Sh. Vikrant Singh & Ors vs Sh. Wazir Singh
2014 Latest Caselaw 6990 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CM(M) No. 542/2014 & C.M.Nos.9470-9471/2014

%                                                     19th December, 2014

SH. VIKRANT SINGH & ORS                                       ..... Petitioners
                   Through:              Mr. Vijender Kharb, Adv. &
                                         Mr. B.S. Kharb, Adv.

                          versus

SH. WAZIR SINGH                                          ..... Respondent

                          Through:       Dr. Suman Chaudhary, Adv.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is filed by

the defendant nos.1 to 4 in the suit impugning the order of the trial court

dated 22.03.2014 by which the trial court has dismissed the application filed

by the petitioners/defendant nos.1 to 4 under Order VI Rule 17 read with

Order VII Rule 14 r/w Section 151 of the Code of Civil Procedure, 1908

(CPC) for amending the written statement and also for taking additional

documents on record as regards the new pleas.

2. Firstly I must note that since one petition cannot be filed against two

different orders, at this stage, this petition as per the request made on behalf

of the petitioners is treated only as a challenge to the order dated 22.03.2014

of the trial court dismissing the application of the petitioners filed under

Order VI Rule 17 read with Order VII rule 14 r/w Section 151 CPC.

3. The subject suit is suit for partition. The respondent/plaintiff seeks

partition of the suit property/ land in plot No. 18, Roshan Pura Ext.,

Najafgarh, Delhi on the ground that respondent/plaintiff is a co-owner with

the petitioners/defendants no. 1 to 4. In the existing written statement the

case of the petitioners/defendants no.1 to 4 was that the suit property was no

doubt jointly purchased by respondent/plaintiff and the predecessor-in-

interest of the petitioners/defendants no.1 to 4, namely Sh. Anar Singh

(husband of defendant no. 4 and father of defendant nos. 1 to 3) and that the

respondent/plaintiff and late Sh. Anar Singh were real brothers, but, since

the suit property is already partitioned, therefore, the suit was liable to be

dismissed.

4. By the subject application, the petitioners/defendants no.1 to 4 want to

now plead the case that half of the suit property was already purchased by

late Sh. Anar Singh from the respondent/plaintiff by the documents being

the Agreement to Sell, Affidavit, Receipt, General Power of Attorney dated

27.01.1983, and therefore, late Sh. Anar Singh and the

petitioners/defendants no.1 to 4 are already owners of the half share in the

property which was owned by the respondent/plaintiff.

5. Trial Court has dismissed the application by drawing the following

conclusions:-

(i) There is lack of credibility as regard the documents dated

27.01.1983 which are only notarised and not registered, and,

the documents sought to be filed along with the amendment

application are being filed only after the evidence of the

respondent/plaintiff was closed and the stage of the suit was for

the evidence of the petitioners/defendants no.1 to 4 to

commence i.e the petitioners/defendants no.1 to 4 knew the

entire case/evidence of the respondent/plaintiff.

(ii) If the amendment as prayed for is allowed then the same will

amount to taking up a totally new stand which is diametrically

opposite to the existing stand of the petitioners in the written

statement, because, in the existing written statement joint

ownership of the entire suit plot was admitted to be of Sh. Anar

Singh with the respondent/plaintiff, whereas by the amendment

now filed it is pleaded that the half of the plot belonging to the

respondent/plaintiff was purchased and hence owned by late

Sh. Anar Singh by virtue of the documents dated 27.01.1983.

6. I agree with the aforesaid conclusions of the trial court, and in

my opinion the following additional conclusions can be given for

dismissing the application under Order VI Rule 17 read with Order

VII Rule 14 r/w Section 151 CPC:-

(i) Documents are allowed to be filed at a late stage post the

framing of issues and after the opposite party has led evidence,

only if documents sought to be filed are unimpeachable

documents. The object of law in not allowing filing of new

documents after leading of evidence by other side is that the

new documents sought to be filed are those which can be

manufactured to suit the case of a party after the opposite party

has led evidence.

(ii) In the present case in my opinion there is complete lack

of authenticity to the alleged documentation dated 27.01.1983

not only because they are only notarised and not registered, but

also because it is an admitted fact that consideration under the

said documentation is stated to be in cash i.e consideration is

not paid by cheque, and only in which latter case it was possible

to ensure co-relation of the documents to the date of execution

dated 27.01.1983 inasmuch as payment by means of a cheque

will show that the transaction was entered into on the date of

the documents supported by the payment.

(iii) In fact the documents dated 27.01.1983 are not genuine

documents and are definitely forged and fabricated in order to

sustain the case of the petitioners/defendant nos.1 to 4 now

sought to be pleaded through the subject amendment

application inasmuch as the documents of 27.01.1983 did not

see the light of the day till the subject partition suit was filed in

2008 viz for a period of 25 years from 1983 to 2008. The

alleged documents dated 27.01.1983 never saw the light of the

day is also clear from the fact that on the basis of these

documents no claim was even laid either by late Sh. Anar Singh

or by the petitioners/defendants no.1 to 4 for seeking mutation

of the suit property in their name before the municipal

authorities.

7. It is hence clear that the petitioners/defendants no.1 to 4 are

being totally dishonest because after completion of the evidence of the

respondent/plaintiff, they have forged and fabricated the documents

dated 27.01.1983 to defeat the suit of the respondent/plaintiff.

8. In view of the above, I do not find any merit in the petition, and

same is in view of the discussion above dismissed with costs of

Rs.20,000/-. Costs shall be paid by the petitioners/defendants no. 1 to

4 to the respondent/plaintiff before the trial court.

VALMIKI J. MEHTA, J

DECEMBER 19, 2014 hk