* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 07.9.2011
+ CM(M) No.1005/2011 & CM No.16193/2011
SH. JAGMOHAN KHERA ...........Appellant
Through: Mr.V.K.Vats, Advocate.
Versus
SH.GOPAL KISHAN KHERA ..........Respondent
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.16192/20100 (for exemption) Exemption is allowed subject to just exceptions. CM(M) No.1005/2011& CM No.16193/2011 (for stay)
1. The order impugned before this Court is the order dated 13.7.2011 vide which the application filed by the defendant under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter CM(M)No.1005/2011 Page 1 of 4 referred to as "the Code") seeking amendment of his written statement had been dismissed.
2. Record shows that the present suit is a suit for possession; it is a dispute between two brothers; the elder brother had filed this suit against the younger brother; the suit is of the year 2000; written statement had been filed on 05.12.2003; present application under Order 6 Rule 17 of the Code has been filed on 12.01.2011; that is after a gap of more eight years. The averments made in the said application have been perused. The primary ground for seeking amendment in the written statement is that a friend of the father of the defendant namely D.C.Kalra had in the month of May/June 2009 disclosed to the defendant that his father had executed a will dated 19.12.2000 and D.C.Kalra is an attesting witness to the said will. The will is in the custody of D.C.Kalra; D.C.Kalra had met the defendant at the Bankey Behari Temple when he had informed him of this fact; amendment application has been filed to incorporate this fact that the deceased father of the parties namely of the plaintiff and the defendant i.e. Surender Nath Khera had executed the aforenoted will.
Even as per the averments made in this application this fact about the execution of the will by Surender Nath Khera was CM(M)No.1005/2011 Page 2 of 4 known to the defendant in May/June 2009; the present application as noted supra was filed on 22.2.2011; this intervening period between May/June 2009 to 22.2.2011 remained unexplained. There is also no averment on this count in the application under Order 6 Rule 17 of the Code. These contentions were rightly noted and considered in the impugned order. Court had also noted the factual submission that D.C.kalra was admittedly a resident of Lajpat Nagar where the parties also reside; it is highly improbable that a friend of the deceased father would disclose this fact to the defendant after eight years that also at a chance visit of the defendant to the Bankey Behari mandir. The record also further show that an application under Order 18 Rule 17 of the Code had been filed by the defendant seeking permission of the court to lead additional evidence which application was allowed on 23.7.2009; this fact of the execution of the said will was thus known to the defendant at this stage but even then no mention of this alleged will had either been made in the application under Order 18 rule 17 of the Code and nor was this urged or argued before the Court; record further shows that a second application under Order 18 Rule 17 of the Code had also been filed by the defendant as late as 29.10.2009 in which again there was no mention of will dated 19.12.2000; in these CM(M)No.1005/2011 Page 3 of 4 circumstances the application filed by the defendant was rightly dismissed. The petitioner had obviously not approached the court with clean hands. The impugned order in no manner warrants any interference. Interference is warranted under Article 227 of the Constitution of India only if there is a patent illegality or a manifest error apparent on the face of the record. This is not one such one case. Dismissed.
INDERMEET KAUR, J.
SEPTEMBER 07, 2011 nandan CM(M)No.1005/2011 Page 4 of 4