Delhi District Court
Vipin Kumar Tyagi vs Surender Shekhawat & Ors on 4 November, 2015
ID No.02401C088122008
IN THE COURT OF DR. VIJAY KUMAR DAHIYA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CS No.112/2015
Vipin Kumar Tyagi ..........Plaintiff
versus
Surender Shekhawat & Ors. ........Defendants
O R D E R :
1. By this order, I shall dispose of the application under Order 6 Rule 17 of Code of Civil Procedure, 1908 (CPC) moved by the defendant.
2. Brief facts for disposal of this application are like this. Plaintiff filed a suit for possession and permanent injunction against the defendant alleging therein that he became owner in possession of the suit property through sale documents dated 28.01.2014. It is further alleged that plaintiff was dispossessed on 3rd of March, 2014. A criminal complaint filed by the plaintiff against the defendant is pending and the present suit has been filed.
3. The applicant/defendant filed written statement stating therein that there is no cause of action in favour of plaintiff. The plaintiff has forged and fabricated antedated sale documents. It is denied that the suit property was purchased by the plaintiff through sale document dated 28.01.2014. the 1/4 Vipin Kumar vs. Surender Shekhawat defendant no.2 has purchased the suit property by virtue of title document dated 15.02.2014 which were duly registered with notorised on 04.03.2014. The present application has been moved by the defendant/applicant on the ground that previous counsel has not mentioned the complete facts in proper manner in the WS and want to amend the WS, by first of all adding preliminary objection regarding the date of defendant's possession over suit property. The applicant/defendant want to add one line in para 6 of the preliminary objection. The applicant/defendant want to make amendments in the last line of the para 2 of reply on merits regarding the date of defendant's possession over suit property.
4. Reply to this application has been filed by the nonapplicant that the applicant/defendant cannot take advantage of his own wrongs and he has no right to completely change their written statement, which is not admissible under law. It is further submitted that the applicant/defendant want to incorporate the new facts in the WS that the suit property was purchased by the applicant/defendant from the previous vendor, Sh. Rajender Kumar in the month of April 2012 but on that date Sh. Rajender Kumar was not the owner in possession of the suit property, as the said Rajender Kumar purchased the suit property on 01.04.2013. Therefore, the question of handing over of possession of suit property to the defendant no.2 in April, 2012 to the defendant no.2 does not arise. Therefore, this application deserves to be dismissed.
5. It has been contended by counsel for the applicant/defendant that the amendment sought to be incorporated in the written statement are not going to change the nature of the defence of the defendant nor it 2/4 Vipin Kumar vs. Surender Shekhawat tantamounts to withdrawal of admission, if any, by the defendant. The amendment sought are for removal of contradiction and confusion raised in written statement which was never intended to be in admission. Therefore, these amendments are very much necessary for the just decision of the case. In this regard he has relied upon "Sushil Kumar vs. Manoj Kumar" V (2009) SLT page no.1.
6. Per contra Ld. Counsel for the nonapplicant had contended that the defendant/applicant want to withdraw his admission regarding date of his possession over the suit property, which as per averment in the written statement the date of possession of defendant no.2 is of year 2014 whereas by way of amendment he want to plead that he was put in possession of the suit property from 24.04.2012. therefore, such admission cannot be withdrawn by the defendant.
7. I have heard ld. Counsel for the parties and have gone through material available on record.
8. It may be noted that the Hon'ble Supreme Court in Sunil Kumar (supra) has observed that an admission made by the party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. But it is relevant to mention here that the Hon'ble Supreme Court in "Heera Lal vs. Kalyan Mal" AIR 1998 SC 618 has observed that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which could cause him 3/4 Vipin Kumar vs. Surender Shekhawat irretrievable prejudice.
9. Considering the entire material on record, and perusal of the written statement and the proposed amendment, it transpired that defendants have pleaded that they were put in possession in terms of the sale documents dated 24.02.2014 whereas by way of proposed amendment the defendants want to prepone the date of alleged possession of defendants over the suit property from 2014 to April 2012. There is no document on record placed by the defendants that defendant no.2 was put in possession by the vendor Sh. Rajender Kumar in the year 2012, even in the sale documents executed by vendor Rajender Kumar in favour of the defendant no.2, there is no such averment that defendant no.2 has been put in possession of the suit property in the year 2012. This clearly indicate that defendants want to introduce a new case regarding date of possession over the suit property, which is not permissible. Therefore, this application being devoid of merits is hereby dismissed and disposed of accordingly.
Announced in Open Court today, (Dr. Vijay Kumar Dahiya) i.e. on 4th day of November, 2015. ADJ(Central07/Delhi 04.11.2015 4/4 Vipin Kumar vs. Surender Shekhawat