Nirmal Sethi & Ors. vs Deep Chand Anand & Ors.
2012 Latest Caselaw 5217 Del

*               HIGH COURT OF DELHI: NEW DELHI
%                           Judgment pronounced on: 03.09.2012

+ I.A. No. 1653/2005, I.A. No. 10394/2007, I.A. No. 14856/2007,
  I.A. No. 15653/2009, I.A. No. 15654/2009 in CS (OS) No. 2607/1990
      Nirmal Sethi & Ors.                              ..... Plaintiffs
                  Through: Mr. Akhil Sibal Adv. with Mr. K.A. Singh
                             Adv.

                      Versus

       Deep Chand Anand & Ors.                       ..... Defendants
                  Through: Mr Sunil Gupta, Sr. Adv. with Mr Sushil D
                            Salwan Adv. with Mr Aditya Garg & Mr
                            Neeraj Choudhary Advs for D-1.
                            Mr Anshul Tyagi Adv for D2 & D3.
                            Ms Manmeet Arora Adv for D4 & D5.
                            Mr. Santosh Paul Adv with Ms. Kumud
                            Nijhawan and Mr. Arvind Gupta Adv for
                            M/s Nirmal Lifestyle Ltd.

CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.

1. By this order I propose to dispose of the above mentioned applications. The brief facts of the case are that the suit was filed by the five daughters of late Shri Dharam Chand Anand and late Smt. Chanan Kanta Anand namely, Smt. Nirmal Sethi, Smt. Promila Kumar, Smt. Urmil Sawhney, Smt. Ranjul Fazalbhoy and Smt. Manju Ahluwalia against their four brothers namely, Shri Deep Chand Anand, Shri Jagdish Chand Anand, Shri Kuldip Chand Anand, Shri Satish Chand Anand and one sister namely, Smt. Anju Khanna for partition and injunction, inter alia claiming their share to the extent of 1/10th in the intestate suit property left behind by their

parents and also to restrain the defendants by a decree of permanent injunction from claiming more than 1/10th share or from alienating/transferring/encumbering or parting with the possession and further with a request to direct defendant Nos. 1 to 4 to render a true and faithful account of all assets of late Smt. C.K. Anand and late Sh. S.K. Anand.

2. The plaintiffs claim that late Smt. C.K. Anand was the owner and in possession of the following properties :

a. House No. 99 Jor Bagh, New Delhi.

b. Property at 1, Aurobindo Marg at Haus Khas, New Delhi.

c. Jewelleries of gold and silver.

d. Bank balance in Bank of India, Haus Khas bearing account No. 2437 and in Punjab National Bank Jor Bagh, New Delhi bearing account No. 463.

e. National Savings Certificates.

f. 2000 Shares of Gabriel India Ltd. and Shares in Purolator India Ltd.

3. Following are the list of the properties left behind by late Shri Dharam Chand Anand :

a. Property at 1, Aurobindo Marg, New Delhi.

b. 25000 shares in Gabriel India Ltd.

c. 20000 shares in Asia Investment.

d. Gold, silver jewelleries and cash.

e. Share in HUF property in Kedar Cottage Shimla including the immovable property lying there.

f. Land bearing survey No. 304 & 305 at Lal Bahadur Shastri Marg, Mulund, Bombay.

g. Interest and share in D.C. Anand & Sons.

4. Father of plaintiffs and defendants, Shri Dharam Chand Anand died on 23rd February, 1984 and their mother, Smt. C.K. Anand died on 26th April, 1977. It is averred by the plaintiffs that their parents died intestate and they were not aware of the movable and immovable assets left behind by their parents.

5. After the death of Smt. C.K. Anand and Shri Dharam Chand Anand all the properties possessed and owned by them vested in the plaintiffs and defendants in equal 1/10th shares. However, defendant No. 1 tried to persuade the plaintiffs to relinquish their respective rights in the properties and even threatened to dispose of the properties. Therefore, the cause of action for filing the present suit arose in June 1990 when plaintiff No. 1 was having a general discussion at the dinner table at Kedar Cottage, Shimla where defendant No. 1 objected to her raising the issue of partition of suit property. When the suit along with the interim application was listed before the Court on 22nd August, 1990, the Court passed the status quo order dated 22nd August 1990. Relevant portion of the said order reads as under:-

"Taking into consideration the allegations made in the application and duly supported by an affidavit as well as documents filed, I am of the view that if the ad-interim injunction is not issued, the very purpose of filing the suit is likely to be frustrated. I, therefore, direct that parties shall maintain status quo with regard to the possession in the meantime. Defendants shall not in the meantime part with possession or encumber the properties in any manner whatsoever."

6. During the course of proceedings, plaintiff Nos. 3 and 4 and defendant Nos. 1, 2, 3 and 5 jointly filed a compromise application under Order XXIII Rule 3 CPC, being I.A. No.4441/1997, which was allowed by order dated 26th November, 2007. The matter was settled between them, who jointly filed an application for compromise being I.A. No.4699/1997 and the same was also allowed vide order dated 26th November, 1997. Thereafter, plaintiff No.2 and defendant Nos.1 to 3 filed a joint application for compromise being I.A. No.8861/1999 which was allowed vide order dated 8th September, 1999. Lastly, on 10th November, 2004 plaintiff No.1 and defendant Nos.1 to 3 filed a joint application being I.A. No.8861/1999 for compromise which was allowed by order dated 10th November, 2004. The stand of defendant No.5 was also in line with the stand of defendant Nos. 1 to 3. Prior to filing of I.A. No.2572/2003 joint application between plaintiff No.1 and defendants No.1 to 3, Shri Satish Chand Anand filed an application being I.A. No.2572/2003 under Order XXIII Rule 1A and Order I Rule 10 read with Section 151 of CPC, inter alia, praying for being transposed as a co- plaintiff in the suit. The said application of defendant No.4 was allowed wide order dated 10th November, 2004 and defendant No.4 was transposed as a plaintiff in the suit (hereinafter he would be referred as plaintiff). Amended memo of parties was filed on 10 th December, 2004 and now the suit is between the transposed plaintiff i.e. Shri Satish Chand Anand and defendants mentioned above. The transposed plaintiff thereafter, filed an application being I.A. No. 1653/2005 under Order XII Rule 6 CPC seeking a decree on admissions made by defendant Nos. 1 to 3 regarding Mulund land. The defendant Nos. 1 to 3 also filed an application under Order VII Rule 11

read with Order XII Rule 6 seeking rejection of plaint being I.A. No.8841/2005.

7. The defendant Nos.1 to 3 filed an application seeking modification of the interim order dated 22nd August, 1990 being I.A. No.9423/2001 where it sought exclusion of the Mulund land from the effect of the interim order of status quo. Shri Satish Chand Anand also filed an application being I.A. No.4005/2007 under Order XXXIX Rule 4 CPC for the similar relief. On 24th September, 2008 an order was passed directing that the Mulund land stands excluded from ex-parte status quo order dated 22nd August, 1990. The said order was challenged by defendant Nos.1 to 3 in FAO (OS) No.503/2008 which was dismissed on 8th April, 2010 by the Division Bench of this Court. Thereafter, the defendant Shri Deep Chand Anand and others filed an appeal before the Supreme Court being Civil appeal No.811/2011 (S.L.P Civil No.16489/2010) which was disposed off by a detailed order dated 19th January, 2011. Relevant portion of the said order is reproduced hereunder:-

"From the judgment impugned, it is evident that the Division Bench has confirmed the order passed by the learned Single Judge vacating the status quo order relating to Mulund land on the footing that the Mulund land would fall to the share of the respondent even if his case that he has one-tenth share in other properties is rejected. However, the appellants have relied upon several documents including relinquishment deeds to contend that the suit claiming one-tenth share in the estate of Late Shri Dharam Chand Anand and late Smt. Chanan Kanta Anand is not maintainable because the respondent after having received the benefits and the assets pursuant to the settlement and division of business with defendant Nos.1 to 3, is dishonestly seeking to assail the same by claiming a share in the estate of his deceased parents. What is claimed by the appellant in the written statement is that the appellant had retired from the

partnership firm M/s. Anand Automobiles and relinquished and declared that he had no interest in the lands, assets, properties of M/s. Anand Automobiles including the lands and building at 1, Aurobindo Marg, New Delhi and received the equity shares and control of M/s. Automotive Ltd. as well as the land at Mulund, Bombay.

