(August 1, 2001) 2001 (TLS)125501

2001-DLT-93-304 :: 2002-DRJ-61-401

KALI CHARAN Vs. ISHWAR DASS

Devinder Gupta

( 1 ) THE defendant/appellant has filed this appeal challenging the order passed on 21. 8. 2000 by learned Single Judge dismissing his application (IA 2723/2000) filed under Order 6 Rule 17, CPC seeking amendment to the written statement.

( 2 ) THE plaintiff/respondent filed a suit claiming decree for partition with respect to property bearing No. 5362-5364, Ladoo Ghati, Pahar Ganj, New Delhi and property bearing No. 3596-3597, Dariba Pan, Paharganj, New Delhi. Plaintiff and defendants 1 and 2are the sons of late Bhagwan Dass. The plaintiff alleged that after the death of their parents the plaintiff and defendants 1 and 2 got mutated in their joint names immovable properties and thus the plaintiff and defendants 1 and 2 became joint owners having 1/3rd share each. The plaintiff further alleged that in a portion of property No. 5362 to 5364 the plaintiff along with his family and defendants 1 and 2 along with their respective families have been residing but rent was being received for the remaining portions of the said property and other property by defendant No. 1 on behalf of the plaintiff and defendant No. 2. Since difference had arisen, therefore, necessity arose to file suit for partition. The suit was instituted on 23. 5. 1996. On 2. 10. 1996 defendant No. 1 filed his written statement accepting the case of the plaintiff and clearly admitting that the suit properties were mutated in joint names of the plaintiff and defendants 1 and 2 and they thus became joint owners of the property to the extent of 1/3rd share. He also admitted that rent was being collected by him on behalf of the plaintiff and defendant No. 2. Written statement was filed through Mr. W. C. Chopra, Advocate. However, a preliminary objection was raised that defendant No. 2 was of unsound mind, therefore, the suit could not proceed till appointment of a proper guardian ad-litem. The plaintiff also filed replication. Along with the suit the plaintiff filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure in which on 31. 5. 1996 an ex-parte order of injunction was granted restraining the defendant from transferring, alienating or creating third party interest in the suit property.

( 3 ) IN view of the preliminary objection taken by defendant No. 1 that defendant no. 2 was of unsound mind, the case was adjourned to enable the plaintiff to take appropriate steps for obtaining orders for the appointment of gurdian ad-Item for (the said defendant. Interim order was continued. The plaintiff did file an application (IA 11666/97) seeking appointment of next friend of defendant No. 2 and also filed an application (IA 11736/97) under Order 12 Rule 6, CPC praying fora preliminary decree for partition in view of the admission made by defendant No. 1 in his written statement. Notice of this application was given to defendant No. 1 for 7. 1. 1998 for which date the case was directed to be posted before the Joint Registrar for admission and denial of documents. Applications were thereafter directed to be posted before the Court for hearing arguments and the suit for framing of issues. Reply was not filed by the defendants to these miscellaneous applications. Applications were thus adjourned from time to time. In the meanwhile, defendant no. 2 expired on 18. 4. 1999 and on 5. 5. 1999 an application (IA 5114/99) was filed bringing the said fact on record and stated that since defendant No. 2 was unmarried and had no other legal heir except his two brothers, namely, the plaintiff and defendant No. 1, therefore, appropriate orders for taking the factum of death of defendant No. 2 be taken on record.

( 4 ) IT was at this stage when IA 5114/99 was filed that defendant No. 1 appears to have changed his lawyer and this change of lawyer resulted in filing an application (IA 2723/2000) on 22. 1. 2000 under Order 6 Rule 17, CPC seeking