Delhi District Court
Sh. Jagmohan vs Smt. Sushma on 8 January, 2015
IN THE COURT OF MS. KADAMBARI AWASTHI CJ 02 (CENTRAL),TIS HAZARI COURTS, DELHI Suit No : 82/12 In the matter of : Sh. Jagmohan ...........Plaintiff VERSUS Smt. Sushma ...........Defendant Dated : 08.01.2015 Order By this order I shall dispose off an application under Order 6 Rule 17 CPC moved on behalf of defendant seeking amendment of written statement.
It is submitted by the applicant/defendant that the present suit has been filed by the plaintiff seeking a relief of injunction and recovery of possession and mesne profit etc against the defendant.
It is submitted that due to the inadvertent on the part of the previous counsel of the defendant certain material facts could not find mention in the WS. It is submitted that when the defendant engaged the present counsel who after going through the case file came to know that certain facts could not found mention which are Suit No : 82/12 Page 1 of 6 of vital nature, hence the defendant wants to amend the written statement. It is stated that the defendant wish to add the objection in the WS to the effect that the present suit is bad for nonjoinder of the necessary parties is the plaintiff is not made party to the children of the defendant in the present suit.
It is also submitted that the plaintiff has not disclosed before the court that he has filed a Probate Petition for the alleged Will dt. 20.05.1994 claimed to be executed by the Lt. Sh. Karan Singh in favour of plaintiff. There in the Probate Petition the plaintiff has not made all the LR's party and concealed material fact no only from the present court but also from Probate court as well.
It is stated that the children of Sh. Naveen Kumar were not made party in the Probate Petition and the plaintiff has manipulated the service and by misleading the court succeeded in obtaining the Probate in his favour. It is stated that the plaintiff has filed the present suit for possession on the basis of Probate of Will and thereafter, it is necessary that all these facts should found mention mention in the written statement which are quite vital in the fact & circumstance of the case in hand.
It is further stated that the plaintiff has also challenged the Probate Petition by invoking section 263 of Indian Seccession Suit No : 82/12 Page 2 of 6 Act before the competent court of Law which is pending adjudication. It is stated that the plaintiff has been concealing the material facts from the court and has not came to the court court with clean hands. It is also stated that in other litigation pending interse the parties and with others also reflected that the defendant and the children's of the defendant are not made party in the present suit as well as in the Probate case, which might have a bearing upon the present case as well.
A prayer is made to incorporate all these facts in the WS in the interest of justice.
Reply of the said application is already on record. The plaintiff/non applicant has taken the preliminary objection to the effect that the application is abuse of process of law and the same has been moved to fill up the lacuna on the part of the defendant.
It is stated that the facts mention by the defendant in the application are very well in the knowledge of the defendant at the time of filing of WS, hence, the application deserves to be dismissed. It is stated that now the trial has begun and the case is fixed for plaintiff evidence. Hence, the application under reply is not maintainable and the same is liable to be dismissed.
Suit No : 82/12 Page 3 of 6In reply of merits it is denied that due to the inadvertents of the part the previous counsel of the defendant the above said facts relating to the Probate Petition etc. could not found mention in the WS and the present counsel for defendant after going through the case file came to know that certain material facts was not mention by the earlier counsel and hence, he moved the present application.
It is submitted that the children of the defendant are not the necessary party in the present suit hence, it is denied that the suit of plaintiff is not maintainable & the same is liable to be dismissed. It is denied in toto that the plaintiff did not implead the legal heirs of the defendant as mention in the application since they are not the necessary party in the Probate Petition. It is also denied that the plaintiff has manipulated the service of the notice/summons upon husband of the defendant namely Sh. Roshan Lal and succeeded in getting Probate in his favour by manipulation.
All the averment and assertion made against the plaintiff are denied in toto and it is submitted that the defendant has no right to move an application under Order 6 Rule 17 CPC at her own Will and desire since it is not a matter of right. It is submitted that the purpose of the application is to delay the proceedings of the case Suit No : 82/12 Page 4 of 6 and to grab the property of the plaintiff.
A prayer is made to dismissed the application of the defendant with heavy cost.
Heard. Perused.
The various document filed along with present application by the defendant shows that the LR's of the defendants are not made the parties which were impleaded in the other litigation. However, it is pertinent to mention that the plaintiff is master of his lis and he may choose as to whom he wish to made a party in the suit. Though an equal right also accrue to the defendant in case when the plaintiff has not made all the LR's of the defendant a party in the suit. Defendant has taken this to be a vital objection in the present facts and circumstances of the case. It is already argued by the defendant that she is an illiterate widow lady and hence, it was the duty of the her counsel to take care of her interest & to advice her properly & to in corporate all the relevant fact of litigation took place earlier. In which he has fail. The short coming of the counsel could result in a hardship to the client without any fault on her part.
In my opinion the desired amendment in the WS would not change the nature of defence taken by the defendant further no Suit No : 82/12 Page 5 of 6 admission has been withdrawn by the defendant by way of the present amendment in the WS and in my view no prejudice would be caused to the other party. If the amended is allowed. It is incumbent upon the plaintiff to come to the court with clean hands and to plead the necessary & relevant facts involved in the dispute before the court. This amendment would help the court to adjudicate the controversy between the parties fully & in an effective manner.
The plaintiff has not disclosed the various facts with relation to the Probate Petition and other simultaneous litigation going on between the parties. The conduct of keeping mum with respect to these facts are not proper in the part of the plaintiff. The court is of the view that the desired amendment would not cause any prejudice to the plaintiff as the facts pertaining to the litigation between the parties are matter of record.
For the reason stated above the application in hand stand allowed. The amended WS is taken on record.
Accordingly, in the interest of justice an opportunity to file fresh replication is given to the plaintiff.
Now come up for further proceedings on 12.03.2015.
(KADAMBARI AWASTHI) Civil Judge02/Central/Delhi 08.01.2015 Suit No : 82/12 Page 6 of 6