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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO (OS) 578/2010

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Reserved on: September 24, 2010

Decided on: November 12, 2010

Shri N.D.Tiwari

S/o Late Sh. Poornanand Tiwari

R/o B-315, Sector-B

Dr. Sushila Tiwari Marg,

Mahanagar Lucknow, U.P.

..... Appellant

Through:

Mr. Rajiv Nayyar, Mr. J.P.Singh and

Mr. Chetan Sharma, Sr. Advocates

with Mr. Atul Sharma, Mr. Abhishek

Agarwal, Mr. Anil Sharma, Mr.

Abhishek Misra and Mr. B.B.Gupta,

Advocates.

versus

1.

Sh. Rohit Shekhar

S/o Sh. Narayan Dutt Tiwari

R/o C-329, Defence Colony,

Ground Floor,

New Delhi-110 024

2. Dr. Ujjwala Sharma

D/o Prof. Sher Singh

R/o C-329, Defence Colony

Ground Floor,

New Delhi-110 024

..... Respondents

Through:

Mr. Sudhir Nandrajog, Sr. Advocate

with Mr. S.S.Swaminathan and Mr.

Kirtiman Singh, Advocates for R-1.

Mr. Gaurav Mitra, Advocate for R-2.

Coram:

HON'BLE MR. JUSTICE VIKRAMAJIT SEN

HON'BLE MS. JUSTICE MUKTA GUPTA

2010:DHC:5482-DB

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1. Whether the Reporters of local papers may

be allowed to see the judgment?

Not necessary

2. To be referred to Reporter or not?

Yes

3. Whether the judgment should be reported

in the Digest?

Yes

MUKTA GUPTA, J.

1. Civil Suit CS (OS) 1711/2007 was filed on 12^th September, 2007

by the Respondent No.1 primarily against the Appellant inter alia

seeking a declaration of relationship with the Appellant and a perpetual

injunction from denying the said relationship and publishing the same

in the newspaper. No summons were issued to the Appellant in the

said suit and on 20^th September, 2007 an Application IA No.10860/2007

under Order VI Rule 17 CPC was filed seeking amendment of the plaint

by incorporation of additional facts. It is this incorporation of facts as

sought in CS (OS) 1171/2007 which is the bone of contention in the

present Appeal. The incorporation sought was addition of para 3 (xvi)

and to para 8 of the plaint:

“3 (xvi)

The Plaintiff submits that after the Defendant

No.1

became

Chief

Minister

of

Uttaranchal,

the

Petitioner and his mother visited the Defendant No.1

number of times and some of the photographs of the

functions attended by the Plaintiff and his mother after

2002 and upto 2005 are filed separately in the present

suit. It was on 7^th December, 2005 when the Plaintiff

approached

Defendant

No.1

with

his

maternal

grandmother at the airport in Delhi to seek an

appointment with him that the Defendant No.1 avoided to

meet the Plaintiff. Thereafter, many attempts have been

2010:DHC:5482-DB

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made by the Plaintiff to contact the Defendant No.1 but

he has refused to meet the Plaintiff.”

In para 8 the Appellant wants to add “2005, as stated

hereinabove, and till date,” whereby the after amendment para 8,

would read as:

“The Cause of action for the present suit arose

for the first time when the Defendant No.1 refused to

have any thing to do with the Plaintiff and denied entry

to the Defendant No.2 to his Tilak Lane residence in

Delhi in the year 2001. It further arose on 1^st of

October, 2001, when the Defendant No.1 again refused

to meet the Plaintiff and refused to acknowledge the

Plaintiff as his son. It has also arisen on all the

occasions that the Defendant No.1 has refused to

acknowledge the Plaintiff as his son after 2005, as

stated hereinbefore, and till date. The cause of action

is continuing till date, hence, this suit.”

2. In the civil suit filed earlier, that is, CS (OS) 1711/2007 the

requirement of Article 361 (4) of the Constitution of India was not met

and in view of this hurdle the Respondent No.1 sought liberty to

withdraw the plaint by filing an application being IA No.2912/2008. By

the said application the Respondent No.1 sought permission to

withdraw the suit with liberty to file a fresh suit on the same cause of

a