ARUN KHANNA Vs. VINOD KUMAR KHANNA

JUDGEMENT

(1.) THE issues in this case were framed on 11 th April, 2008 and read as under:-

(2.) THE plaintiff and defendant No.1 are brothers. THEre is dispute between the parties with respect to ownership of the portion C in property bearing No.39/71, West Punjabi Bagh, New Delhi. THE case of the plaintiff is that this portion of the property was owned by his parents and vide Will dated 25th February, 1985, half of the portion marked C in the aforesaid property was bequeathed to him by his father, late Shri Hira Lal Khanna. THE case of the defendant No.1 on the other hand is that the entire portion marked C was purchased by him, by way of a sale deed executed on the basis of a general power of attorney executed by their parents in favour of his wife and brother- in-law. THE case of the plaintiff in the replication is that the power of attorney relied upon by the defendant No.1 is forged and fabricated document. Now in I.A. No.9150/2010 the plaintiff wants an additional issue to be framed in respect of his allegation that the aforesaid power of attorney is a forged and fabricated document. THE contention of learned counsel for defendant No.1 is that since there was no allegation of forgery and fabrication in respect of the power of attorney dated 18 th July, 1994 in the plaint, he had no opportunity to rebut the allegation made in this regard and, therefore, no issue can be framed on the basis of such an averment. I, however, find no merit in this contention. Order 8 Rule 9 of the Code of Civil Procedure, to the extent it is relevant, provides that no pleadings subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court. This Rule, therefore, does permit filing of a subsequent pleading including a replication with the prior permission of the Court. Hence, the replication, if permitted by the Court, becomes a part of the pleadings and, therefore, a plea taken in the replication even if for the first time, needs adjudication by the Court. This proposition of law was accepted by this Court in Moti Ram v. Baldev Krishan, D.L.T. 15(1979) 90. In that case, the service of a notice terminating the tenancy was pleaded in the replication. It was contended by the defendant that the plaintiff having not pleaded the service of notice, the suit was defective on this ground. THE contention was, however, rejected by this Court, since the notice was found pleaded in the replication. THErefore, in this case also, since forgery in respect of power of attorney dated 18th July, 1994 has been pleaded in the replication, it cannot be said that the challenge to power of attorney does not emanate from the pleadings of the parties. THE defendant No.1 had full notice of the fact that the validity of the sale deed alleged to have been executed in his favour was being assailed by the plaintiff on the ground that power of attorney on the basis of which the sale deed was executed in his favour was a forged and fabricated document. THErefore, it cannot be said that if evidence is allowed to be led on this aspect, he would be taken by surprise and will not be in a position to rebut the case of the plaintiff. In Maheshwar Dayal v. Amar Singh, AIR 1983 PandH 197, the Court was of the view that to see as to whether a fact has been pleaded by the plaintiff by the plaintiff, the Court is not to confine its gaze to the plaint, but has to extend it to the replication as well since replication and plaint together constitute pleadings of the plaintiff. In taking this view, the High Court placed reliance on its earlier decision in Jag Dutta v. Smt. Savitri Devi, AIR 1977 PandH 68 where the landlady had pleaded two essential ingredients of eviction in the replication, which was held to be sufficient pleadings in this regard. In fact, in Salig Ram and Another v. Shiv Shankar and Others, AIR 1971 PandH 437, a Division bench of the High Court was of the view that since replication is a part of the pleadings, anything which is specifically stated therein for the first time needs to be controverted and if not controverted, it is assumed that the plea raised is accepted. THE defendant No.1, on filing of replication, came to know of the plea taken by the plaintiff with respect to the aforesaid power of attorney. No permission was sought by him to file a reply to the replication in order to controvert the aforesaid averment. Be that as it may, since the case of the plaintiff is that the power of attorney dated 18th July, 1994 is a forged document whereas the case of the defendant No.1 is that this document was validly executed by their parents on 18th July, 1994, this issue needs adjudication during trial. An issue has already been framed with respect to ownership of 1/6th share in property No. No.39/71, West Punjabi Bagh, New Delhi. While deciding this issue, the Court will necessarily have to adjudicate on the validity or otherwise of power of attorney dated 18th July, 1994 because if this document was executed by their parents and later the portion C was sold to defendant No.1, by a sale deed executed by the attorneys, the Will bequeathing this portion to the plaintiff would not of any consequence and would not confer ownership on him. It is, therefore, made clear that while leading evidence on issue No.1, the plaintiff would be entitled to lead evidence to prove that the power of attorney dated 18th July, 1994 is a forged document. Of course, defendant No.1 would be entitled to lead evidence to rebut the case of the plaintiff in this regard. As requested by the learned counsel for defendant No.1, it is made clear that at the time of final arguments, it will be open to defendant No.1 to take a plea that the validity of the power of attorney cannot be challenged, by way of replication filed in January, 2008. THE learned counsel for defendant No.1 wants permission to file documents in this regard. THEre is no objection to his request and hence, the parties are permitted to file additional documents, if any, with respect to the execution of the power of attorney dated 18th July, 1994.

(3.) AS noted earlier, there is dispute between the parties with respect to ownership of portion C in property No.39/71, West Punjabi Bagh, New Delhi.