Kalpana & Anr v. Shiam Beharilal Sharma & Ors

1. The present petition has been filed under ARicle 227 of the Constitution ofIndia read with Sections 151 & 115 ofCPC against the order dated August 13, 2012 whereby the applications of the petitioners i.e. application under Order 6 PviileZ?, application under Order 8 Rule 1 (A) VJ CPC, application under Section 114 and Order 47 Rule 1 r/w Section 151 CPC and application under Order18 Rule[7] and under Section 114 and Order

2. Suit was filed by the respondents for possession and recovery of damages user charges in respect of the portion with the petitioner herein, comprising oftwo rooms, small malce shift tin shed, kitchen, rear portion, common latrine-bathroom on the ground floor at H. No. 141, Deepali, Pitampura,Delhi. CM(M)No.1073/2012 Page 1 of[4] 2013:DHC:7596 ] xJ'

3. In the course ofthe proceedings, while the respondents had examined witnesses, the petitioners' evidence was closed due to non-appearance of their counsel, vide order dated July 10, 2012. An application filed to allow them to lead evidence was also disallowed by the order dated August 13,

2012.

4. The petitioners had moved an application under Oder 6 Rule 17 CPC on July 16, 2012 for amendment of the written statement to incorporate declaration-cum-agreement document dated July 12,2009 executed in their favour by the respondent no.l.By virtue ofthe said document,it was alleged that the respondent had sold the said property to the petitioners and was ready to execute the registered title documents/sale deed in their favour. However since the same was neither in the knowledge nor in the possession of the petitioners, it could not be produced earlier and the same were received from one Smt.Bina Sharma(mausi ofthe petitioner).

5. The application was dismissed by the learned trial court by the order dated August 13,2012 observing that the alleged document revealed at that the same had been gottyped on blank signed papers and the spacing between the lines was not imifonn in the entire document. Even otherwise, in the affidavit of Smt. Bina Sharma, she denied the possession of any such documentas well as giving ofany such documentto the petitioners.

6. It was observed that since it was the final stage, such amendments could not be allowed especially in view of the previous conduct of the petitioners whereby time and again attempts were made to delay the disposal ofthe suit

7. The present petition is filed on the ground mainly that illegality had been committed by the learned trial court by giving observations on the CM(M)No.1073/2012 Page 2of[4] \ imerits ofthe proposed document and by not allowing the amendments so prayedforlettingthesametocomeonrecord.

8. The learned court below, while dismissing the application of petitioner,has passedthereasoned order. The said reasons are recordedin para6oftheimpugnedorder. Therelevantextractisreproducedbelow: "The matter is at the stage of final arguments and no amendment at tins stage can be legally allowed especially considering that the plea taken by the defendants regarding discovery of document at the later stage is falsified from the affidavit of Smt.Bina Sharma. Perusal of record reveals that defendants have been delaying the matter on the one the other. The plaintiff was examined in chief on 23.10.20lU butthe defendants delayed the matter on pretextorthe otherfor cross examination of PW-1. On 23.10.2010 the matter was adjourned for cross examination onthe request made on behalt of defendants since his counsel was not available. Thereafter on 9.11.2010 also PW-1 was partly cross examined and Ins frirther cross examination was deferred on the request of Id. Counsel for defendants. Thereafter on 17.2,2011 also adjournmenthadbeen,soughtonbehalfofthe defendantsontl^ ground that their coimsel was busy in Saket court. Plamtiit evidence was closed on 24.2.2011 and the matter was listed for DE on 9.3.2011. On 9.3.2011 no evidence wasfiled on behalf ofdefendant due to which matter was adjourned for 25.3.2011. On 25.3.2011 again no evidence was recorded and instead of examining Dws an application U/o 6 R 17 CPC for seeking amendment in w/s was moved on behalf of defendants. Thereafter on 10.5.2011 adjournment had been sought on behalfofdefendants onthe groundthatthey would changetheir counseland theircounselwillbe available after25.5.2011. The application moved onbehalfofdefendantsU/o6R 17CPCwas finally dismissed on 18.8.2011. Itis pertinentto mention herein thaton 16.8.2011 Id.Predecessor ofthis courthasobservedthat attempts were being made time and again to delay the disposal ofthe suit and last opportunity was given for arguments on the application U/o6R 17 CPC on 18.8.2011. On 18.8.2011 also Id. Counsels for defendant did not appear though there is CM(M)Ne.1073/2012 ^ V Vakalatnama of two defence counsels on the record The application U/o 6 R 17 CPC had,to be disposed off by d. Predecessor of tliis court on merits without hearing the arguments on behalf of defendants which leads the inference tliat the amendment application on 25.3.2011 had been moved only with anintentionto delaythe case."

9 Afterhaving gonetliroughtherecord,thisCourtisofthe viewthatthe learned trial court has rightly rejected the application under Order VI,Rule 17 CPC for amendment ofwritten statement. There is no infirmity in the impugned order.

10. The petition is accordingly dismissed. No costs. SIP^GH) JUDGE