In view of what is averred in paragraph 9 of the written statement by the defendant Nos.1 to 3, it would be wrong to contend that the respondents have not admitted that the respondent is entitled to Mulund land as of right. It may be mentioned that after the respondent was transposed as plaintiff, he has filed an application seeking amendment of the plaint but till date he has not taken any steps to see that the said application is heard and appropriate orders are passed. The result is that the plaint which was prosecuted by the 5 sisters of the respondent remains on the record of the case wherein prayer for share in Mulund land is also claimed. The question whether Mulund land given to the respondent was a part of the larger family settlement or a smaller partnership settlement is yet to be decided by the trial court on the basis of the evidence to be adduced by the parties. The so called admission made by the appellants are sought to be explained by them.

On the fact and in the circumstances of the case, this court is of the opinion that neither the trial court nor the appellate court was justified in vacating the stay partially. Therefore, the appeal deserves to be allowed.

For the foregoing reasons, the order dated 24.9.2008 passed by the learned Single Judge of the High Court in I.A. No.4005/2007 which was filed in CS(OS) No.2607/90 vacating partially the status quo order dated 22.8.1990 as confirmed by the Division Bench of the High Court in the impugned judgment is also set aside. The effect of the setting aside of these two judgments would be that the order of status quo stand revived and embraces in its sweep Mulund land which according to the respondent belongs to him. Having regard to the facts of the case, the trial court is requested to dispose of the suit as early as possible and without any avoidable delay. It is clarified

that the observations made by this Court in the present order are tentative in nature and have been made while deciding the question whether the status quo should have been partially vacated or not and will not affect the decision in the suit which will have to be rendered on the basis of the evidence that may be led by the parties. It is further clarified that it will also be open to the respondent to approach the court for mediation as provided by law."

8. I have heard the learned counsel for the parties, perused the pleadings and documents placed on record. Let me now advert to dealing with the pending applications in the present suit.

9. In I.A. No.14856/2007 which has been filed by the present plaintiff Shri Satish Chand (previously defendant No. 4) under Order VI Rule 17 read with Section 151 CPC seeking, inter alia, that his written statement should be read as a part and parcel of the plaint of the erstwhile plaintiffs or in alternative, the present plaintiff be allowed to amend paragraph 6 of the amended plaint by deleting the following "(vi) land bearing Survey No. 304 and 305, Lal Bahadur Shastri Marg, Mulund, Mumbai", from the list of properties shown therein as properties owned and possessed by Late Sh Dharam Chand Anand.

10. Plaintiff states that before being transposed as a plaintiff, the present plaintiff had filed written statement raising an objection regarding the inclusion of the property at Survey No. 304 & 305, Lal Bahadur Shastri Marg, Mulund, Mumbai as a part of the estate of Late Dharam Chand Anand. It was stated that the said land never belonged to Shri Dharam Chand Anand and it belonged to the partnership firm namely, M/s. Anand Automobiles and later became a property of the plaintiff. According to the

plaintiff, defendant Nos. 1 to 3 in their written statement as well as the amended written statement have admitted the said fact.

11. It is also alleged in the application that during the hearing of another application bearing No. 4005/2007 an objection was raised by defendant Nos. 1 to 3 claiming that they were not aware of the stand of the plaintiff, inasmuch as, the present plaintiff has taken a contrary stand to his written statement, by adopting the plaint, without any modification. As per plaintiff, the said objection is misconceived as neither his transposition application nor the order passed on the application anywhere mentions that he has adopted the plaint without any modification. It is stated by the plaintiff that earlier the plaintiff was not aware that defendant Nos. 1 to 3 would raise objection after settlement being arrived at between the earlier plaintiff and defendant Nos. 1 to 3 and 5. It was not the case of the parties in the pleadings that the Mulund property was a part of the property of Late. Sh. Dharam Chand Anand. It is argued by the plaintiff that after transposing as a plaintiff the written statement filed by him as defendant No.4 is to be read together as a part and parcel of the original plaint. Hence, the plaintiff seeks such amendments.

12. Following prayer is made in the application:

"a) read the written statement of the present plaintiff (erstwhile defendant no.4) alongwith the plaint filed by the erstwhile plaintiff In the alternative Allow the present plaintiff to amend para 6 of the amended plaint by deleting "(vi) land bearing Survey no.304, 305, Lal Bahadur Shastri Marg, Mulund, Mumbai" from the list of properties shown therein, as properties owned and possessed by late Sh. Dharam Chand Anand;"

13. Learned counsel for the plaintiff has referred to a decision of AIR 2006 SC 1647, Rajesh Kumar Aggarwal and Ors. Vs. K.K. Modi and Ors. The relevant paras read as under:

"10. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

12. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment...."

