Sital Dass Jain and Another v. Sushma Jain and Others

1. Whether Reporters of Local papers may NO be allowed to see the Judgment?

2. To be referred to the Reporter or not? NO

3. Whether the judgment should be NO reported in the Digest?

JUDGMENT

1. The defendants have filed this application for amendment of the issues under Order XIV Rule 5 of the Code of Civil Procedure. The plaintiffs have filed the reply to the application. 2011:DHC:3397

2. The plaintiffs have filed this suit for possession, mesne profits and permanent injunction in respect of the property bearing No.49 Hanuman Road, Connaught Place, New Delhi.

3. The plaintiffs are the parents of defendant No.1. Defendants No.2 to 5 are the husband and children of defendant No.1.

4. The defendants have filed this application seeking additional issues inter alia whether the suit property was purchased by the plaintiffs out of the self-acquired fund and whether defendant No.1 is a coparcener in the suit property.

5. Vide order dated 12th September, 2008, this Court observed that the defence of defendant No.1 in the written statement that the suit property was a HUF property was ambiguous and, therefore, defendant No.1 was examined on oath under Order X of the Code of Civil Procedure before framing of issues on 15th December, 2008. After recording the statement of defendant No.1, this Court observed that from the statement of defendant No.1, the only defence of the defendants to the plaintiffs claim for possession and mesne profits that the suit property was ancestral and HUF property does not appear to have been made out. It was further held that the defendants otherwise have no claim to the suit property, title whereof is admittedly in the name of the plaintiff. This Court thereafter framed the issues on 15th December, 2008. Issue No.1 was treated as a preliminary issue. This Court further observed that no other issue arises or is pressed.

6. Vide order dated 28th October, 2010, this Court directed the defendants to first lead the evidence as the onus of preliminary issue No.1 was on the defendants. The case is pending at the stage of cross-examination of defendant No.1.

7. This Court framed the issues on 15th December, 2008 after recording the statement of defendant No.1 under Order X of the Code of Civil Procedure and holding that the only defence of the defendants that the suit property was ancestral and HUF does not appear to be made out. This Court has framed a comprehensive issue as to whether the defence of the defendants coupled with the statement of defendant No.1 recorded under Order X of the Code of Civil Procedure discloses any right, title or interest of defendant No.1 in the suit property.

8. The aforesaid order dated 15th December, 2008 has attained finality having not been challenged by any of the parties.

9. This Court is of the opinion that no additional issue arises in this matter in view of the findings of this Court recorded in the order dated 15th December, 2008 and the statement of defendant No.1 recorded by this Court on 15th December, 2008.

10. There is no merit in the application which has been filed just to delay and defeat the trial. In the facts and circumstances of this case, the application is dismissed with cost of Rs.10,000/- to be paid by defendant No.1 to the plaintiff within a period of two weeks. J.R. MIDHA, J. JULY 08, 2011