ANITA SHINH CHAUHAN Vs. KEDAR NATH

JUDGEMENT

(1.) This order will dispose of plaintiff's application for amendment of the plaint under Order 6, Rule 17, Code of Civil Procedure, 1908 (for short Civil Procedure Code). The defendants have filed a reply pleading that the amendments are intended to delay the proceedings, and are not necessary for determining the real controversy between the parties.

(2.) The plaintiffs filed a suit against the defendants for partition of the House No. 6199, Gali No. 1, Block No. 1, Dev Nagar, Karol Bagh, New Delhi (for short suit property) alleging therein that plaintiff No. 1 is widow of late Sh. Sunil Chauhan, (son of defendant No. 2) and plaintiff Nos. 2 and 3 are their minor children. The defendant Nos. 1,2 and 3, are grandfather, father and brother respectively of Sunil Chauhan, husband of plaintiff No. 1; that there was a joint Hindu family consisting of the defendants and plaintiff No. 1 's husband who died on 25th April, 1996. The plaintiffs claim that they are entitled to 1 /3rd share in the suit property and that plaintiffs are otherwise entitled to residence on the second floor of the suit property. The defendants in their written statement while denying the averments made in the plaint have, inter alia pleaded, that the suit property is a three-storey house, which was constructed by defendants 1 and 2 on a plot of land measuring 75 sq. yards which is in their names. The electricity and water connections are also in their names. The property was constructed by these defendants from their personal funds. No other person or a party has any right, title or interest in the said property. Now the plaintiffs have filed the application under Order 6, Rule 17, Civil Procedure Code seeking to amend the plaint by adding paras 3A, 13A and prayer Clause (bb). I have heard learned Counsel for the parties and have been taken through the record. Learned Counsel for the plaintiffs argued that amendments sought to be made do not in any way alter the nature or character of the suit and the amendments are necessary to determine the real controversy between the parties. Learned Counsel for the defendants has argued that on 27th August, 1997, ex parte injunction was granted in favour of the plaintiffs, was vacated by this Court and the dates of trial were fixed on 12th and 13th March, 1998. No evidence was produced, but, .an amendment application was filed only with an intent to delay the trial; that the amendments sought to be made would cause prejudice, change the nature of the suit and would introduce an entirely new case, therefore, the same should not be allowed.

(3.) In paras 3 and 4 of the plaint it was pleaded that there was a joint Hindu family consisting of the defendants 1 and 2 and late Sh. Sunil Chauhan, husband of plaintiff No. 1 and father of plaintiffs 2 and 3; they were owners of the suit property; thus a plea of joint Hindu family as well as joint ownership was set out in the plaint. By paragraph 3A, it is sought to be added that the suit property was purchased out of the nucleus of joint family funds and business; joint faimly was having gold and jewellery business in Tehsil Gujarat (near Sialkot), Gujarat, Pakistan. The nucleus of the said jointfamily business was used by the defendants to begin the new business after coming to Delhi; the defendants also received compensation from the Ministry of Rehabilitation, for the joint family properly which were left behind in Pakistan, from the said nucleus of joint family funds. House No. 2271, Gali Master Shiv Parsad, Turkman Gate, Delhi was purchased. Subsequently, the suit property was purchased from DDA as a plot. The funds of the joint family were used to purchase the said plot and the property at Turkman Gate, were used for construction of three storeyed building on the said plot. The said property being HUF properties, the plaintiffs are entitled to partition being lawful co-owners of the same. Plaintiff Nos. 2 and 3 as co-parceners and plaintiff No. 1 being the wife of the deceased late Shri Sunil Chauhan are also entitled to a share in the said property. Thus by this . amendment the plaintiff is only seeking to plead additional facts in support of the plea already taken in paras 3 and 4 of the plaint.