Manmohan Singh, J.@mdashBy this order, I shall dispose of the application filed by the defendant No. 1, under Order VI, Rule 17 read with Section 151 CPC for amendment of his written statement. The plaintiff filed the above-mentioned suit for declaration, permanent & mandatory injunction and for possession against defendant No. 1 only, seeking prayer to declare the plaintiff to be the co-owner of Flat No. A-701, Manas Vihar Apartment, Mayur Vihar, Phase-I, Delhi-110091, with consequential relief of joint possession. The permanent injunction was also sought by the plaintiff for restraining the defendant from, in any manner, alienating, encumbering, transferring and/or creating third party interest in the above said flat and also in land measuring 1000 Sq. Yards bearing Khasra No. 31/98th share in Khasra Nos.1631/2 Min (1-6), 1629/1 Min (1-5), 1633/1 Min (0-5), 1632 Min (0-7), 1629/2 Min (0-8) and 1633/2 Min (0-2) situated in Vill. Aya Nagar, Tehsil Hauz Khas Mehrauli, New Delhi.
2. The said suit was listed first time before the Court along with the interim application on 16.02.2010 when the Court passed the following interim order:-
7. Accordingly, the defendant is restrained from creating any third party interest in respect of the two properties bearing flat No. A-701, Manas Vihar Apartment, Mayur Vihar, Phase-I, Delhi-110091 and a piece of land measuring 1000 Sq. Yards bearing Khasra No. 31/98th share in Khasra Nos.1631/2 Min (1-6), 1629/1 Min (1-5), 1633/1 Min (0-5), 1632 Min (0-7), 1629/2 Min (0-8) and 1633/2 Min (0-2) situated in Vill. Aya Nagar, Tehsil Hauz Khas Mehrauli, New Delhi till the next date of hearing.
3. Upon service, the defendant No. 1 filed the written statement wherein, he raised various defences and one of them was that the suit filed by the plaintiff is not maintainable because the relief claimed in the suit has no consequence and the consequential relief for partition has not been sought by the plaintiff, therefore, the suit is liable to be dismissed.
4. After filing the written statement, the plaintiff filed the application under Order VI, Rule 17 read with Order I, Rule 10 CPC being I.A. No. 12891/2010 for adding the prayers (cc), (dd) and (ddd) whereby, the plaintiff sought preliminary decree of partition. The said application was duly allowed vide order dated 13.01.2011, the operative portion of which reads as under:-
2. The suit is at the initial state. It is well settled that the plaintiff can add the prayers in the suit so long as the plaintiff is not setting up new case. The proposed amendments are necessary for determining the real issues between the parties and would avoid multiplicity of litigation. The proposed amendment would not cause any prejudice to the defendant other than delaying the proceedings which can be compensated by costs.
3. For the reasons as aforesaid, the application is allowed and the amended plaint filed along with the application is taken on record subject to the costs of Rs.1,500/- to be paid by the plaintiff to counsel for the defendant.
4. The application stands disposed of.
5. Thereafter, the defendant No. 1 filed the amended written statement wherein, he took additional preliminary objections from paras No. 8 to 13. Therefore, the plaintiff filed the application under Order VI, Rule 7 CPC being I.A. No. 9604/2011 for deletion/striking off those paras from the written statement, as the same was stated to be not filed strictly as per the amendment of the plaint. At the same time, defendant No. 1 filed the application under Order VI, Rule 17 CPC being I.A. No. 14709/2011 for allowing to add the said paras No. 8 to 13 of the preliminary objections in the written statement. Both the applications were taken up by the Court on 16.09.2011. On the said date, the defendant No. 1 withdrew his application being I.A. No. 14709/2011 with liberty to file the fresh one, if so advised. Similarly, in view thereof, the plaintiff had also withdrawn her application being I.A. No. 9604/2011.
6. Now, the defendant No. 1 has filed the present application under Order VI, Rule 17 read with Section 151 CPC by which he intends to amend the written statement filed by him to the amended plaint and to add the following paras in the preliminary objections:-
8. That the suit is also not maintainable because for the relief of partition of the agricultural land, the Hon''ble Court has no jurisdiction. It is stated that as per Delhi Land Revenue Act, suit for partition of the agricultural land before the Civil Court is barred. Only the authority under the Land Revenue Act is competent to decide the said issue.
9. That the suit of the plaintiff is not maintainable because the plaintiff by own act not only agreed for the partition of the partition by taking her own share in the property but she acted upon the said partition. The share for which the plaintiff is entitled to has already got and admittedly, the defendant is not in possession of the same and the plaintiff is in sole and absolute possession of the same and, therefore, the suit is liable to be dismissed.
10. That admittedly the plaintiff is in possession of 500 Sq. Yards of land at Aya Nagar and admittedly, the plaintiff is entitled for that much of land under the partition. Admittedly, the plaintiff is in exclusive possession of 500 Sq. Yards of land and the defendant is not in possession of that part of land and therefore the suit of the plaintiff is without cause of action.
11. That even assuming though not admitting that the sale of Aya Nagar property is liable to be cancelled on the basis of the allegations of the plaintiff, it is stated that in that condition that the defendant would be put to possession of that part of the property only and ultimately when the defendant No. 1 has already sold that part of the property only then it leads to the parties to that situation.
12. That the suit of the plaintiff is also not maintainable because the portion in possession of the plaintiff and the portion which was sold by the defendant No. 1 are having different entities having different boundaries and dimension and the same are not adjoining to each other. There is another property between the same. In a way that the said property was already partition on the basis of the joint act of the plaintiff and defendant. The suit is thus liable to be dismissed.
13. That the suit of the plaintiff is also not maintainable as the plaintiff has not file site plan of the property. The defendant No. 1 is filing the site plan of the property.
7. The plaintiff has filed reply to the said application. As regards the amendment sought by defendant No. 1 for adding paras No. 8, 10, 11, 12 & 13, the learned counsel for the plaintiff during the course of hearing has made the statement that the plaintiff has no objection if the defendant No. 1 is allowed to add the said paras.
8. In para-9 of the proposed preliminary objections to be added in the written statement, the defendant No. 1 has alleged that the said amendment is necessary, as the plaintiff by her own act not only agreed to partition of the property but she also acted upon the said partition. It was also stated in the said para that the share, for which the plaintiff is entitled to, has already got and admittedly, the defendant is not in possession of the same. The plaintiff is in sole and absolute possession of the same.
9. The said amendment is opposed by the plaintiff only as far as para 9 of the amendment application is concerned, mainly on the ground that defendant No. 1 wants to change the nature of his case, as pleaded by him earlier in the written statement. The case of the plaintiff is that the plea of prior partition sought to be added by way of amendment by defendant No. 1, is an after-thought which came into his mind after the plaintiff has sought the partition of the entire estate of defendant No. 1 and the plaintiff. The said plea of defendant No. 1 is only to save himself and other defendants from fraudulent transaction which he has entered into with defendants No. 2 & 3 and in case, the said amendment is allowed, the same would cause great prejudice to the plaintiff.
10. It is alleged that when the suit was filed, the defendant No. 1 raised the plea in his written statement that the same is not maintainable as no partition is sought. Thereafter, the plaintiff in her plaint included the relief of partition. Now the defendant No. 1 is alleging that the partition has already taken place on the suit property.
11. No doubt, in earlier written statement, no objection was raised by the defendant No. 1 that the suit filed by the plaintiff for possession is not maintainable as the consequential relief of partition has not been sought. However, now the defendant No. 1 has alleged that the suit for partition is not maintainable after the amendment in the plaint was allowed by adding the relief of partition.
12. In the amended written statement, the defendant No. 1 has now made the specific statement that the partition has taken place in the property and the plaintiff has acted upon the said partition and she is in possession of the same. Hence, the said plea of defendant No. 1 is to be examined at the time of trial as to whether the partition has taken place or not. It is settled law that merit of the case cannot be gone into while considering the application for amendment of the plaint or written statement. In case, the plea raised by defendant No. 1 after the trial is proved to be false, then the claim of the defendant No. 1 has to be rejected. But, at this stage, the plea of the defendant No. 1 cannot be rejected whether it is false or not and it has been raised after thought. Therefore, the amendment sought by the defendant No. 1 is liable to be allowed.
13. The application is accordingly disposed of. The amended written statement filed by defendant No. 1 is taken on record.
CS(OS) No. 259/2010
The plaintiff is granted four weeks'' time to file the replication to the amended written statement. List the matter before the Joint Registrar on 11.07.2012 for admission/denial of the documents. Thereafter, the same shall be listed before the Court on 18.09.2012 for framing of issues.
