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WM
% 27.7.2011
Present: Mr. O.P. Sharma, Advocate for the petitioner.
+CM No. 13660/2011 in CM (M) No. 856/2011
* Allowed, subject to just exceptions.
CM (M) No. 856/2011
The impugned order is order dated 16.05.2011 vide which the application filed by the plaintiff under Order 6 Rule 17 of the
Code of Civil Procedure (hereinafter referred to as 'the Code') seeking amendment of plaint had been dismissed. The contention of the plaintiff is that the present suit is a suit for damages; his contention was that the plaintiff was in possession of two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor Property No. 17-B130 Desh Bandhu Gupta Road, New Delhi as depicted in red colour in site plan (pg. 112 of the paper book); possession of said property had been sought. In defence the defendant has stated that he has become the owner by adverse possession and he is in continuous and uninterrupted possession of the aforenoted portion of the suit property i.e. two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor since the last several years. The contention of the plaintiff is that in May 2010 when he had come to Delhi, he learnt that the defendant has trespassed into two other rooms on the first
2011:DHC:8817 floor; he accordingly sought amendment of the plaint seeking amendment to the effect that the entire first floor including those two rooms (as depicted X & xl in the new site plain proposed to be filed along with the amended plaint) (pg. 113 of the paper book) be permitted to be placed on record. This amendment has been declined by the impugned order dated 16.05.2011.
Admittedly, this application has been filed on 21.09.1992.
The written statement had been field on 30.10.1992; the entire defence of the defendant stood disclosed and he had in his written f statement clearly and categorically averred that he has become the owner by way of adverse possession of two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor of the suit property.
Proviso of Order 6 Rule 17 of the Code clearly states that an amendment can be allowed only till the time of settlement of issues; thereafter the delay in filing the application seeking amendment has to be clearly explained; there was no "due diligence" on the part of the defendant in not preferring his application on any earlier date; in fact this has also not been averred.
The impugned order suffers from no infirmity; it has clearly recorded that the claim of damages pressed by the plaintiff can be decided in the suit for damages already filed by them. The
(EEE;III:IIIII:: amendment if allowed would in fact be building up a new case as the plaintiff by way of this amendment now seeks to introduce a fact which was earlier not there; i.e. that the entire suit property had not been given to the defendant and two rooms were still in his possession and the defendant has taken forcible possession of these two room. This is not permissible and not the purport of an amendment.
Dismissed.
INDERMEET KAUR, J.
JULY 27, 2011 rb
WM
% 27.7.2011
Present: Mr. O.P. Sharma, Advocate for the petitioner.
+CM No. 13660/2011 in CM (M) No. 856/2011
* Allowed, subject to just exceptions.
CM (M) No. 856/2011
The impugned order is order dated 16.05.2011 vide which the application filed by the plaintiff under Order 6 Rule 17 of the
Code of Civil Procedure (hereinafter referred to as 'the Code') seeking amendment of plaint had been dismissed. The contention of the plaintiff is that the present suit is a suit for damages; his contention was that the plaintiff was in possession of two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor Property No. 17-B130 Desh Bandhu Gupta Road, New Delhi as depicted in red colour in site plan (pg. 112 of the paper book); possession of said property had been sought. In defence the defendant has stated that he has become the owner by adverse possession and he is in continuous and uninterrupted possession of the aforenoted portion of the suit property i.e. two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor since the last several years. The contention of the plaintiff is that in May 2010 when he had come to Delhi, he learnt that the defendant has trespassed into two other rooms on the first
2011:DHC:8817 floor; he accordingly sought amendment of the plaint seeking amendment to the effect that the entire first floor including those two rooms (as depicted X & xl in the new site plain proposed to be filed along with the amended plaint) (pg. 113 of the paper book) be permitted to be placed on record. This amendment has been declined by the impugned order dated 16.05.2011.
Admittedly, this application has been filed on 21.09.1992.
The written statement had been field on 30.10.1992; the entire defence of the defendant stood disclosed and he had in his written f statement clearly and categorically averred that he has become the owner by way of adverse possession of two rooms on the ground floor, four rooms, two stores, on latrine, one kitchen on the first floor of the suit property.
Proviso of Order 6 Rule 17 of the Code clearly states that an amendment can be allowed only till the time of settlement of issues; thereafter the delay in filing the application seeking amendment has to be clearly explained; there was no "due diligence" on the part of the defendant in not preferring his application on any earlier date; in fact this has also not been averred.
The impugned order suffers from no infirmity; it has clearly recorded that the claim of damages pressed by the plaintiff can be decided in the suit for damages already filed by them. The
(EEE;III:IIIII:: amendment if allowed would in fact be building up a new case as the plaintiff by way of this amendment now seeks to introduce a fact which was earlier not there; i.e. that the entire suit property had not been given to the defendant and two rooms were still in his possession and the defendant has taken forcible possession of these two room. This is not permissible and not the purport of an amendment.
Dismissed.
INDERMEET KAUR, J.
JULY 27, 2011 rb
JUDGMENT