Delhi High Court
Bhupinder Singh & Anr vs Attar Singh & Anr on 15 November, 2018
$~193
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 230/2017
Date of decision: 15th November, 2018
BHUPINDER SINGH & ANR ..... Appellants
Through: Mr. Sunil Dalal& Mr. Chandan Rai
Chawla, Advs.
versus
ATTAR SINGH & ANR ..... Respondents
Through: Mr. Madan Lal Sharma, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
SANJIV KHANNA, J. (ORAL):
This order disposes of the intra-court appeal filed by Bhupinder Singh
and Randhir Singh.
2. The appellants, Bhupinder Singh and Randhir Singh, and the
respondents, Attar Singh and Col. (Retd.) Yoginder Singh, are brothers.
3. The respondents have filed CS(OS) No. 1088/11 for partition of three
immovable properties, bearing Nos. F-169 Village Katwaria Sarai, New
Delhi, F-100 Village Katwaria Sarai, New Delhi and F-157,Village
Katwaria Sarai, New Delhi.
FAO(OS) 230 /2017 Page 1 of 5
4. Impugned order dated 10.07.2017 passed by the learned single Judge
dismisses I.A. No. 12324/2016 filed by the appellants for amendment of the
written statement to incorporate the plea that the parties had executed
partition deed dated 20.06.1993 on the ground that trial had commenced as
affidavit by way of plaintiff's evidence had been filed and plaintiff's witness
had appeared for recording of deposition. Further, the appellants were
negligent in not relying upon the purported partition deed dated 20.06.1993
earlier, as atleast a photocopy of the partition deed was available with them
in July, 2015.
5. The impugned order also dismisses the Chamber Appeal OA No.
127/2016 filed by the respondents challenging the order of the Joint
Registrar dated 11.05.2016 whereby the appellants were permitted to place
on record a copy of the partition deed dated 20.06.1993 and sale deed dated
11.11.2005.
6. Having heard the learned counsel for the parties, we are inclined to
permit the appellants i.e. Bhupinder Singh and Randhir Singh, to amend
their written statement to specifically rely upon the purported partition deed
dated 20.06.1993.
7. In the written statement, the appellants have pleaded and rely on
alleged oral family settlement and understanding whereby their late father
had given-up and relinquished his share in the suit property in favour of the
parties.
8. As per the case set-up by the appellants, they were unable to trace out
and locate the partition deed dated 20.06.1993.The document relied upon is
an old one and the explanation that it could not be located is plausible and
not make believe. There was no cause or reason for the appellants to
FAO(OS) 230 /2017 Page 2 of 5
withhold the document and not rely on the document in the written
statement. Thus, the assertion is that the purported document dated
20.06.1993 was untraceable. Assertion regarding a family settlement is not
new and does not project a different case but supports the stand already
taken.
9. The Joint Registrar vide order dated 11.05.2016 had allowed the
appellants to place on record the partition deed dated 20.06.1993 and the
sale deed dated 11.11.2005. In Chamber Appeal filed by the respondents
challenging the said order stands rejected by another order of the same date,
namely 10.07.2017.
10. Thus, there is an element of contradiction between the order
disallowing the amendment application and the order dismissing the
Chamber Appeal for production of partition deed dated 20.06.1993 and sale
deed dated 11.11.2005. The impugned order rejecting the amendment
application therefore would result in confusion and unnecessary legal
controversy. Even otherwise the appellants could have confronted the
document to the respondents during their cross-examination.
11. Primary reason given by the learned single Judge to reject the
application for amendment is the proviso to Order VI Rule 17 of the Code,
which states that 'no application for amendment shall 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 before the
commencement of trial.' Secondly, the impugned order highlights
contradiction in the application for production of additional documents and
the averments in the amended application. In the former application the
reason stated was inadvertence, whereas in the application for amendment
FAO(OS) 230 /2017 Page 3 of 5
the reason stated was that despite due diligence the appellants had not been
able to earlier locate the partition deed. On the first aspect, we would record
that the proviso permits amendment where the court is satisfied that despite
due diligence the party could not have raised the matter. Therefore, the issue
was of due diligence on part of the appellants. On the said aspect, we have
already observed that the document was an old one and therefore, the
submission that the document could not be traced merits acceptance. The
plea and explanation regarding due diligence should not be rejected.
Pertinently, the appellants have taken the defence of oral partition that was
accepted and implemented by the parties. The contradiction alleged shows
lack of proper pleadings rather than malafides and false statement.
"Inadvertence" is rather a loose and ambiguous word. The object, intent and
purpose behind the two applications and even the reasons given would
indicate a connect, rather than a contradiction. Given the factual
background, we would grant this latitude to the appellants.
12. At this stage, learned counsel for the respondents states that the
appellants should be burdened with costs as application for amendment was
filed after the trial had commenced. The appellants would file amended
written statement, the respondents would also file replication to the amended
written statement and this will put back the trial and decision of the suit by
some months. Present appeal has remained pending since August, 2017.
Consequently, there has been delay in trial.
13. In the given circumstances, we would accept the prayer made by the
respondents and direct that the appellants shall pay costs of Rs. 25,000/- to
the respondents for the delay caused.
FAO(OS) 230 /2017 Page 4 of 5
14. Respondents have also submitted that since appellants have accepted
the position that the parties were joint owners of the three properties but are
claiming that there was an oral partition, onus of proving the defence should
be on the appellants. With regard to the prayer of shifting of the onus, it will
be open to the respondents to move an application before the learned single
Judge to consider and examine the contention. The appellants would be at
liberty to contest the application on all aspects including maintainability.
15. Costs as aforesaid would be paid within a period of three weeks from
today. Amended written statement shall be filed within the said period.
Replication to the amended written statement shall be filed within three
weeks after service of the amended written statement.
16. Recording the aforesaid, the appeal is disposed of.
SANJIV KHANNA, J.
ANUP JAIRAM BHAMBHANI, J.
NOVEMBER 15, 2018
uj
