Delhi District Court
Naushina Azad & Another vs Mohd. Azad & Another on 3 October, 2013
Naushina Azad v. Mohd. Azad
IN THE COURT OF MS. SHREYA ARORA MEHTA, CIVIL JUDGE1,
ROOM NO. 3, SAKET COURTS, SOUTH DISTRICT, NEW DELHI
In the matter of :
Suit No. 116/10
Naushina Azad & Another
.....Plaintiffs
Versus
Mohd. Azad & Another
.....Defendants
Present: None
ORDER
1. This order shall dispose of an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 moved on behalf of the defendant No.2 for amendment of the written statement.
2. The plaintiff has filed the present suit for mandatory injunction against the defendant No.2 to demolish and remove the two offices /rooms constructed in the basement of the property bearing No. FA41, Thokar No. 4, Abul Fazal EnclaveI, Okhla, New Delhi and permanent injunction for restraining the defendant No.1, his associates etc. from encroaching and carrying out any construction over the common terrace/roof of the third floor of the property FA41, Thokar No. 4, Abul Fazal EnclaveI, Okhla, New Delhi.
Suit No. 116/10 Page 1 of 6Naushina Azad v. Mohd. Azad
3. It is the case of the plaintiff that the plaintiff No.1 is the owner and occupant of the built up property bearing No. FA41, Second Floor, Front Side, Thokar No. 4, Abul Fazal EnclaveI, Okhla, New Delhi and the plaintiff No.2 is the owner and occupant of property No. FA41, Third Floor, Front Side, Thokar No. 4, Abul Fazal EnclaveI, Okhla, New Delhi having purchased the same from the defendant No.2. It is stated that the defendant No.2 is the erstwhile owner of the plot measuring 200 sq. yds who constructed the basement for the purpose of car parking with small servant quarter, ground floor, and two flats each on the first, second and third floor with common roof/terrace for all the occupants of the building. The defendant No. 2 agreed and undertook that the plaintiffs will be entitled to the car parking in the basement and shall have common rights to the terrace/roof and no further construction will be carried out thereupon.
4. It is the grievance of the plaintiffs that the defendant No.2 who is occupying the entire ground floor of the said property turned dishonest and unauthorizedly constructed two rooms as office in the basement as shown in green colour in site plan. And after the said encroachment only four cars could be parked however earlier seven number of cars were being parked.
5. It is further the grievance of the plaintiffs that the defendant No.1 wants to grab and usurp the terrace/roof to the third floor of the property and with that design brought the building material on 27.02.2010 and started construction work. Legal notice dated Suit No. 116/10 Page 2 of 6 Naushina Azad v. Mohd. Azad 17.02.2009 was issued by the residents upon the defendant No.2 wherein it is stated that construction has been carried out in haphazard manner. The defendant No.1 once again started illegal construction on 19.03.2009 and when requested not to carry any construction he did not pay any heed to the objections of the plaintiffs. Hence, the present suit.
6. Both the defendants herein filed a separate written statement. The defendant No.1 has averred that the office in the basement was sold to him on 07.05.2008 and has been in his continuous and peaceful possession. Further, the plaintiff No.2 have no roof right since he did not opt for the same. The defendant No.2 has also averred on the similar lines stating that the basement was sold to the defendant No. 1 on 07.05.2008 and since then the same is in continuous and peaceful possession of the defendant No.1. The office was already constructed besides the storeroom when the property was constructed in the year 1993.
7. It is further averred that as far as the roof is concerned it was sold to intended purchasers along with the flat subject to consideration of extra money in this regard since there are 8 flats in total therefore 1/8 share was decided to be sold to each and every flat. The roof rights were not sold to the plaintiff No.2 since he opted to not to purchase the roof rights for want of money, which was later sold to the defendant No.1 on 20.07.2009 for Rs.1,00,000/. It is only the plaintiff No.1 who has 1/8 share in the terrace/roof of the property who may use and occupy 25 sq. yds of the terrace just and above her flat. The Suit No. 116/10 Page 3 of 6 Naushina Azad v. Mohd. Azad defendants have prayed for the dismissal of the suit.
8. The defendant No.2 has filed the present application under Order VI Rule 17 of the Code of Civil Procedure, 1908 for amendment of his written statement. The defendant No.2 has claimed that at the time of the filing of the written statement, the previous counsel was informed that there are 6 flat owners in the building but the plaintiff No.1 has chosen to join hands with the plaintiff No.2 for a specific reason and calculated purposes. It is stated that those reasons were not mentioned in the written statement due to inadvertent mistake and are important to be brought on record for fair and proper adjudication. The defendant No.2 therefore intend to amend the written statement by incorporating paragraph 2A to the preliminary objection and has prayed for the permission of the court to allow the aforesaid amendment. The said paragraph reads as under:
"The plaintiff No.1 is a married woman but does not have any issue. The plaintiff No.2 is a divorcee and at present he is single. The plaintiff No.1 has more than friendly relations with the plaintiff No.2 despite serious objections by her husband. There are six other occupants of different flats in the building but none of them has come forward to join hands with plaintiff No.
1. The plaintiff No.1 & 2 being extraordinary friends need the terrace for romantic purpose and that is the reason that they have joined hands and instituted the present suit which is based totally on falsehood."
9. The plaintiffs have filed reply to the aforesaid application and opposed the same. The plaintiffs have prayed for the dismissal of the Suit No. 116/10 Page 4 of 6 Naushina Azad v. Mohd. Azad application.
10.I have heard the counsel for the parties and have given due consideration to the rival submissions made and have carefully gone through the record.
11.On perusal of the record, it is revealed that the issues were framed in this case on 05.09.2011 and the matter is pending plaintiffs' evidence. It is at this stage when the defendant No.2 has filed the present application under Order VI Rule 17 of the Code of Civil Procedure, 1908. It is thus manifestly clear that the present amendment application has been moved by the defendant No.2 after the commencement of the trial. The plea of the defendant No.2 is that they had inadvertently failed to incorporate the fact pleaded in the application. The proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 clearly provides that no application for amendment shall be allowed after the trial has commenced unless the court come to the conclusion that in spite of due diligence, the party could not raise the matter before the commencement of the trial. No cogent reason has been explained as to why this paragraph No.2A was not incorporated in the written statement. A mere bald statement that due to inadvertence paragraph 2A could not be incorporated could not suffice. Due diligence on the part of the defendant No.2 is lacking. The proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 operates as a bar to the present application since there is no cogent ground for amendment stated.
12.Further the amendment sought for by the defendant No.2 is not a Suit No. 116/10 Page 5 of 6 Naushina Azad v. Mohd. Azad substantial amendment for the purposes of determining the real question in controversy between the parties. It is settled that leave to amend should be refused to the plaintiff where the proposed amendment would not help him in substantiating his claim, and to the defendant, where the proposed amendment would not help him in supporting his defence. The amendment sought for by the defendant No.2 is of no substance for determining the real question in controversy between the parties.
13.The application is clearly an attempt to delay the disposal of the present suit. In view of these facts and circumstances, the present application under Order VI Rule 17 of the Code of Civil Procedure, 1908 moved on behalf of the defendant No.2 is dismissed being devoid of any merit with cost of Rs.3000/ to the plaintiffs.
14.List for further cross examination of PW1 on 12.11.2013.
Announced in the open (SHREYA ARORA MEHTA)
Court on 3rd October, 2013 CIVIL JUDGE1 (SOUTH DISTRICT)
(Order contains 6 pages) SAKET COURTS, NEW DELHI
Suit No. 116/10 Page 6 of 6