RAVINDER SINGH PRATAP & ORS. vs INDERJEET SINGH & ORS.

2024-02-07 Information

$~18

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 07th February, 2024
+ CS(OS) 258/2019
RAVINDER SINGH PRATAP & ORS. ….. Plaintiffs
Through: Mr. Sanjiv Bahl, Mr. Eklavya Bahl, Ms. Apoorva Bahl & Mr. Pawas Agarwal, Advocates.

versus

INDERJEET SINGH & ORS. ….. Defendants
Through: Mr. Debendra Kumar Sabat & Ms. Sharmila Sabat, Advocates for D-1.
Mr. A.K. Soni, Advocate for D-2, 3a to 3c.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 7185/2022 (u/O IX Rule 7 r/w Section 151 of CPC, 1908)
1. By way of present application, the applicants/defendants seek to recall/set aside the ex parte Order dated 18.10.2019, whereby the defendant Nos. 1, 2 and 3 were proceeded ex parte.
2. The present application had been allowed vide Order dated 14.03.2023 and the ex parte Order dated 18.10.2019 passed against the aforesaid defendants stood set aside, though there is no formal mention of the present Application No. I.A. 7185/2022 in the Order dated 14.03.2023.
3. Accordingly, the present application stood disposed of vide Order dated 14.03.2023.

I.A. 9177/2023 (u/S 8(1) r/w Section 151 of CPC, 1908 and Section 5 of the Limitation Act, 1963)

4. By way of present application, the applicant/defendant No. 1 seeks condonation of 145 days delay in filing the Written Statement.
5. Learned counsel for the non-applicants/plaintiffs submits that he has no objection if the present application is allowed.
6. Learned counsel for the non-applicants/plaintiffs further submits that vide Order dated 14.03.2023, the costs of Rs. 20,000/- were imposed on the applicant/defendant No. 1 while allowing the Application Nos. I.A. 7186/2022 and I.A. 7187/2022 seeking condonation of delay in moving the Application No. I.A. 7185/2022 under Order IX Rule 7 of the Code of Civil Procedure, 1908, but the said costs have not yet been deposited by the applicant/defendant No. 1.
7. For the reasons and grounds stated in the present application as well as no objection given on behalf of the plaintiff, the application is allowed, the delay of 145 days in filing the Written Statement is condoned and the Written Statement is taken on record, subject to costs of Rs. 10,000/- to be paid to the plaintiffs within 15 days, failing which, the Written Statement shall be taken off the record.

I.A. 9396/2023 (u/S 151 of CPC, 1908)
8. By way of present application, the applicant/defendant No. 1 seeks waiver of costs of Rs. 20,000/- imposed vide Order dated 14.03.2023.
9. No grounds made out for waiver of the costs of Rs. 20,000/-.
10. Accordingly, the present application is dismissed.

I.A. 9111/2023 (u/O I Rule 10(2) r/w Section 151 of CPC, 1908)
11. By way of present application, the applicant/defendant No. 1 seeks deletion of his name from the array of the parties.
12. After some arguments, learned counsel for the applicant/defendant No. 1 seeks permission to withdraw the present application as he does not wish to press.
13. Accordingly, the applicant/defendant No. 1 is permitted to withdraw the present application.
14. The application is disposed of as not pressed.

I.A. 16279/2021 (u/O VI Rule 17 r/w Section 151 of CPC, 1908)
15. By way of present application, the applicant/plaintiffs seek amendment of the present Plaint.
16. It is submitted in the application that a suit for Possession, Damages/Mesne Profits has been filed in respect of First Floor of the property bearing No.3072/2L, Gali No.10, Ranjeet Nagar, New Delhi, which is pending trial before this Court. The plaintiffs on the basis of registered Will dated 11.06.2004 executed by late Shri Tarsem Singh, were claiming that the suit property had been bequeathed to the plaintiffs in the manner described therein.
17. The defendant No.2 and 3 in their respective Written Statement have denied the execution of the Will dated 11.06.2004 and have taken a stand that Late Shri Tarsem Singh had given an amount of Rs.20 lakhs to Shri Rana Pratap, the father of the plaintiffs towards his share and that Shri Rana Pratap was left with no right, title in the suit property and consequently the plaintiffs who are claiming a share in the property through Shri Rana Pratap, have no right in the suit property.
18. Defendant Nos.2 and 3, however, have admitted that the property was initially owned by Shri Tarsem Singh, but have denied the execution of the Will by Shri Tarsem Singh during his life time. In view of the defence set up by the defendant in the Written Statement, it has become imperative for the plaintiff to amend the plaint to also include the relief of partition in the alternative.
19. The paragraph 11 has sought to be added to deny the stand of the defendants that Rs.20 lakhs had been paid to the father of the plaintiffs towards his share. Likewise, the plaintiff intends to amend the paragraph 12 describing cause of action, to claim that the relief of partition has arisen on 19.02.2020, when defendant No.2 and 3 in their Written Statement had denied the execution of the Will by Late Shri Tarsem Singh. The plaintiff correspondingly seeks to amend paragraph 13 to include the valuation for the relief of partition and also to amend the Prayer paragraph to seek in the alternative relief of partition of the suit property and appointment of Local Commissioner to suggest the mode of partition.
20. The defendant No.1 in the reply to the application has asserted that the proposed amendments cannot be permitted as it changes the nature of the suit from one of possession to the suit for partition. Moreover, the plaintiff had never named and are even not aware of who was in possession of the First Floor of the suit property, as claimed by them.
21. The answering defendant has categorically stated that he has nothing to do with the issues involved in the suit property i.e. the First Floor and is the absolute owner and in possession of the Ground Floor of the suit property. Moreover, he has been seeking his deletion from the array of parties as he claims to have been unnecessarily dragged into this litigation. It is submitted that the present application is only an afterthought and is liable to be dismissed.
22. Defendant Nos.2 and 3 (a) to (d) in their reply have taken a similar defence that the proposed amendment shall change the nature of the suit. Moreover, there is no cause of action for claiming partition, since it is denied that Shri Tarsem Singh had executed a Will dated 11.06.2004 and the averments made in the Written Statement cannot be made a basis for amendment in the plaint.
23. Submissions heard.
24. Admittedly, the suit property was originally purchased by Shri Tarsem Singh, the grandfather of the plaintiffs (who are the children of Shri Rana Pratap). The proposed amendments have been necessitated by the denial of the defendants to the execution of the Will by Shri Tarsem Singh.
25. The plaintiffs had claimed their relief of Possession on the basis of the Will and testament dated 11.06.2004 of Late Shri Tarsem Singh. However, the defendants have denied the execution of the Will and in case the Will is not proved, the plaintiffs would be entitled to claim possession only in respect of their share through intestate succession, implying that they would get their share only by way of partition.
26. The other amendments that sought are in paragraph 12, 13 and the prayer paragraph are only consequent to seeking the alternate relief of partition.
27. It is observed that the aforesaid amendments have become imperative, considering the defence taken by the defendants and the proposed amendments do not alter the nature of the suit.
28. The amendment application is, therefore, allowed.
CS(OS) 258/2019
29. The amended plaint if not filed, be filed within four weeks.
30. List before learned Joint Registrar for completion of pleadings on 18.03.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 07, 2024
va

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