eviction, and

in the alternative, a decree of possession may be granted

to the respondent. The petitioner-defendant filed his

written statement denying most the contents mentioned in

the plaint. The learned trial court framed as many as six

issues. Out of those six issues, three issues related to

bona fide necessity, nuisance and comparative hardship

and one regarding limitation and another regarding

dismissal of suit due to giving notice with false fact.

Meanwhile, an application under Order 14 Rule 5 CPC was

moved for deleting the issues No. 1 to 3. The learned

trial court vide order dated 15.2.2013 dismissed the the

application. Being aggrieved by the order dated

15.2.2013, the petitioner preferred a writ petition,

namely S.B. Civil Writ Petition No. 3387/2013 before this

Court. The said petition was allowed by order dated

1.8.2013. In view of the order dated 1.8.2013, the

learned trial court deleted the issues No. 1 to 3. After

deletion of issues, on 23.10.2013, the petitioner moved

an application under Order 6 Rule 16 CPC praying that

since the issues no. 1 to 3 have been deleted, as such,

pleading in the suit pertaining to issues no. 1 to 3 may

be struck off. By order dated 24.10.2013, the learned

trial court dismissed the said application. Hence, this

writ petition before this Court.

3.

The learned counsel for the petitioner has

vehemently contended that he is aggrieved by the

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observation made in the order dated 24.10.2013 that paras

dealing with the bona fide necessity, nuisance,

comparative hardship and alternative accommodation are

relevant to the suit. Therefore, the order needs to be

interfered with.

4.

On the other hand, the learned counsel for the

respondent has contended that such an observation is

merely an observation and is not a judicial finding.

Therefore, the said observation would not adversely

affect the petitioner's interests. Moreover, once the

three issues were deleted by the learned trial court, the

paras dealing with these issues lose their significance.

Lastly, that instead of submitting his evidence, the

petitioner is merely filing frivolous applications in

order to delay the trial and in order to escape from his

li