Delhi High Court
Minati Das vs Subhankar Mohapatra & Ors on 13 January, 2016
Author: Valmiki J. Mehta
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1521/2011
MINATI DAS ..... Plaintiff
Through Mr. Pradeep Dhingra, Advocate with
Mr. plaintiff in person.
versus
SUBHANKAR MOHAPATRA & ORS. ..... Defendants
Through Mr. R.R. Kumar, Adv. for D-1
Mr. Arvind Bhatt, Adv. for D-2
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
ORDER
% 13.01.2016
I.A. No.4696/2014 (filed by plaintiff under Order XII Rule 16 CPC)
1. This application is disposed of as not pressed.
I.A. No. 8845/2015 (filed by plaintiff u/O XI Rules 12, 13 & 14 CPC)
2. This application is disposed of as not pressed as plaintiff has filed
secondary evidence to show the ownership of the parents of the plaintiff of
the properties of which partition was originally claimed as also additional
properties with respect to which application for amendment is filed.
I.A. No.10037/2015 (filed by plaintiff u/O VI Rule 17 CPC)
3. This is a suit for partition and other related reliefs filed by the plaintiff
who is the daughter of late Dr. Shyam Sunder Mohapatra and late Smt.
CS(OS) No.1521/2011 page 1 of 6
Radha Devi who expired respectively on 28.04.2006 and 31.05.2008. By
this application the plaintiff seeks to add to the suit properties those
properties which were left out originally and thus have to be added as these
properties of the parents have to be also partitioned. These properties which
are sought to be added are in two sets. One set of properties are those which
stood in the name of the parents of the plaintiff on the dates of death of the
parents and other set of properties are those which did not stand in the name
of the parents on the dates of their death. Counsel for the plaintiff very
fairly concedes that he restricts the present application as also the suit for
partition with the other related reliefs to those properties which were
standing in the names of the parents of the plaintiff on the dates of their
death. Once that is so, counsel for the defendant no.1, and who is presently
the only contesting defendant, does not oppose the application without
prejudice to the rights of the defendant no.1 to raise all defences of fact and
law in his written statement which will be filed to the amended plaint.
This I.A. is thus allowed and disposed of.
4. Counsel for defendant no.2, who is set ex parte, sought to address
arguments on the application under Order VI Rule 17 CPC filed by the
CS(OS) No.1521/2011 page 2 of 6
plaintiff, but defendant no.2 cannot be heard because no doubt a defendant
who is ex parte can participate at all stages but such participation would be a
futile participation where there is no such defence existing of such a
defendant either to the suit or this application, and therefore really only the
application for amendment as per the averments made therein have to be
examined, subject to the modification as made by the counsel for the
plaintiff during the arguments. So far as the application for amendment is
concerned, the defendant no.2 need not be heard, however, defendant no.2
will always get a fresh right to file written statement to the newly amended
plaint.
5. Amended plaint filed cannot be taken on record inasmuch as some of
the properties which stood in the name of the parents as on the dates of their
death, are alleged by the plaintiff to have been sold by the defendants or
some of the defendants. With respect to these properties which are therefore
illegally sold as per the case of the plaintiff, plaintiff will have to seek reliefs
of recovery of monies and pay ad valorem court fees. Accordingly, the
fresh amended plaint be filed which will essentially be in three parts (of
course, with related reliefs) i.e for partition of the properties which stood in
CS(OS) No.1521/2011 page 3 of 6
the names of the parents on the dates of death of the parents, relief of
recovery of monies with respect to properties which are said to be owned by
the parents on the dates of their death which but as per the plaintiff have
been illegally sold by the defendant(s) and injunctions.
6. At this stage, counsel for the plaintiff on instructions from the plaintiff
who is present in person, states that the plaintiff gives up the relief of the
recovery of monies with respect to the properties which as per the case of
the plaintiff were in the name of the parents on the dates of their death but
were said to have been illegally sold by the defendant(s). Accordingly, the
amended plaint be now filed seeking the relief of partition and related reliefs
of properties which were in the names of the parents on the dates of their
death and which position exists today as per the title deeds and revenue
records or any other records showing the ownership of these properties in
the names of the parents of the plaintiff. Amended plaint be filed within a
period of four weeks from today.
I.A. stands disposed of accordingly.
I.A. No.10038/2015 (u/O 39 R 1 & 2 CPC)
7. Counsel for the parties agree that parties will maintain status quo with
CS(OS) No.1521/2011 page 4 of 6
respect to possession and title of the properties which were of the parents as
on the dates of their death and which continue to remain as of today in the
names of the parents either in terms of title deeds or revenue records or
judicial record or any other related record showing title of the properties. If
such record does not show ownership of the parents as to the properties on
the dates of their respective deaths, there is no interim order passed by this
Court with respect to such properties. Of course, this order is passed without
prejudice to the respective rights and contentions of the parties and all
aspects will be decided at the stage of the disposal of the present injunction
application when the I.A. comes up for hearing and disposal.
8. Reply be filed by the defendant nos.1 and 2 within a period of six
weeks. Rejoinder be filed within four weeks thereafter.
List before the Joint Registrar on 1st April, 2016 for completion of
pleadings.
CS(OS) No.1521/2011
9. Defendant nos.1 and 2 will now file written statements to the
amended plaint within a period of eight weeks from today. Replication be
filed within four weeks thereafter. Parties will file additional documents in
their power and possession within six weeks and admission/denial thereof be
CS(OS) No.1521/2011 page 5 of 6
done within two weeks thereafter by filing affidavits attaching thereto an
index of documents of the other side containing an additional column of
endorsement of admission/denial.
10. List before the Joint Registrar for marking of exhibits to the
documents on 1st April, 2016.
11. List before the Court on 10th May, 2016.
VALMIKI J. MEHTA, J
JANUARY 13, 2016
nn
CS(OS) No.1521/2011 page 6 of 6
