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RIVIGN
%10.8.2011
Present: Ms. Suman Kapoor, Advocate for the petitioners.
Mr.Vivek Kumar, Advocate for respondent.
+CM(M)No.905/2007 & CM No.11922/2011
*
The order impugned before this Court is the order dated
23.12.2005 vide which the application filed by the defendant under
Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') seeking amendment of the written
%10.8.2011
Present: Ms. Suman Kapoor, Advocate for the petitioners.
Mr.Vivek Kumar, Advocate for respondent.
+CM(M)No.905/2007 & CM No.11922/2011
*
The order impugned before this Court is the order dated
23.12.2005 vide which the application filed by the defendant under
Order 6 Rule 17 of the Code of Civil Procedure (hereinafter referred to as 'the Code') seeking amendment of the written
statement to incorporate her counter claim had been dismissed.
The court was of the view that the counter claim cannot be entertained as the written statement has already been filed; further since the written statement already stool filed, issues had been framed and the matter was already fixed for evidence, the application was belatedly filed.
Record shows that the present suit is a suit for injunctibn which has been filed by the plaintiff. She has prayed that a decree of permanent injunction be passed in her favour and against the defendants retraining them from dispossessing the plaintiff, selling and alienating the suit property i.e. property bearing No.F-16, Mansarover Park, Shahdara, Delhi. Her contention is that her father-in-law Gopal Singh in terms of a will dated 05.12.2000 had bequeathed this property in her favour. Defendants contested the
2011:DHC:8829 suit; the defendants are also the two sons and two daughters-in-law of the deceased Gopal Singh. Written statement had been filed by them on 17.02.2005; they denied that any will had been executed by the deceased in favour of the plaintiff. Issues had been framed on 18.8.2005. Present application seeking amendment in the written statement and incorporating the counter claim had been filed on 15.10.2005. Learned counsel for the petitioner has placed reliance upon a
The court was of the view that the counter claim cannot be entertained as the written statement has already been filed; further since the written statement already stool filed, issues had been framed and the matter was already fixed for evidence, the application was belatedly filed.
Record shows that the present suit is a suit for injunctibn which has been filed by the plaintiff. She has prayed that a decree of permanent injunction be passed in her favour and against the defendants retraining them from dispossessing the plaintiff, selling and alienating the suit property i.e. property bearing No.F-16, Mansarover Park, Shahdara, Delhi. Her contention is that her father-in-law Gopal Singh in terms of a will dated 05.12.2000 had bequeathed this property in her favour. Defendants contested the
2011:DHC:8829 suit; the defendants are also the two sons and two daughters-in-law of the deceased Gopal Singh. Written statement had been filed by them on 17.02.2005; they denied that any will had been executed by the deceased in favour of the plaintiff. Issues had been framed on 18.8.2005. Present application seeking amendment in the written statement and incorporating the counter claim had been filed on 15.10.2005. Learned counsel for the petitioner has placed reliance upon a
JUDGMENT
of the Apex Court reported in AIR 1997
SC 3985 Smt.Shanti Rani Das Dewan/ee Vs. Dinesh Chandra Day to support her submission that if the cause of action is continuing the counter claim can be entertained even after the filing of the written statement. The counter claim cum amended written statement which has been filed along with the application under
Order 6 Rule 17 of the Code has been perused. By way of this counter claim the defendants are seeking declaration that the will dated 05.12.2000 executed by Gopal Singh be declared null and void and a decree of possession be passed in favour of the defendants on the ground that the defendants have now acquired their interest in the suit property by virtue of documents executed in favour of the defendant no.3 on 02.9.2003 for a consideration of
'1,00,000/- i.e. Power of Attorney and agreement to sell which have been executed by the husband of the plaintiff and the other defendants. This plea set up in the counter claim is contrary to the plea set up in the earlier written statement wherein the defendants have stated that they along with the plaintiff are jointly entitled to the property; all of them are natural heirs. This has been specifically stated in para 5 of the first written statement.1
The law is very clear. Amendment is not permissible if it changes the nature of the suit or the defendant by wa,i of amendment is seeking to withdraw any admission which has been made by him earlier. In the first written statement the defendants had clearly stated that the defendants along with the plaintiff, are jointly entitled to the suit property as all of them are the natural heirs of the deceased; by the amendment and by seeking to incorporate the counter claim the whole nature of the suit is deemed to be changed; the defendants have now set up a contrary plea; the contrary plea being that defendant no.3 has purchased this property for a valuable consideration from the husband of the plaintiff. Such a recourse is not permissible. Impugned order in no manner suffers from any illegality.
Dismissed.
INDERMEET KAUR, J.
• AUGUST 10, 2011. nandan /
SC 3985 Smt.Shanti Rani Das Dewan/ee Vs. Dinesh Chandra Day to support her submission that if the cause of action is continuing the counter claim can be entertained even after the filing of the written statement. The counter claim cum amended written statement which has been filed along with the application under
Order 6 Rule 17 of the Code has been perused. By way of this counter claim the defendants are seeking declaration that the will dated 05.12.2000 executed by Gopal Singh be declared null and void and a decree of possession be passed in favour of the defendants on the ground that the defendants have now acquired their interest in the suit property by virtue of documents executed in favour of the defendant no.3 on 02.9.2003 for a consideration of
'1,00,000/- i.e. Power of Attorney and agreement to sell which have been executed by the husband of the plaintiff and the other defendants. This plea set up in the counter claim is contrary to the plea set up in the earlier written statement wherein the defendants have stated that they along with the plaintiff are jointly entitled to the property; all of them are natural heirs. This has been specifically stated in para 5 of the first written statement.1
The law is very clear. Amendment is not permissible if it changes the nature of the suit or the defendant by wa,i of amendment is seeking to withdraw any admission which has been made by him earlier. In the first written statement the defendants had clearly stated that the defendants along with the plaintiff, are jointly entitled to the suit property as all of them are the natural heirs of the deceased; by the amendment and by seeking to incorporate the counter claim the whole nature of the suit is deemed to be changed; the defendants have now set up a contrary plea; the contrary plea being that defendant no.3 has purchased this property for a valuable consideration from the husband of the plaintiff. Such a recourse is not permissible. Impugned order in no manner suffers from any illegality.
Dismissed.
INDERMEET KAUR, J.
• AUGUST 10, 2011. nandan /