14. In the reply filed by the defendants it is stated that the process of settlement started from the year 1984 which culminated into a final settlement in the year 1990 whereby the plaintiff gave up all his shares in the estate of his parents, D.C. Anand & Sons HUF, M/s Anand Automobiles. Now the plaintiff is trying to resile from the said settlement. The plaintiff has concealed the fact that he has relinquished his interest in the Jor Bagh

property, the Haus Khas property as well as in the estate and the HUF except for 18.18% share in Kedar Cottage. In the suit filed by the sisters, Mulund property was also specified in the schedule of properties.

15. No doubt, the defendant No.4 was transposed as a plaintiff in the matter who filed a separate written statement earlier raising an objection with respect to the inclusion of the land of Mulund, Mumbai. It was mentioned in the written statement that the said land never belonged to Late Sh. Dharam Chand Anand and the same belonged to a partnership firm M/s Anand Automobiles and later became a property of the present plaintiff on his retirement from the said firm in the year 1984. The following stand was taken by the present plaintiff (earlier defendant No.4) from the day one:

"i) Mulund property was never the property of late Sh. Dharam Chand Anand;

ii) Mulund property was owned by M/s Anand Automobiles, a partnership firm;

iii) Mulund property became property of plaintiff on his retiring from Anand Automobiles in 1984;

iv) All the erstwhile plaintiffs and defendants were entitled to 1/10 th share in the other properties mentioned in the suit i.e. the estates of late parents of the parties;

v) Claimed his 1/10th share from the defendant Nos.1 to 3, as was the claim of the erstwhile plaintiffs.

16. It is argued by learned Senior counsel appearing on behalf of defendant Nos. 1 to 3 that the application is totally misconceived and not maintainable as there is no provision in law for an application for reading one thing together with an another thing. That is part of adjudication and the judicial process. Such application is not maintainable. As regards alternative prayer sought is concerned, it was argued by the learned Senior

counsel that the application is barred by the principle of res judicata as the same very issue as to whether Mulund land cannot be excluded or it is forming part of the suit property is a matter of trial as held by the Supreme Court in the order dated 19th January, 2011, the same cannot be re-agitated by the plaintiff. Learned Senior counsel has referred various decisions on the issue of res judicata. He has also referred certain admissions made by the plaintiff in the pleading of the other application.

17. As far as argument of learned Senior counsel on alternative prayer is concerned, I totally agree with the submission that the same is issue i.e. whether Mulund land can be excluded or part of the suit properties is a matter of trial and has rightly pointed out the order dated 19 th January, 2011 passed by Supreme Court on this issue. The only aspect as to whether an application filed by the plaintiff seeking first prayer to the effect that his written statement alongwith original plaint be read together is a matter of discussion here. It is the admitted position that the property of Mulund land is included in the plaint/suit filed by five sisters who later on compromised the matter with defendants. It is also a matter of fact that when the order was passed by the Hon'ble Supreme Court, the plaintiff's application under Order VI Rule 17 CPC was pending.

18. Apparently, since the defendant Nos.1 to 3 were settling the matter with all the plaintiffs, defendant No.4 filed an application being I.A. No.2572/2003 for being transposed as a plaintiff in order to assert his right. In case, the arguments of defendant Nos.1 to 3 are accepted, then the application has to be dismissed and then there would be a controversy between the parties as to whether the written statement filed by the plaintiff

as defendant No.4 should be considered as a plaint or not. Admittedly, all the original plaintiffs have settled their disputes with defendants No.1 to 3. Therefore, if plaintiff is not to read his written statement which contained his defence, his case would definitely be prejudiced. If the order passed by the Hon'ble Supreme Court is read in a meaningful manner, it is clear that the Hon'ble Supreme Court has observed that the passing of the interim order was tentative in nature and has been made while deciding the question whether the status quo should have been partially effected or not and this will not affect the decision of the suit which will have to be rendered on the basis of the evidence led by the parties. Under these circumstances, no one can deny that after passing the said order, the same very issue as to whether the Mulund land cannot be excluded or it forms part of the suit property is a matter of trial. The said issue is to be decided in the manner as agreed by the defendants No.1 to 3 and no prejudice would be caused if the prayer made in the application is allowed as I am of the considered view that issue whether Mulund land can be excluded or is part of the suit property is a matter of trial. Therefore, great injustice would be caused to the plaintiff if the said prayer is rejected in determining the real issue involved.

