Delhi High Court
Shri Kanwal Kishore Manchanda vs Ms. Raksha Arora And Others on 27 August, 2001
Equivalent citations: 93 (2001) DLT 579
Author: J Kapoor
Bench: J Kapoor
ORDER
J.D. Kapoor, J.
1.
The Division Bench vide order dated 24th August, 1999 specifically observed that the instant application filed by the defendant shall be decided on merits alone and will not be dismissed on account of delay or for any other reason.
2.This is a suit for partition filed by the brother against the sister on the premise that the suit property was the exclusively owned property by the deceased father and was not the property of the partnership firm. Admittedly the plaintiff was one of the partners of the firm of which the deceased father and the defendant's sister were the other partners. The plaintiff at subsequent period of time ceased to be the partner of the firm and the firm therefore continues to be comprised of the deceased father and the defendant.
3. It is also not in dispute that the deceased had left a Will dated 23rd February, 1990 whereby the suit property was bequeathed in favor of the plaintiff as well as the defendant.
4. Through the instant application the defendant seeks to amend the written statement by way of clarification of preliminary objection No. 5 of the written statement. Now the defendant wants to amend the said objection by way of following averments:-
"5. That the industrial plot measuring 2424 sq. yards bearing plot No. B-87, Mayapuri, Phase-I, New Delhi, admittedly, to the knowledge of the plaintiffs, was the firm's property of which the applicant/defendant No. 1 and Late Shri Ram Praakash Arora were the only partners and this fact has always been to the knowledge of the plaintiff and is also reflected in their earlier statements. The said property was all along dealt with as one of the assets of the said firm. Thus Late Shri R.P. Arora as a partner of the firm had no legal right to deal with any specific applicant/defendant No. 1 being the joint owner of the said immovable property. Consequently the alleged claim of the plaintiffs set up on the basis of the Will is untenable and of no consequence. The suit is thus liable to be dismissed on this short ground alone".
5. In view of the nature of claim and counter claims of the parties, particularly the composition of the partnership concern at different points of time as well as admitted factum of the execution of the Will by the deceased father of the parties, the nature of amendment would help in resolving the issues in just and effective manner. To say that the defendant has retracted from her earlier stand that the suit property belonged exclusively to her deceased father and now she is setting up the plea that the said property belonged to the partnership firm is of no consequence in view of the nature of the suit, the parties, and the disputes emanating from the pleadings of the parties as well as the prolonged litigation they have been licked in. In my opinion such a plea cannot be termed as setting up altogether a new case or a new cause of action or a new defense as per the claims and counter claims of the parties vis-a-vis the partnership firm and the Will vide which both the parties were bequeathed some or the other kind of the right in the suit property.
6. The object of allowing the amendment in the averments of the parties is to iron out and solve the tangles and not to complicate them or to leave certain areas for decision in future litigation. The endeavor of the Court should always be, particularly in view of the nature of the suit and the parties who in this case are brother and sister and are claiming their respective rights in respect of the property left by their father to settle the matters once for all and to obviate any future legal objection or legal wranglings that may emerge by leaving all relevant and material disputes between the parties.
7. In view of the foregoing reasons I feel inclined to allow the application. The application is allowed. Amended written statement has already been filed. Let replication to the amended written statement be filed within four weeks.
8. The I.A. stands disposed off.
S.687/93
9. List for framing of additional issues on 20th November, 2001. The parties are also given the liberty to file any additional documents before the next date.
