V.K. Shali, J.

IA No. 2142/2011

1. This is an application filed by the defendant under Section 151 seeking the expunging of certain paragraphs filed in the affidavit by way of evidence on the ground that the same are beyond pleadings and also seeking a direction that the additional documents which have been filed along with the affidavit may not be taken on record.

2. Briefly stated the facts of the case are that the plaintiff filed the present suit for partition in the year 2004. The suit was contested by the defendants and they filed their written statement.

3. On the pleadings of the parties, the following issues were framed on 15.1.2009, which read as under:-

"(i)

Whether any HUF business of Sh.Shori Lal existed and if so, whether the plaintiff was a co-parcener? OPP

(ii)

Whether HUF of late Shori Lal existed and came to an end in 1966-67 by partition? OPP

(iii)

Whether business in the name of Punjab Glass & Plywood Co. was HUF business of defendant No. 1?

(iv)

Whether the property No. 1050, Patel Gali No. 1 and 2, Gandhi Nagar is an HUF property? OPP

(v)

Whether the plaintiff is entitled to any share in the suit property, if so, what share? OPP

(vi)

Whether the plaintiff is entitled to a decree of partition of property by metes and bounds or by any other method? OPP

(vii)

Whether the suit has been filed within the period of limitation in view of the pleadings of the plaintiff? OPP

(viii)

Whether the suit has been properly valued for purpose of Court fees and jurisdiction and whether the appropriate Court fees has been affixed? OPP

(ix)

Whether the suit is not maintainable for want of Court fees? OPP

(x)

Relief."

4. It is stated that in the year 2008, the plaintiff had filed an application seeking amendment of the plaint which was allowed and thereafter the written statement to the amended plaint was filed by the defendants and the Court was pleased to appoint Mr. G.P.Thareja, as a Local Commissioner for the purpose of recording evidence. It is alleged in the application that the plaintiff has now filed an affidavit by way of evidence which contains the averments which are beyond pleadings and therefore, the present application filed by the defendants seeks deletion of the paragraphs which are stated to be beyond pleadings. It may be pertinent to reproduce the paragraph 8 of the present application, which reads as under :-

"(8) That the contents of affidavit which are beyond pleading has been reproduced for the kind convenience of this Hon'ble Court and same is as are as:-

`In para -3. I state that my grandfather was carrying on the family business of Halwai in Shalmi Darwaja (Jori More), Lahore, Pakistan and he had a flourishing business and from the said business he had various movable and immovable properties.

In para 4. During the partition in 1947, my grandfather had left behind various movable and immovable properties in Pakistan some of them being two shops, three houses, jewellery, household items etc.

In para 6. Out of the said amount of Rs. 5,000/-, my father had purchased a freehold plot bearing No. IX/1050, Patel Gali No. 1-2, South Gandhi Nagar, Delhi-110031.

In para 9. The said business continued till 1974. Letter dated 09.6.1960 issued by the Directorate of Food and Civil Supplies to M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW-1/1. Certificate of verification from department of Industries dated 15.2.1963 in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW-1/2. Certificate of verification from department of Industries dated 01.6.1965 in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW1/3. Copy of receipt dated 21.11.1967 issued by Civil Supply Officer in the name of M/s Shori Lal Bhola Nath may be exhibited as Exhibit PW1/4.

In para 10. The property from which the shop was being run by my grandfather at i.e. 535/2, Main Road, Gandhi Nagar, Delhi-110031 was under the tenancy of the HUF and for the said property was taken on rent for the benefit of the members of the HUF in the name of my fat