19. Thus, I am of the view that it is necessary that the written statement along with the plaint may also be read and the parties may lead their evidence in order to decide the said issue. It is not necessary to discuss the various decisions referred by the counsel for the defendants.

20. Mr. Akhil Sibal, learned counsel appearing on behalf of plaintiff has no objection in this regard. He is not pressing alternative prayer also.

Accordingly, the application is allowed to this extent. Response, if any, be filed by the defendant Nos. 1 to 3 by the next date.

21. Another application being I.A. No. 15654/2009 under Order I Rule 10 (2) of the CPC, was filed by the defendants for impleading Mr. Dharmesh Jain, Managing Director, M/s Nirmal Lifestyle Ltd. having registered office at Jawahar Talkies Compound, N.S. Road, Mulund (West), Mumbai- 400080 as a proper party to the suit.

22. The defendants state that Mr. Satish Chand Anand plaintiff entered into MoU dated 15th January, 2007, thereby creating third party interest in the Mulund property insipte of the order dated 22nd August, 1990 blatantly violating the Court order. By way of the MoU dated 15th January, 2007 plaintiff Satish Anand granted development rights or sell and transfer rights in favour of Nirmal Lifestyle Ltd. whose managing director is Dharmesh Jain. It is further stated that Shri Dharmesh Jain was aware of the interim order of the court and even approached the defendants for resolution of disputes. Even in the MoU dated 15th January, 2007 the factum of interim order has been recorded. Thus, the knowledge of order is established. Thus, for the purpose of proper adjudication of disputes and to avoid multiplicity in such situation, it is important to implead Nirmal Lifesytle Ltd. as defendant No.4 in the suit.

23. It appears from the record that the public notice was issued by defendants No.1 to 3 against alienation of Mulund land by anyone. The present plaintiff/defendant No.4 on 15th January, 2007 entered into MoU with Nirmal Lifestyle Ltd. for development, construction and sale of accommodations on Mulund land in Mumbai. It was the plaintiff who after entering into the agreement filed an application, being I.A. No.4005/2007

for exclusion of Mulund land from the interim order dated 22nd August, 1990 in order to enable him to develop and sell the land as alleged by the defendant Nos.1 to 3. The Division Bench dismissed the appeal, being FAO(OS) No.503/2008, filed by the defendant Nos.1 to 3. However, vide order dated 20th January, 2005, it was observed that there was sufficient material present with regard to the MoU and issue with regard to Mulund land was also framed.

24. Mr Sibal, learned counsel appearing on behalf of the plaintiff, has fairly conceded that as far as prayer of this application is concerned, without prejudice to his right to contest the matter on merit, his client has no objection if the same is allowed. M/s Nirmal Lifestyle Ltd., registered office at Jawahar Talkies Compound, N.S. Road, Mulund (West), Mumbai, is impleaded as defendant No.4 in the matter. The defendant Nos.1 to 3 are directed to furnish the complete set of paper book to Mr. Santosh Paul, learned counsel appearing on behalf of M/s. Nirmal Lifestyle Ltd. within four days. The written statement, if any, be filed by the next date. The amended memo be filed by the defendant Nos.1 to 3 within two weeks. The application is disposed of.

25. I.A. No. 1653/2005 was filed by plaintiff Mr. Satish Chand Anand under Order XII Rule 6 of the Code of Civil Procedure, 1908. Mr. Satish Chand Anand was included in the memo of parties vide order dated 10 th November, 2004 and he adopted the plaint filed by the original plaintiffs. By way of this application he is seeking a slight modification in the plaint wherein he admitted that the property at Mulund Bombay was the property of M/s Anand Automobiles and did not form a part of the estate of Late Sh. Dharam Chand Anand. The said fact has been admitted by the defendant

Nos. 1 to 3 in the written statement. The applicant/plaintiff submits that in paragraph 9 of the written statement defendant Nos. 1 to 3 had admitted that the land at Mulund, Bombay was given to defendant No.4 alongwith the shares and interests in M/s Asia Automotive Ltd. The settlement was done pursuant to the division of the business between the applicant and defendant Nos. 1 to 3 wherein defendant No. 4 had retired from partnership in M/s Anand Automotive Ltd. relinquishing all the rights and further declared that he has no interest in the assets and properties of M/s Anand Automotive Ltd. The defendant Nos. 1 to 3 had given up their share in Mulund land in favour of the present applicant/plaintiff. Thus, a decree ought to be passed on a clear and unequivocal admission on the part of defendant Nos. 1 to 3 in their written statement in respect of the two properties namely the Mulund land in Bombay and 1/5th share in Kedar Cottage, Shimla in favour of present applicant/plaintiff.

