Delhi High Court
Sh. Jagmohan Khera vs Sh.Gopal Kishan Khera on 7 September, 2011
Author: Indermeet Kaur
* 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
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
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
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
