A party seeking to amend pleadings post-trial must prove due diligence; mere claims of counsel negligence do not satisfy this requirement.

JUDGMENT (Oral)

1. This petition under Article 227 assails order dated 8th September, 2021, passed by the learned Additional Senior Civil Judge (the learned ASCJ) in CS SCJ 337/17 (Ganesh Singh Yadav v. Rajesh Kumar Yadav & Ors.). The impugned order rejects an application by the petitioner, as the defendant before the learned ASCJ, under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC), seeking to amend the written statement filed by him in response to the suit instituted by the respondents.

2. CS SCJ 337/17, instituted by the respondent against the petitioners alleged that the petitioners were in unauthorised and illegal occupation of the property of the respondent at D-84, Ground Floor, D-Block, Madhu Vihar, New Delhi-110059. The petitioners are the son and daughter-in-law of the respondent. The plaint alleged that, owing to acrimonious relations which developed between the respondent and the petitioners, the respondent had disowned the petitioners and requested the petitioners to vacate the suit property. The respondent also claimed to have filed a complaint on 30th November, 2016 at PS Dabari, New Delhi against the petitioners. Legal notices to the petitioners, by the respondent, calling on the petitioners to vacate the suit property, having met with no response, the respondent instituted the aforesaid CS SCJ 337/17 against the petitioners, seeking a decree of mandatory injunction, directing the petitioners to vacate the suit property and hand over vacant and peaceful possession of the suit property to the respondent.

3. The petitioners filed their written statement in response to the plaint of the respondent. It was sought to be contended, in the written statement, that the suit property was purchased by the respondent out of proceeds of sale of ancestral properties which fact, according to the petitioners, the plaint concealed. Preliminary objections to the maintainability of a suit merely seeking mandatory injunction without any relief of declaration, as well as absence of any cause of action in favour of the respondent and against the petitioners, were also raised. The written statement denied the assertion of the respondent that he was the absolute owner of the suit property. The petitioners claimed that they had commenced residing in part of the suit property with the consent of the respondent and as per his wish, with effect from March, 2016. The petitioners also claimed to have invested money in renovation of the suit property and to be paying the electricity and water charges with respect to the suit property to the respondent. Objecting to the attempt of the respondent to evict the petitioners from the suit property, the written statement prayed that the suit be dismissed.

4. The petitioners also filed a counter claim, under Order VIII Rule 6A of the CPC in response to the suit instituted by the respondent. In the counter claim, the petitioners claimed independent right to hold, use and enjoy the portion of the suit property which was in their possession, as Class I legal heirs of the respondent. As such, by the counter claim, the petitioners asserted their right to the portion of the suit property of which they were in possession.

5. The counter claim, therefore, sought a declaration that Respondent 1 was the sole, absolute and exclusive owner of that portion of the suit property which was in the possession of the petitioners as well as a permanent injunction, restraining the respondent from interfering with the peaceful possession and enjoy