RAJIV GOEL Vs. KRISHNA KUMARI GOEL

JUDGEMENT

(1.) . This civil revision petition is filed by the petitioners, who are defendants 1 and 2 in the suit. under Section 115 of the CPC assailing an order of the Additional District Judge dated 22nd November, 2000 whereby he has dismissed an application of the petitioners filed under Order 6 Rule 17 CPC for amendment of their written statement.

(2.) . Facts, in brief, are that respondent No.1, plaintiff in the suit, filed a civil suit for declaration with consequential relief against the petitioners, who are arrayed as defendants 1, 2 and five other persons (who were tenants in different portion of the suit property) for grant of 1) a decree of declaration that the sale deed dated 1/11/1995 pertaining to property No.E-188 Greater Kailash Part-1 executed by petitioner No.1/defendant No.1 in favour of petitioner No.2 defendant No.2 was null and void and not binding on the plaintiffs; 2) a decree for perpetual injunction restraining the defendants from making further sale, transfer or alienation of the suit property on the basis of the sale deed dated 1/11/1995; 3) a decree of perpetual injunction restraining the petitioners/defendants No.1 and 2 from realising the rent from the tenants defendants No.3 to 7 and restraining the defendants no.3 to 7 from paying rent to defendants 1 and 2 and ; 4) lastly a decree for mandatory injunction directing defendants 1 and 2/petitioners to vacate the premises and hand over the vacant possession of the premises to respondent No.1 -plaintiff. Her case is that defendant no.1/petitioner no.1 is her son and defendant no.2/petitioner no.2 is his wife. She is owner of the suit property. The land underneath this property measuring 208 sq. yds. was purchased by her jointly with her sister-in-law Ms. Krishana Kumari Aggarwal by a registered sale deed dated 13-2-1963. Smt.Krishana Kumari has relinquished her share in the said property in her favour long back. The petitioners (defendants 1 and 2) were in possession of the said document. The ground floor of the property was in self occupation of the plaintiff in which the defendants no.1 and 2 were living as her licensees and the remaining defendants, who were tenants in the different portions of the property are paying rent at varying rate. The husband or the plaintiff died on 19.2.1994 and she became fully dependent upon her son defendant no.1 and his wife defendant No.2 for her safety, security and daily requirements. Taking undue advantage of the simplicity, old age, infirmity and illiteracy of the plaintiff, defendants 1 and 2. exercised undue influence and pressure upon her and obtained her signatures sometimes on blank papers and sometime on papers which had writing or were typed in English script without explaining the contents thereof on the pretext that they were required for dealing with the five tenants, the realisation of the rent and payment of house tax and electricity bills etc. In May, 1995, defendant no.1, pursuaded the plaintiff to go to a Government office near INA market where she was asked to sign some typed papers, which were already with him, on the pretext that they were required for the purpose of clearance of the house tax, land tax, electricity and water bills and the necessary authorisation to facilitate the recovery of rent from the tenants and litigation with the tenants, if any, and that believing such representations to be true she signed those papers. The plaintiff did not know English language. She knew only to make her signatures in English script. She could not read or understood the contents of the documents. The defendant no.1 also did not explain them. She believed the words of defendant no.1. Thereafter the behaviour of defendant no.1 with her suddenly changed and then she realised that he had obtained her signature on some documents fraudulently. She filed a civil suit bearing No. 447/95 which is pending in the Court of a Civil Judge. At the time of filing of the suit, the plaintiff did not know the nature of the documents which were obtained by defendant no.1 from her. Therefore, she could not specify particulars of the documents and pray for their cancellation. Later on she discovered that the defendant no.1 had obtained from her a general power of attorney in his own favour and a will in favour of his son both dated 19/05/1995. Defendant no.1 filed his written statement after a long delay from which she came to know that he had already transferred her undivided one half share in the property by registered sale deed dated 1.11.1995 for a consideration of Rs.3,20,000.00 by virtue of the general power of attorney dated 19/05/1995. The particulars of the sale were not revealed in the written statement. She came to know about name of the vendee defendant No.2 after the record of the office of the Sub Registrar was inspected. The documents were obtained by concealment and suppression of the material fact from her in order to usurp the property.

(3.) The suit was contested by defendants no.1 and 2, who filed the written statement controverting the allegations of the plaintiff. Defendants 1 and 2 filed an application under Order 6 Rule 17 for amendment of their written statement. It was alleged that the civil suit filed by the plaintiff bearing No. 447/95 has since been dismissed on merit by a Civil Judge and further that she was also maintaining a diary written in her own hands noting realisation of rent from the tenants which would show that she herself was managing her share in the property prior to the sale of the property. The proposed amendment was specified in the application which is as under :