VASUDEV Vs. RUPKUMARI ALIAS BANARSO DEVI

JUDGEMENT

(1.) As Co-owner of the property No. 21-J, Pandav Nagar, Near Mother Dairy, Patpar Ganj, New Delhi, the plaintiff filed a suit for possession and recovery of damages for the use and occupation of the said premises against the defendants. This suit was contested by the defendants who took various preliminary objections as to maintainability of the suit. They denied the ownership of the plaintiff and in fact claimed that defendant No. 1 had purchased the said property and constructed one and a half-storeyed building over that property by incurring huge cost and no objection was raised at any time either by the plaintiff or defendant No. 2. Defendant No. 2 was proceeded against ex parte in the suit vide order dated 30.03.1989. By a detailed judgment and decree dated 29.08.2001, the trial court held that the plaintiff was the owner of the property and was entitled to decree for possession, however, it deferred the determination of quantum of damages under a separate enquiry as contemplated under Order 20 Rule 12 of the Civil Procedure Code, which is stated to be still pending before the trial court. Aggrieved from this decree, defendant No. 1 (appellant in the present appeal) filed the regular first appeal challenging the legality and correctness of the judgment and decree of the trial court. During the pendency of this appeal, the appellant filed an application under Order 6 Rule 17 read with Section 151 of the CPC being CM No. 1381/2001, seeking permission to amend the written statement. This application was contested by the respondents/non-applicants who filed a detailed reply to this application on 14.5.2002. By this order, we shall dispose of this application of the appellant.

(2.) In the application for amendment, the appellant has averred that the property in question was acquired and the factum of acquisition of the land in question by the appropriate Government in the year 1972 could not be taken up before the trial court as it was not within the knowledge of the appellant. Since the facts have now come in the knowledge of the appellant, he wishes to raise a preliminary objection as to maintainability of the suit on the ground that the respondents in appeal were not the owner of the property and as such, the suit was liable to be dismissed. By way of amendment, he proposes to add the following preliminary objection No. 5:- ?(5) That the suit is barred by Section 16 of land Acquisition Act as the property in question vested to the Govt. Sree from all encumbrance vide Award ward No. 6/C-71-72 and the plaintiff has no cause of action to maintain the pre- sent suit. The suit of the plaintiff is malafide and has been filed to nullify the land acquisition.-Proceeding and under the garb of possession a declaration to this effect that suit property has not been acquired and plaintiff is the owner of the property in question.?

(3.) It is also averred in this application that the proposed amendment is necessary to determine the real question in controversy; the amendment will not alter or change the nature of the suit; the amendment being legal in nature, should be permitted and after allowing the amendment, the court should proceed with the suit in accordance with law. The objections taken by the non- applicants in reply to this application are that the application for amendment has been filed at a belated stage and is malafide. Besides that, it is hit by Article 137 of the Limitation Act. It is also averred by the non-applicants that if the application is allowed, it will tantamount to denovo trial and would alter the original case filed by the plaintiff completely. The plea now taken was known to the applicant as the acquisition of land is by a public notice. Thus, the plea taken about knowledge of the acquisition in recent time, was factually incorrect. It is specifically disputed that the property in question has been subject matter of any acquisition proceedings or was covered by any award. On the contrary, it was argued that a constructed property is exempted from acquisition under the notification itself. On this premise, it is prayed that the application be dismissed with costs.