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CASE NO.:

Appeal (civil) 1893 of 2008

PETITIONER:

Chander Kanta Bansal

RESPONDENT:

Rajinder Singh Anand

DATE OF JUDGMENT: 11/03/2008

BENCH:

Dr. Arijit Pasayat & P. Sathasivam

JUDGMENT:

JUDGMENT

CIVIL APPEAL NO. 1893 OF 2008

(Arising out of SLP (C) No. 6892 OF 2007)

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the order dated

22.11.2006 passed by the learned single Judge of the High

Court of Delhi in C.M. (Main) No. 136 of 2005 whereby the

High Court allowed the petition filed by the respondent herein.

3) Brief facts:

The appellant and the respondent, being members of Adarsh

Bhawan House Building Cooperative Society, Delhi were

jointly allotted a plot bearing No. 13/20, Punjabi Bagh

Extension, New Delhi admeasuring 426 sq. yds. vide perpetual

lease deed dated 12.05.1981. After the allotment, the plot

was partitioned with the mutual consent of the parties. The

front portion was allotted to the appellant and the back

portion was allotted to the respondent. The appellant raised

construction in the year 1983 and completed the same in the

year 1984. The respondent also started raising the

construction on the back portion and completed the same in

the year 1985. Both the parties were in use and occupation of

their respective portions of the property after the respective

construction. In the year 1986, the respondent herein filed a

suit for mandatory injunction being Suit No. 261 of 1986

alleging that the drive way, which is 10’ wide from gate facing

30’ road upto the road facing 15’ vide service lane at the back,

has been encroached upon by the appellant and the appellant

is not permitting him to use the drive way. Written statement

was filed and the witnesses were examined. On 12.5.2004, the

appellant herein filed an application under Order VI Rule 17

read with Section 151 CPC for amendment of written

statement and sought the permission of the Court to file a

written agreement executed between the parties on 10.9.1982.

The respondent herein filed a reply to the application denying

the execution of the agreement and claimed that the same is

forged and fabricated document. The trial Court, after hearing

the arguments, allowed the amendment application on

18.11.2004. Against that order, the respondent herein filed a

C.M.(Main) No. 136 of 2005 before the High Court of Delhi.

By order dated 22.11.2006, the High Court allowed the

petition and set aside the order passed by the trial Court on

18.11.2004 in the amendment application. Aggrieved by the

said order, the appellant preferred the present appeal by way

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of special leave before this Court.

4) Heard Mr. Ranjit Kumar, learned senior counsel

appearing for the appellant and Mr. Altaf Ahmed, learned

senior counsel appearing for the respondent.

5) The respondent herein (plaintiff) filed a suit No. 261 of

1986 on the file of Senior Sub-Judge, Delhi praying a decree

for mandatory injunction against the defendant (appellant-

herein) to remove all obstructions at point "X" and lock at

point "Y" in the site plan of the property No. 13/20, Punjabi

Bagh Extn. New Delhi and also not to put the lock at main

gate of the property. In the same prayer, the plaintiff has

prayed that the defendant may further be directed not to

obstruct the plaintiff, his family members or relations from

using the common drive way from point "Y" to "Z" in the site

plan. The said suit was filed on 23.05.1986, the defendant

filed a written statement even in the year 1986 itself. While

so, on 12.05.2004, the defendant filed an application for

amendment of written statement under Order VI Rule 17 read

with Section 151 CPC. The main reason for seeking the

amendment in the written statement is that the defendant is

the house wife and earlier was assisted by his son, namely,

Sunit Gup