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Delhi District Court

Ravinder Kumar Babbar vs Smt Krishna Devi And Others on 31 March, 2016

     IN THE COURT OF SH. RAKESH KUMAR­IV, LD ADJ­10
            WEST DISTRICT,TIS HAZARI COURTS

CS No. 261/16

Ravinder Kumar Babbar

                                                                   .........Plaintiff
                                     Versus
Smt Krishna Devi and others


                                                                 .......Defendant

                                      Date reserved for Order:30.03.2016
                                               Date of Order: 31.03.2016

ORDER

1. By filing present application U/sec. 151 & 152 CPC amendment in the judgment and preliminary decree dated 02.02.2016 has been prayed/sought only to the extent of correction of name of defendant no. 3 as Lakshay Babbar which is inadvertently mentioned as Khushwant Rai on the ground that even at the time of filing of written statement, affidavit of defendant no. 3 Lakshay Babbar had been attached in support of WS of defendant no. 3 and subsequently defendant no. 3 had examined himself by way of affidavit and cross examined.

2. On the other hand, no reply on behalf of plaintiff has filed however orally opposed the application on the ground that in probate proceeding, a document i.e certified copy of ration card in which the name of defendant no. 3 had been CS No. 261/16 Page 1/4 shown as Khuswant Rai which is counter opposed by ld counsel for defendant no. 3 and submitted that the defendant no. 3 have Passport, Driving License, provisional certificate of Punjab University as well as Secondary certificate in which name of defendant no. 3 has been mentioned as Lakshay Babbar and attention has been drawn in respect to the content of joint WS of defendants in which para no. 7 of preliminary objection has been taken that, " That the suit filed against the wrong person. There is no Khushwant Rai. However, the name of the son of Sh. Surinder Kumar Babbar is Lakshay Babbar, hence the suit is not maintainable against Khushwant Rai".

3. Heard. File perused.

4. Since in the present case when the suit has been filed, plaintiff has filed only his address form alongwith index and memo of parties in which name of defendant no. 3 has been shown as Khuswant Rai but when defendants appeared, joint WS had been filed on their behalf alongwith documents filed on 02.06.2011, copy of WS had been supplied on the same date to the plaintiff.

5. As it is mentioned above in para no. 7 of the preliminary objection of WS, the fact qua wrong name of defendant no. 3 has been clarified by defendants which is duly supported with the affidavit and subsequently on 18.11.2011 issues had been framed and matter adjourned for plaintiff's evidence. Plaintiff examined himself by way of affidavit in which he reproduced all the contents of the plaint as such no objection has been taken qua the correct or incorrect name of defendant no. 3 as Lakshay Babbar instead of Khuswant Rai who has been detailed cross examined.

6. Thereafter defendant no. 3 also examined himself by way of affidavit while mentioning his name as Lakshay Babbar and defendant no. 3 Lakshay Babbar has been appearing regularly despite that no cross examination has been done on the point of correct or incorrect name of defendant no. 3 as Khushwant Rai instead of Lakshay Babbar.

7. Further, bare perusal of evidence of plaintiff by way of affidavit which is EX.PW1/1, the document which had been pointed out during the argument ie photocopy of certificate in which name of defendant no. 3 has been mentioned as Khushwant Rai had not been exhibited and during argument it is being inquired from the plaintiff in respect to the identity of the defendant no. 3, plaintiff fairly admitted, submitted and contended that the person who has been appearing being the defendant no. 3 is his nephew as such in my considered opinion the identify of the defendant no. 3 has not been disputed either by way of objection / argument or on the records. Here it is not out of mention to place here that in para no. 17 of the judgment Ld. Predecessor of this court has also mentioned the fact that the defendants have examined through Lakshay Babbar as DW-3 on behalf of all the defendants who is nothing but defendant no. 3 in the present suit, under the circumstances, document i.e. certified copy of the Ration Card can not be admitted in the evidence and relied upon as a tool, specially when defendant no.3 denied the fact qua the name of defendant no. 3 as Khushwant Rai and apprised that his correct name is Lakshay Babbar.

8. Since identity of the defendant no. 3 has not been disputed by the plaintiff, the present suit is being contested by the defendant no. 3 being representative CS No. 261/16 Page 3/4 himself as Lakshay Babbar instead of Kushwant Rai as clear from the record, as such in my considered opinion the earliest opportunity to dispute the name of the defendant no. 3 was available with the plaintiff when he has received the copy of written statement, upon receiving the evidence of defendant no. 3 namely Lakshay Babbar and lastly when he has cross examine the defendant no. 3 but failed to object the name of the defendant no. 3, identity of defendant no.3 and further, by allowing the present application no prejudice shall be cause to the plaintiff specially when he was admitted defendant no. 3 Lakshay Babbar as his Nephew. Accordingly, present application is allowed. The necessary amendment qua the name of defendant no.3 in the name of the parties of the judgment and name of the parties of the preliminary decree be carried out.

With these observations, the present application is disposed off accordingly.

Announced in the Open Court on 31.03.2016 (Rakesh Kumar­IV) Additional District Judge­10 West District, THC CS No. 261/16 Page 4/4