26. In the reply filed by defendants it is stated that during the pendency of the suit, the plaintiffs No.1 to 5 and defendant No. 5 had compromised their claim with the defendant Nos. 1 to 3 which was duly recorded and signed by the respective parties and accepted by the Court. The defendants pointed out certain objections raised by them in the written statement like the plaintiffs have not asked for any consequential relief of partition and possession of the alleged share hence, the suit is barred by Section 34 of the Specific Relief Act, 1963.

27. It is submitted by the defendants that the land at Mulund, Bombay, was always with M/s Anand Automotive Ltd. Mr. Dharam Chand Anand was a partner of the said firm till 1970 and thereafter, he resigned from the partnership with all his accounts settled. His share in the Aurobindo Marg

property formed an asset of the partnership firm. Sh. Satish Anand and his group had already relinquished their share in the property i.e. in the firm M/s Anand Automobiles and as well as in Aurobindo Marg, New Delhi as he received his equity share in Asia Automotives Ltd. as well as the land in Mulund, Bombay.

28. Mr. Sibal stated during the course of hearing that incase the plaintiff's application for amendment of plaint is allowed and in view of the passing of the order by Supreme Court to expedite the trial of the suit, his client will not press this application. Since the application filed under Order VI Rule 17 CPC is allowed by passing the necessary order in I.A. No. 14856/2007, the present application is disposed of as not pressed at this stage.

29. I.A. No. 15653/2009 has been filed by the defendant Nos.1 to 3 under Order XXXIX Rule 2A of CPC for initiation of contempt proceedings against the present plaintiff.

30. It is submitted in the application that despite the pendency of the ex- parte injunction order dated 22nd August, 1990 which was operative upto 24th September, 2008 the plaintiff vide MoU dated 15th January, 2007 created third party rights in the Mulund property and the same is a gross violation of the orders of this Court dated 28th August, 1990 wherein it was directed that the parties shall not encumber the properties in any manner whatsoever.

31. Mr. Sibal, learned counsel appearing on behalf of the plaintiff, has opposed the prayer of this application mainly on the ground that the plaintiff has raised no objection if M/s Nirmal Lifestyle Limited be impleaded as defendant. It is yet to be established by the defendant Nos.1 to 3 as to whether the plaintiff has violated the interim order passed by this Court. He

further submits that the evidence in this respect has to be produced by the defendants. He further states that the property has not been built by the said builder. Therefore, the application is pre-mature at this stage.

32. Having considered the rival submissions of the parties, I am of the view that the parties may lead their evidence in this application also and the same may be decided at the final stage.

33. Another application being I.A. No. 10394/2007 was filed by the defendant Nos.1 to 3 under Section 151 of CPC against Mr. Satish Chand, seeking to include the residential flat bearing No. 6, Mistry Manor, Napean Sea Road, Mumbai, as subject matter of the suit property. It is stated that the said immovable property at Mumbai belonged to late Sh. Dharam Chand Anand and the same has deliberately not been included in the schedule of properties. The same has been purchased out of the funds of Sh. Dharam Chand Anand & Sons HUF and accordingly, it is to be included in the schedule of properties.

34. In the reply to the said application it is stated that inclusion of property at Mistry Manor, is just a counter blast to the suit filed by Shri Deepak Chand Anand (adopted son of defendant No. 1). According to the plaintiff, during his life time, Shri Dharam Chand Anand had given the said property to him and the defendants never raised this issue either in written statement or the amended written statement. Now, this issue is being raised only to cause prejudice to the plaintiff.

35. I have heard the learned counsel for the parties on this application. I am of the view that the application is an afterthought and is not maintainable due to the reason that the defendant Nos.1 to 3 never raised this issue either in the written statement or in the amended written statement. It is also

pertinent to mention that the suit was filed by five sisters of defendant Nos.1 to 3 with whom the defendant Nos. 1 to 3 have settled the matter. In the plaint, the said property was not included in the list of properties. On the face of it, the application is filed in order to prejudice the case of the plaintiff. The same is hereby dismissed.

CS (OS) No. 2607/1990 List before the roster bench on 8th October, 2012.

MANMOHAN SINGH, J.

SEPTEMBER 03, 2012