The main legal point established is that objections raised at the final arguments, which were not raised in the written submission or framed as issues, cannot be used to non-suit the plaintiffs.

JUDGMENT

Manmeet Pritam Singh Arora, J. (Oral):

1. This petition filed under Article 227 of the Constitution of India impugns the order dated 28.04.2018, passed by the ADJ, Tis Hazari Courts, Delhi (`Trial Court') in Civil Suit No. 477/2014 (New No. 9839/2016), titled as Smt. Parmeshwari Devi & Anr. v. Ram Kishan & Ors., whereby the Trial Court dismissed an application filed on behalf of the plaintiffs under Section 151 of the Code of Civil Procedure, 1908 (`CPC') for recalling of the order dated 02.02.2016.

2. The Petitioners herein are the original plaintiffs and the Respondents No. 1 to 5 herein are the original defendants in the civil suit. The civil suit has been filed for partition, rendition of accounts, recovery of damages and injunction with respect to the estate of the common ancestor late Sh. Sher Singh, duly described in the plaint.

2.1. The Trial Court vide impugned order dated 02.02.2016 dismissed the Petitioner's application dated 01.05.2014 filed under Order VI Rule 17 CPC.

2.2. The Trial Court vide impugned order dated 28.04.2018 dismissed the Petitioner's application filed under Section 151 of the CPC for seeking recall of the order dated 02.02.2016.

3. The learned counsel for the Petitioner states that plaintiffs filed the application under Order VI Rule 17 CPC in order to address the objections raised by Respondent No.5 (i.e., defendant no.5) herein with respect to non- joinder of necessary parties and the non-inclusion of the other immovable properties owned by the common ancestor late Sh. Sher Singh.

3.1. He refers to the order dated 24.04.2014 passed by the Trial Court to substantiate his averment. He states that the Trial Court in the said order recorded the objections of Respondent No.5 to the effect that the sisters of R- 3 and R-4 (i.e., defendant no.3 and 4) have not been impleaded in the suit and partition of the other properties mentioned by Respondent No.5 i.e., DW-5 in his affidavit by way of evidence has not been included in this civil suit.

3.2. He states that the objections with respect to the non-impleadment of necessary party was raised by Respondent no.5 with respect to Ms. Savitri and Ms. Sumitra the sisters of defendants no.3 and 4. He states that to the Petitioner's knowledge the said sisters of defendant No. 3 and 4 have relinquished their shares in favour of defendants nos. 3 and 4 respectively. He states that in fact no such objection was raised by defendant nos. 3 and 4 in their written statement. He states that it was in this background that the sisters were initially not impleaded.

3.3. He states that further vide order dated 29.03.2014 the Trial Court had itself in exercise of its powers impleaded Ms. Savitri and Ms. Sumitra or their legal heirs as parties to the civil suit. He states that the said order for impleadment was passed on the submission of Respondent No.5. He states that therefore, the sisters or their legal heirs of defendant nos. 3 and 4 already stand impleaded. He states that the amended memo of parties was duly filed on 01.05.2014 impleading Ms. Sumitra Devi as defendant No. 4-A and the legal representative of late Ms. Savitri as defendant No. 4-B. He states that summons were also issued to Ms. Sumitra Devi and the legal heirs of Ms. Savitri; however, none appeared on their behalf. He states that therefore, the proposed amendment was former and only gave effect to the order dated 29.03.2014.

3.4. He states that in view of the objection of Respondent No.5 as recorded in order dated 24.04.2014 with respect to non-inclusion of the other properties of late Sh. Sher Singh, in the application, the plaintiffs had proposed an amendment in the plaint to include other properties i.e., 14 immovable properties enlisted at paragraph 11 of the amendment application.

3.5. He states that the other 14 properties are residential properties and have been occupied by different branches of the family for a very long time. He states that the plaintiffs do not wish to upset the sta