SUBODH KHANNA Vs. PROMOD KHANNA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 18.01.2012 passed by the learned Single Judge in IA No. 6087/2011 preferred in CS(OS) No. 2203/2006. The learned Single Judge while allowing the said application, which was preferred by the respondent/plaintiffs, has issued the following directions in the operative part of the judgment: "IA No. 6087/2011 (Sec. 151 CPC) xxxx xxxx For the foregoing reasons, it is ordered that written statement filed by the defendants be taken off the record and be returned to the counsel for the defendants, who shall file amended written statement by deleting the "preliminary submissions." Application is disposed of in the above terms. CS(OS) No. 2203/2006 Amended written statement be filed by the defendants within four weeks with an advance copy to the counsel for the plaintiffs, who may file replication, if any, within two weeks thereafter. Renotify on 9th May, 2012."

(2.) THE appellants, who are defendants in the suit, are aggrieved by the directions issued in the respondent's/plaintiff's application. THE background, in which, the aforementioned direction came to be issued is as follows. 2.1 THE respondent has filed a suit for declaration, permanent and mandatory injunction qua a property bearing no. W-105, Greater Kailash, Part-II, New Delhi. In the suit, it is alleged by the respondents/plaintiffs that, the appellants/defendants had commenced construction on a portion of the suit property which belonged to the respondents/plaintiffs. After summons in the suit were issued, the appellants/defendants, filed a written statement wherein, certain preliminary objections were taken with regard to maintainability of the suit. Averments, apparently, were also made in the written statement disputing the right of the respondents/plaintiffs to the suit property. THEse allegations apparently were made on the basis of a family settlement; which was accompanied by relinquishment deed, power of attorney and affidavits. It was averred that respondent no.1/plaintiff no. 1 on the one hand and, appellant no. 1/defendant no. 1 on the other, having signed these documents alongwith their sons, the suit was bereft of any cause of action. 2.2 THE respondents/plaintiffs filed their replication to the written statement, in which, they adverted to the fact that the family settlement had been forged by the appellants/defendants in collusion and connivance with the mediators. 2.3 As a matter of fact it was averred in the replication that there were two sets of family settlement drawn up between the parties and signatures were obtained on the two sets of the family settlement by the mediators by projecting that the second set was a copy of the first. 2.4 It is in this context, that the respondents/plaintiffs moved an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (in short the Code). This application was numbered as: IA No. 9765/2008. A single judge of this court by an order dated 10.02.2010, partially allowed the amendments sought by way of this application. THE respondents/plaintiffs being aggrieved preferred an appeal, being: FAO(OS) No. 2007/2010. THE appellants also filed a cross-appeal being: FAO(OS) No. 340/2010, against that part of the order dated 10.02.2010, which permitted certain amendments to be made in the plaint. 2.5 A division bench of this court vide order dated 12.11.2010, disposed of both these appeals by holding that once the single judge by his order dated 10.02.2010 had allowed amendments by way of additions to paragraphs 9, 10 and 11 of the plaint, then the remaining proposed amendments, (which were disallowed), qua paragraph 17 of the plaint and prayer clause (b) and (c) ought to have been allowed as, these were consequential in nature. With this rationale, the Division Bench passed the following operative directions in paragraph 15 of its judgment.

(3.) MR Chopra, learned counsel for the appellants, in our view, argued contrary to the record when, he submitted that the even his objection to the suit being barred under Order 7 Rule 11 of the code was not permitted to be agitated, by its inclusion in the amended written statement. MR Chopra was not able to demonstrate this time around as to how the learned Single Judge, if at all, had erred in directing removal of the averments made by the appellants/defendants under the head "preliminary submissions".