CM(M) 761/2022

Page 1 of 22

$~75(Appellate)

*

IN THE HIGH COURT OF DELHI AT NEW DELHI

+

CM(M) 761/2022 & CM APPL.33802/2022, CM APPL.

33803/2022

RAJESH KUMAR YADAV & ANR.

..... Petitioners

Through:

Mr. Swastik Kumar, Mr.Atul

Singh, Mr. Himanshu Dagar and Mr.Rewant

Chandra, Advs.

versus

GANESH SINGH YADAV

..... Respondent

Through:

None

CORAM:

HON'BLE MR. JUSTICE C.HARI SHANKAR

J U D G M E N T (O R A L)

%

04.08.2022

1.

This petition under Article 227 assails order dated 8^th

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

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003084

CM(M) 761/2022

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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 30^th

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

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/003084

CM(M) 761/2022

Page 3 of 22

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

Responde