Division Bench dismissed appeal against Single Judge's rejection of amendment application in partition suit. Court held adjournment unsuitable due to 17-year pendency and lack of due diligence by appellant.
Appeal dismissed without merits; amendment application rejected; no further relief granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
$~30
* IN THE HIGH COURT OF DELHI AT NEW DELHI
ASHOK KUMAR KATHURIA ..... Appellant Through: Ms. Madhulika Agrawal for Mr. J.K. Singh, Adv.
versus
OM PRAKASH KATHURIA (THR LEGAL HEIRS) & ORS ..... Respondents
Through: None.
CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE A. K. CHAWLA
O R D E R % 05.07.2018
This is the seventh hearing of the appeal which is directed against an order of the learned Single Judge made in the course of a suit filed in the year 2001. We notice, at the outset, that on the six previous occasions adjournment was sought for on one ground or the other. Even today, adjournment was sought on the ground that the counsel Mr. J.K. Singh cannot attend the Court.
The Court is of the opinion that the adjournment in these circumstances cannot be granted given that the suit has been pending for more than 17 years.
FAO(OS) 84/2017 Page 1 of 3
The learned Single Judge by the impugned order rejected an application to amend the suit (IA No.91/2011) to the extent of amending the list of properties. The suit had sought partition; it appears that a similar request for amendment had been made earlier – through an application IA No.3005/2006 which was rejected on 26.05.2009. That order was appealed against before the Division Bench which rejected the appeal. The Single Judge noticed and held as follows:
“12. A perusal of the order dated 26.5.2009 shows that this Court noted that issues have already been framed on 5.2.2004 and that the matter has been lingering on for one reason or the other. The plaintiff has not concluded his evidence. The order also notes that the plaintiff has failed to make out a case of due diligence and has not even pleaded the facts to be incorporated. This Court also noted that after amendment Order 6 Rule 17 a distinction is made between pre-trial amendment and amendments after commencement of the trial. This Court relied upon the judgment of the Supreme Court in Vidyabhai and Ors. vs. Padmalatha and Ors., (2009) 2 SCC 409 and dismissed that application.
13. The facts as stated and were sought to be added by the amendment of the plaint in IA No.3005/2006 are substantially akin to the present application. The plaintiff on the face of it has not been diligent in pursuing the application. In view of the above and in view of the earlier order dated 26.5.2009 which decision is applicable to the present decision also, the present application is dismissed.”
Having regard to the fact that the amendment sought was in respect of properties of which the appellant was quite aware of, but FAO(OS) 84/2017 Page 2 of 3
was not diligent in making and seeking amendments at the appropriate stage and, furthermore, given the earlier abortive attempt, this Court is of the opinion that the Single Judge could not be faulted for rejecting the application for amendment of the plaint.
FAO(OS) 84/2017 is therefore dismissed without any merits.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
JULY 05, 2018 kks
Page 3 of 3
FAO(OS) 84/2017
2 issues framed by the court
Whether an application for amendment of list of properties in a partition suit can be allowed after more than a decade when plaintiff failed to exercise due diligence.
Whether the High Court was justified in dismissing the appeal without merits given the prolonged pendency and lack of due diligence.
Colour shows how this judgement treated each authority
Vidyabhai and Ors. vs. Padmalatha and Ors.Referred¶14
Vidyabhai and Ors. vs. Padmalatha and Ors., (2009) 2 SCC 409 · Who else cites this
Ashok Kumar Kathuria
Om Prakash Kathuria
S. Ravindra Bhat
A. K. Chawla
As recorded by the court registry
An appeal to a Division Bench against an order made by a single judge on the original side of the High Court.
Judgements on the same questions, provisions and authorities, from every court
