Delhi High Court
Avinash Rajpal S/O Shri Bhagwan ... vs Ajay Rajpal, S/O Shri Bhagwan Dass ... on 27 July, 2005
Author: M B Lokur
Bench: M B Lokur
JUDGMENT
Madan B. Lokur, J.
IA 703/2005
1. This is an application filed by Defendant No.1 seeking permission to amend paragraph 2 of the preliminary objections taken in the written statement.
2. The written statement in this case was filed by Defendant No.1 on 10th February, 2003.
3. After admission/denial of documents, issues in the case were framed on 31st August, 2004 and a Local Commissioner was appointed to record the evidence. The Local Commissioner was directed to hold his first sitting on 7th December, 2004 Well before the date of recording evidence, the Plaintiff filed his affidavit by way of evidence on 23rd October, 2004
4. The application for amendment was filed by Defendant No.1 on 25th January, 2005.
5. In other words, Defendant No.1 filed his application for amendment after a gap of almost two years of filing the written statement and in any case after the Local Commissioner was appointed to record evidence on 31st August, 2004 and the filing of an affidavit by way of evidence by the Plaintiff.
6. The application is opposed by learned counsel for the Plaintiff principally on the ground that in terms of the provisions of Order VI Rule 17 of the CPC, the amendment should not be allowed since the trial has commenced and there is no averment made by Defendant No.1 that the amendment could not have been raised before the commencement of trial and in spite of due diligence.
7. The above sequence of events would show that trial in the case has in fact commenced and it was the duty of Defendant No.1 to have pleaded why, in spite of due diligence, it could not have raised the matter of amendment before the commencement of trial. Admittedly, Defendant No.1 has made no such averment in the present application and even during the course of submissions before me, there was no explanation given why Defendant No.1 could not have amended its written statement much earlier and in any case before the commencement of trial.
8. Under the circumstances, there is no merit in the application which appears to have been filed only to delay the proceedings. The application is, accordingly, dismissed with costs of Rs.3,000/- to be paid by Defendant No.1 to the Plaintiff within a period of four weeks from today. IA is disposed of.
IA 704/2005
9. This is an application filed by Defendant No.1 under Order XIV Rule 2 of the CPC. The relief claimed by Defendant No.1 is that Issue No.1 be ordered to be tried as a preliminary issue. Issue No.1 reads as follows:-
"Whether the suit has been properly valued for the purpose of partition"?
10.The submission of learned counsel for Defendant No.1 is that since the Plaintiff is admittedly not in possession of the suit property sought to be partitioned, he is obliged to pay ad valorem court fee. In this regard, reference has been made to the averment made by the Plaintiff in paragraph 5 of the plaint wherein it has been stated that Defendant No.1 is in exclusive possession of the suit property.
11.Briefly, the facts of the case are that the Plaintiff, Defendant No.1 and the wife of Defendant No.2 were doing business in electronic and other allied items under the name and style of M/s Music Mahal in the suit property in partnership with each other. The partnership appears to have been dissolved some time in 1999 and Defendant No.1 retained possession of the suit property.
12.There is an averment in the plaint that the suit property was purchased out of the funds of the Plaintiff, Defendants No.1 and 2 and their father late Shri B.D. Rajpal. In other words, it is averred that the suit property is joint family property.
13. Under the circumstances, it would be difficult at this stage to say, in the absence of any evidence, whether the Plaintiff was ousted from the suit property or not. He may well be in juridical possession of the suit property.
14. Consequently, I am not inclined to allow this application at this stage. However, liberty is granted to Defendant No.1 to re-agitate this question and have Issue No.1 decided as a preliminary issue after evidence is recorded in the case.
15. The application is disposed of in the above terms. No costs.
