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2012 DIGILAW 2129 (RAJ)

Bhagwan Sahai v. Smt. Ratan Kumari

2012-10-25

ALOK SHARMA

body2012
JUDGMENT 1. - This petition has been filed against the order dated 23.07.2012, passed by the learned Additional District and Sessions Judge (Fast Track) No.2, Jaipur Metropolitan, Jaipur dismissing the petitioner-defendant's (hereinafter 'the defendant') application under Order 6 Rule 17 Civil Procedure Code read with Section 151 Civil Procedure Code for amendment of the written statement in suit No.177/2009 laid by the respondent-plaintiff, Ratan Kumari (hereinafter 'the plaintiff') for partition of a property situate at Jaipur in the name of her late father Hanuman Sahai to which she along with the defendants was entitled. 2. It is an admitted fact that the property situate at Jaipur i.e. house No.E-25, Lajpath / Gokhley Marg, C-Scheme, Jaipur belonged to late Hanuman Sahai, father of the plaintiff and the defendant herein, who expired on 30.04.1986. As a heir of the deceased Hanuman Sahai, the plaintiff Ratan Kumari filed a suit for partition qua the Jaipur property on 23.10.1991 which suit is presently pending in the Court of the Additional District Judge (Fast Track) 2, Jaipur Metropolitan, Jaipur. Written statement to the plaint was filed by the defendant on 21.07.1992. Subsequent to framing of the issues, the suit is presently pending for defence evidence. 3. At this stage, the defendant filed an application under Order 6 Rule 17 Civil Procedure Code for amendment in the written statement on 09.12.2011 approximately 20 years since the filing of the suit for partition stating that another property i.e. house No.1 Kha 6, Pratap Nagar, Manu Marg, Alwar standing in the plaintiff's name had been purchased by the plaintiff Ratan Kumari through the funds provided by her late father Hanuman Sahai. It was submitted that in this view of the matter, the said house partook the character of late Hanuman Sahai's property and was liable to be included in the suit for partition pending before the trial court and the defendant entitled to half share in the said Alwar property as one of the two heirs of late Sh. Hanuman Sahai. In the reply to the application under Order 6 Rule 17 Civil Procedure Code, it was stated by the plaintiff that the amendment sought was wholly irrelevant for the adjudication of the issues in the suit for partition laid by her with regard to house No.E-25, Lajpath / Gokhley Marg, C-Scheme, Jaipur. Hanuman Sahai. In the reply to the application under Order 6 Rule 17 Civil Procedure Code, it was stated by the plaintiff that the amendment sought was wholly irrelevant for the adjudication of the issues in the suit for partition laid by her with regard to house No.E-25, Lajpath / Gokhley Marg, C-Scheme, Jaipur. It was submitted that the Alwar house which was sought to be included in the suit for partition stood absolutely to the name of the plaintiff without anything more and that it was not in any manner whatsoever property in which her father late Hanuman Sahai or her mother late Smt. Mohan Kanwar had right, title or interest. It was submitted that there were thus no warrant for the Alwar house being considered property of late Hanuman Sahai which could be included as a subject matter in the suit for partition laid by her in respect of the house at Jaipur which stood in her father's name. 4. On consideration of the matter, the trial court held that from the admitted fact of the case it was apparent that the house at Alwar was solely in the name of the plaintiff, Ratan Kumari and was thus wholly irrelevant in a suit for partition of the property of late Hanuman Sahai between his legal heirs i.e. the plaintiff and the defendant in the suit before it. The trial court further held that the whole purpose of the application under Order 6 Rule 17 Civil Procedure Code for amendment of the written statement filed belatedly after a delay of about 20 years appeared to be to prolong the adjudication of the partition suit pending before it. 5. I have perused the impugned order dated 23.07.2012, passed by the trial court and heard the counsel for the petitioner. 6. In my considered opinion, the amendment sought by the defendant in his written statement apart from being wholly belated was completely irrelevant for the adjudication of the subject matter of the suit for partition laid by the plaintiff Ratan Kumari before the trial court. 6. In my considered opinion, the amendment sought by the defendant in his written statement apart from being wholly belated was completely irrelevant for the adjudication of the subject matter of the suit for partition laid by the plaintiff Ratan Kumari before the trial court. It is an admitted fact that the property i.e. house No.1 Kha 6, Pratap Nagar, Manu Marg, Alwar stands in the name of the plaintiff in respect of which late Hanuman Sahai and his wife late Smt. Mohan Kanwar had no right title or interest and which in no manner whatsoever could constitute property of late Hanuman Sahai to be included in the suit for partition laid by the plaintiff in respect of the property at Jaipur. Further in my considered opinion, in case the amendment sought by the defendant in the written statement were to be allowed, it would change the very nature of the issues in the suit before the trial court from one of partition as laid by the plaintiff to one of declaration and partition whereunder the trial court would be required to go into the question of ownership, right, title and interest in the property at Alwar, declare that the plaintiff was not the owner of house NO.1 Kha 6, Pratap Nagar, Manu Marg, Alwar; that it belonged to late Hanuman Sahai and thereafter proceed to adjudicate the suit for partition. This would be impermissible in law. If at all the defendant in the suit, now petitioner before this Court, seeks a declaration of this nature, he would have his own independent cause of action therefor. 7. Consequently, I find no force in the writ petition and the same is dismissed. Stay also dismissed.Petition allowed. *******