AJAY BATRA Vs. Y P BATRA

JUDGEMENT

(1.) By this application filed under Order 6 Rule 17 of CPC the plaintiff seeks to amend the present plaint. Through this amendment the plaintiff primarily seeks to incorporate the relief of claiming a decree of partition by metes and bounds in respect of the alleged joint family properties which are already subject matter of the existing suit. The plaintiff further seeks declaration that he be declared as owner of the 25% of the first suit property i.e C-173, Defence Colony, New Delhi in his individual capacity and for partition of remaining 75% amongst the coparceners.

(2.) The present application has been contested by the defendants and the stand taken by the defendants in their reply is that the present amendment has been sought by the plaintiff with a view to frustrate the application filed by the defendants under Order 7 Rule 11 of CPC. The defendants have further stated that the amendment as sought by the plaintiff, if allowed, might change the nature of the suit. The main ground for opposing the present application as canvassed by the defendants in their reply as well as through oral arguments was that the amendments as sought by the plaintiff, if allowed at this stage, then the reliefs claimed by the plaintiff would be time barred as the suit for claiming partition in the joint family properties can be filed within a period of three years from the date of the refusal of the same by the defendants.

(3.) Arguing the present application, Mr. Abhinav Vashisht, learned Senior Advocate representing the plaintiff submitted that by the present application the plaintiff seeks to amend the present suit by adding the relief of partition and possession and also by claiming an additional share in the joint family properties. Counsel also submitted that the present amendment being sought by the plaintiff will not change the basic nature of the suit on which the case of the plaintiff rests and it will remain the same. Counsel further submitted that the objection raised by the defendants with regard to limitation cannot be appreciated at this stage as the question of limitation is a mixed question of law and fact and the same can only be decided at the time of trial. In support of his arguments counsel placed reliance on the following judgments: