IN THE COURT OF SH. Name of the judge, Ld. ADJ
East District, Karkardooma Courts, Delhi
CS/Suit number/Year of suit number
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
N.D.O.H.: Month of next date of hearing 2024
| 1. | Written Statement on behalf of Defendant No.1, namely Defendant No.1's name, Defendant No.2, namely Defendant No.2's name, and Defendant No.3, namely Defendant No.3's name, to the captioned suit, along with supporting affidavits | |
| 2. | Reply, for and on behalf of Defendant No.1, namely Defendant No.1's name, Defendant No.2, namely Defendant No.2's name, and Defendant No.3, namely Defendant No.3's name, to the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, along with supporting affidavits | |
| 3. | Application under Order 8 Rule 1 of the CPC seeking condonation of delay in filing the accompanying Written Statement on behalf of Defendant Nos. 1 to 3, along with supporting affidavits | |
DelhiDEFENDANT NOS. 1 TO 3
(Through SPA Holder)
THROUGH:
DATED:
SPA holder's name
ADVOCATES AND LEGAL CONSULTANTS
Counsel's address
NEW DELHI – 110014
IN THE COURT OF SH. Name of the judge, Ld. ADJ
East District, Karkardooma Courts, Delhi
CS/Suit number/Year of suit number
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
N.D.O.H.: Month of next date of hearing 2024
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO.1, DEFENDANT NO.2 AND DEFENDANT NO.3, Description of defendants 1 to 3
At the outset, it is submitted that the Plaint is liable to be rejected at the threshold, as the reliefs sought therein are not only legally untenable but the Plaint has also been instituted by concealment of material facts, information and crucial documents. Before adverting to the preliminary objections regarding the maintainability of the suit and the para-wise reply to the averments in the Plaint, a brief and truthful factual narrative is set out below in order to place the correct position before this Hon'ble Court.
TRUE AND CORRECT FACTUAL NARRATIVE BY WAY OF PRELIMINARY SUBMISSIONS:
a.That Late Sh. Name of common ancestor's brother, son of Late Sh. Name of the two brothers' father, and Late Sh. Name of common ancestor (Inder Singh) were brothers, and after the demise of their father, they were admittedly the owners of 975 sq. yds. in Khasra No. Khasra number/Khasra number, Khata No. Khata number/Khata number, situated in the Abadi of Village Village name, Delhi-51.
b.Admittedly, Late Sh. Name of common ancestor (Inder Singh), son of Late Sh. Name of the two brothers' father, had been the recorded owner of 487.5 sq. yds. in Khasra No. Khasra number/Khasra number, Khata No. Khata number/Khata number, situated in the Abadi of Village Village name, Delhi-51, Clarificatory description, and had been in separate, divided and exclusive possession of his share. Admittedly, after the death of Late Sh. Name of Inder Singh's son (deceased), his sons, namely Sh. Name of Inder Singh's son (1) and Sh. Name of Inder Singh's son (2), conferred ownership of 353.5 sq. yds. in Khasra No. Khasra number, situated in the Abadi of Village Village name, Delhi-51, being part of the Name of branch whose portion was sold's portion, Clarificatory description, upon Late Sh. Name of recipient of 353.5 sq yds.
c.Admittedly, the suit property was sold by Late Sh. Name of erstwhile seller of suit property in favour of Name of first purchaser and Name of first purchaser Surname of first purchasers vide registered Irrevocable GPA dated Date of GPA, ATS dated Date of ATS, Will dated Date of Will, Affidavit dated Date of affidavit and Receipt dated Date of receipt.
d.Admittedly, the suit property was thereafter sold by Name of transferor (first purchaser) to Mr. Name of second purchaser vide registered Sale Deed dated Date of sale deed.
e.Admittedly, the suit property was thereafter sold by Mr. Name of second purchaser, Clarificatory description, vide registered Sale Deed dated Date of sale deed, and in this manner the answering defendants admittedly became the bona fide owners of the suit property.
PRELIMINARY OBJECTIONS TO THE MAINTAINABILITY OF THE SUIT:
a.WITHOUT PREJUDICE TO THE FOREGOING, THE PRESENT SUIT IS LIABLE TO BE DISMISSED ON ACCOUNT OF SEEKING A 'PART PARTITION' OF THE PROPERTY:
•The Plaintiff has, in the Plaint itself, admitted that the answering defendants are the owners of 353.5 sq. yds. out of the share of Late Sh. Name of Inder Singh's son (deceased), i.e., 487.5 sq. yds. It is the case of the Plaintiff that the shares of Name of first brother (co-owner) and Name of second brother (co-owner) are joint, admeasuring together 975 sq. yds., and that since the shares of Late Sh. Name of first brother (co-owner) and Late Sh. Name of second brother (co-owner) are under joint ownership, the suit property also forms part of that joint ownership, they having inherited the share of Late Sh. Name of the two brothers' father. However, the alleged partition has been sought only in respect of the suit property, admeasuring 353.5 sq. yds., and not in respect of the entire 975 sq. yds. Thus, even on the basis of the pleadings and averments contained in the Plaint, the suit deserves dismissal at the threshold on account of the alleged partition being sought only in part, i.e., in respect of the suit property admeasuring 353.5 sq. yds., instead of the alleged partition of the entire 975 sq. yds. being the alleged joint share of Late Sh. Name of first brother (co-owner) and Late Sh. Name of second brother (co-owner).
b.WITHOUT PREJUDICE TO THE FOREGOING, THE NON-JOINDER OF NECESSARY PARTIES TO THE SUIT, AND THE ABSENCE OF ANY CHALLENGE TO THE ERSTWHILE AS WELL AS THE PRESENT TITLE DOCUMENTS IN FAVOUR OF THE ANSWERING DEFENDANTS IN RESPECT OF THE SUIT PROPERTY, RENDER THE SUIT LIABLE TO BE DISMISSED AT THE THRESHOLD:
•Reference is invited to paragraph 10 of the Plaint, wherein specific reference has been made to the other connected first suit filed by Defendant No.9, Name of Defendant No.9. Admittedly, in the said first suit, the answering defendants and the other defendants had categorically and unequivocally disclosed that the answering defendants are the owners of the suit property. The answering defendants had further filed the title documents in the said first suit, which explicitly set out the details of the erstwhile owners as well as the title documents. Thus, despite having active knowledge of the existence of the erstwhile title documents as well as the erstwhile title holders, neither have the erstwhile title documents been challenged till date, nor have the present title documents in favour of the answering defendants been challenged in the present suit. It is further pertinent to note that the erstwhile title holders/erstwhile owners of the suit property have not been impleaded in the present suit, and no relief has been sought against them. In light of the aforesaid, it is evident that the suit is liable to be dismissed on account of the non-joinder of necessary parties and the absence of any challenge to the erstwhile and present title documents in favour of the answering defendants.
c.WITHOUT PREJUDICE TO THE FOREGOING, THE SUIT IS LIABLE TO BE DISMISSED ON ACCOUNT OF LIMITATION IN RESPECT OF ALL THE RELIEFS:
•The suit is hopelessly barred by limitation, as would be evident from the averments and pleadings of the Plaintiff. Admittedly, an essential paragraph of the Plaint, namely the one stating "when the cause of action for filing the plaint arose", is missing from the averments in the Plaint. The suit deserves dismissal on this count alone. Even assuming, for the sake of argument, that such a glaring illegality is overlooked and an attempt is made to decipher the cause of action from the pleadings, it is evident that the present suit is hopelessly barred by limitation on the basis of the following foundational facts:
-The Plaintiff has acknowledged in the present suit the filing of the first suit by Defendant No.9, i.e., the Plaintiff's brother, in Year of filing of 1st suit. However, the present relief of declaration is being sought in the present suit filed on Date of filing of present suit, Year of filing of present suit, i.e., after a period of more than 3 years. Upon the filing of the present suit, the answering defendants were taken aback by the untenable claims of the Plaintiff vis-à-vis the title to the suit property. The answering defendants thereupon made enquiries with the erstwhile owners and learnt that, even in the past, legal proceedings had been instituted between Late Sh. Name of first ancestor in prior litigation Surname of first ancestor, Name of second ancestor in prior litigation Surname of second ancestor and others, on the one hand, and the erstwhile owner of the suit property, Name of erstwhile owner of suit property, on the other. Despite diligent efforts spanning the last two months, the answering defendants have been able to procure only certain documents, namely the statement of Late Sh. Name of deceased party to prior compromise, recording that Name of Smt Basanti Devi had compromised Suit No. Prior suit number with the erstwhile owner, Name of erstwhile owner in compromise, titled as Name of Smt Basanti, widow of Late Sh. Father's name of Smt Basanti, and Sh. Name of Smt Basanti's son, son of Late Sh. Father's name of Smt Basanti's son versus Name of first defendant in prior suit, widow of Late Sh. Father's name of first defendant, Sh. Name of other defendant in prior suit, Sh. Name of other defendant in prior suit and others. As of now, the answering defendants have been able to procure only 3 pages of the said record, and they reserve their right to file the complete set of relevant documents as and when the same is procured. The Plaintiff may be put to strict proof of the contrary, inasmuch as, despite being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present suit. Admittedly, the said suit was duly compromised and settled, and in light thereof the present suit deserves dismissal on account of Order 2 Rule 2 read with Section 11 of the CPC. The cause of action, if any, therefore stood exhausted as far back as Year of prior compromise. The suit is thus hopelessly barred by limitation.
-The relief of partition is not maintainable, as only 'part partition' is sought by the Plaintiff.
-Furthermore, the relief of possession has neither been valued in the Plaint, nor has any court fee been paid thereon. Thus, no basis whatsoever has been made out to seek the relief of possession. In any case, the Plaintiff admittedly has not been in possession of the Suit Property for more than 12 years. Thus, even the relief of possession is not legally sustainable.
Basis the settled jurisprudence on the said issues, and the judgments of the Hon'ble High Court and the Hon'ble Supreme Court thereon, the Suit is liable to be dismissed at the threshold.
d.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL ON ACCOUNT OF THE BAR UNDER ORDER-2, RULE-2, HAVING REGARD TO THE ERSTWHILE SUIT, I.E. THE 1ST SUIT:
Admittedly, the Plaintiff, by his own admission in the Plaint, was duly aware of the 1st Suit filed by the Defendant No.9/his brother. Admittedly, the 1st Suit was filed in Year of filing of 1st suit. It is further an admitted position on record that Order 2 Rule 2 mandates that a plaintiff must include his entire claim pertaining to a specific cause of action in one lawsuit. If the plaintiff, intentionally or unintentionally, omits a part of his claim, he cannot file a separate suit in respect thereof without the court's permission. In any case, the present Suit is also barred on account of the erstwhile Suit pending before the Court. It is an admitted position that the Plaintiff was aware of the 1st Suit since its inception; thus, no refuge can be taken to the effect that he was not aware of the 1st Suit. The present Suit is, therefore, liable to be dismissed on this count alone.
e.WITHOUT PREJUDICE, A PERUSAL OF THE 1ST SUIT FILED BY GAURAV SHARMA [THE DEFENDANT NO.9] SHOWS THAT THE PRESENT SUIT IS NOT ONLY A COLLUSIVE SUIT BUT ALSO A CONTUMACIOUS ATTEMPT TO USURP THE SUIT PROPERTY.
The following instances/particulars, as decipherable from the pleadings of the parties, lead to the unequivocal conclusion that the present Suit has been filed not only as a collusive suit but also mala fide and in order to extort money from the answering Defendants. Such instances inter alia include:
•Reference to the memo of parties shows that the address of the Plaintiff, i.e. Plaintiff's address in 1st suit, in the 1st Suit, and Plaintiff's name/address in present suit/Plaintiff in the present Suit, is similar.
•At the instance of the 1st Suit itself, the Plaintiff therein knew that neither he nor his family members were, in any manner, owners of the Suit Property. Admittedly, the Plaintiff in the present Suit also confirms that the filing of the 1st Suit was within his knowledge. Thus, when a prayer for partition is allegedly sought vide the present Suit, it is undecipherable as to how, in the 1st Suit, the Plaintiff therein claimed to be the owner of the Suit Property.
•Allegedly, the joint ownership of the partitionable land in favour of Late Sh. Name of first brother (co-owner) and Late Sh. Name of second brother (co-owner) is around 975 sq. yds. However, the alleged partition is sought only in respect of around 353.5 sq. yds. The only untenable explanation offered is that the rest of the portion is under illegal possession, and thus the alleged partition is sought only qua the Suit Property, i.e. 353.5 sq. yds. The aforesaid speaks volumes about the conduct and the real intent/motive of the Plaintiff and his family members.
•Even in the past, legal proceedings were instituted between Late Sh. Name of first ancestor in prior litigation Surname of first ancestor, Name of second ancestor in prior litigation Surname of second ancestor, etc., and the erstwhile owner of the Suit Property, being Name of erstwhile owner of suit property, being Suit No.Prior suit number, and the same was withdrawn by Late Sh. Name of plaintiff's father, i.e. the father of the Plaintiff. Furthermore, no partition or other relief as allegedly sought vide the present Suit was preferred. Admittedly, the said Suit was duly compromised and settled, and thus, in light of the aforesaid facts, the present Suit deserves dismissal on account of Order-2, Rule-2 read with Section-11 of the CPC.
f.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL ON ACCOUNT OF PECUNIARY LIMIT/JURISDICTION AND ON THE COUNT OF ERRONEOUS VALUATION OF THE SUIT AND NON-PAYMENT OF COURT FEE ON THE RELIEF OF POSSESSION:
Allegedly, the joint ownership of the partitionable land in favour of Late Sh. Name of first brother (co-owner) and Late Sh. Name of second brother (co-owner) is around 975 sq. yds. However, the alleged partition is sought only in respect of around 353.5 sq. yds, and accordingly the Suit has been valued at Suit valuation (₹)/-. It is settled law that a Suit for partition cannot be entertained in part, and thus, for determining the pecuniary limit, the valuation ought to be as per the complete partitionable land, i.e. 975 sq. yds, as alleged by the Plaintiff himself. If that be so, the Suit, for the basis of the pecuniary limit, would be valued at around 5 crores, which clearly disentitles this Hon'ble Court from proceeding further. Thus, the Suit deserves dismissal on this count alone.
g.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL WITH COSTS ON ACCOUNT OF MATERIAL CONCEALMENT OF PREVIOUS SETTLEMENTS IN SUITS WITH THE ERSTWHILE OWNERS:
That upon the filing of the present Suit, the answering Defendants were aghast at the untenable claims of the Plaintiff vis-à-vis the title to the Suit Property. In lieu thereof, the answering Defendants made inquiries with the erstwhile owners and learnt that even in the past, legal proceedings had been instituted between Late Sh. Name of first ancestor in prior litigation Surname of first ancestor, Name of second ancestor in prior litigation Surname of second ancestor, etc., and the erstwhile owner of the Suit Property, being Name of erstwhile owner of suit property. In spite of diligent efforts over the last two months, the answering Defendants could procure only some documents, being the Statement of Late Sh. Name of deceased party to prior compromise, Name of Smt Basanti compromised the Suit No. Name of erstwhile owner in compromise, erstwhile owner- Father's name of Smt Basanti, titled as Smt. Name of Smt Basanti W/o Late Sh. Name of Smt Basanti's son and Sh. Father's name of Smt Basanti's son S/o Late Sh. Name of first defendant in prior suit Vs Father's name of first defendant/o Late Sh. Name of other defendant in prior suit, Sh. Name of other defendant in prior suit, Sh. Name of common ancestor (Inder Singh) and Ors. The answering Defendants could procure only 3 pages as of now and reserve their right to file the complete set of relevant documents as and when the same are procured. The Plaintiff be put to strict proof on the same, as in spite of being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present Suit. Admittedly, the said Suit was duly compromised and settled, and thus, in light of the aforesaid facts, the present Suit deserves dismissal on account of Order-2, Rule-2 read with Section-11 of the CPC.
h.WITHOUT PREJUDICE, THE ALLEGED WILL DATED 22.03.1956, BY VIRTUE OF WHICH THE GRANDFATHER OF THE PLAINTIFF BECAME THE OWNER OF THE SUIT PROPERTY, HAS NEITHER BEEN ATTACHED NOR HAS ANY PROOF QUA THE CONTENTS THEREOF BEEN FILED ON RECORD. THUS, ON THIS GROUND ALONE, THE SUIT DESERVES DISMISSAL AT THE OUTSET.
PARA-WISE REPLY:
Reply to Para-1:
1.It is submitted that the answering Defendants are successive purchasers of the Suit Property, and the averments stated in para-1 are not within the personal knowledge of the answering Defendants. However, the answering Defendants would acquiesce in the averments in the said para, if proved on record by the Plaintiff. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-2:
2.In reply to the said para-2, it is submitted that the devolution of title of the answering Defendants emanates from Late Sh. Name of Inder Singh's son (1). It is the case of the Plaintiff that Name of common ancestor (Inder Singh), pursuant to an Oral Partition, acquired 975 sq. yds, and after the death of Late Sh. Name of common ancestor (Inder Singh), the said 975 sq. yds devolved solely upon his two (2) sons, namely Late Sh. Name of Inder Singh's son (2) and Late Sh. Name of common ancestor (Inder Singh), whereby both the sons admittedly acquired 487.5 sq. yds each, respectively. It is further submitted that both the sons had duly partitioned the property and were in separate and exclusive possession of their respective portions, as admittedly, no record or proof to claim possession by the Plaintiff or any of his family members over the Suit Property has ever been filed on record. The family tree so filed is denied for want of knowledge. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-3:
3.In reply to the said para-3, it is submitted that the devolution of title of the answering Defendants emanates from Late Sh. Name of Inder Singh's son (1). It is the case of the Plaintiff that Name of common ancestor (Inder Singh), pursuant to an Oral Partition, acquired 975 sq. yds, and after the death of Late Sh. Name of common ancestor (Inder Singh), the said 975 sq. yds devolved solely upon his two (2) sons, namely Late Sh. Name of Inder Singh's son (2) and Late Sh. Name of Inder Singh's son (deceased), whereby both the sons admittedly acquired 487.5 sq. yds each, respectively. It is further submitted that both the sons had duly partitioned the property and were in separate and exclusive possession of their respective portions, as admittedly, no record or proof to claim possession by the Plaintiff or any of his family members over the Suit Property has ever been filed on record. Without prejudice, the Plaintiff in the Plaint itself affirms that the answering Defendants are owners of 353.5 sq. yds out of Name of first brother (co-owner)'s share, i.e. 475 sq. yds. It is the case of the Plaintiff that Name of second brother (co-owner)'s share and Name of first brother (co-owner)'s share jointly admeasure 975 sq. yds, and that as the shares of Late Sh. Name of second brother (co-owner) and Late Sh. Name of the two brothers' father are under joint ownership, the Suit Property also forms part of the joint ownership, as they have inherited Late Sh. Name of first brother (co-owner)'s share. However, interestingly, the alleged partition has been sought only of the Suit Property, which is 353.5 sq. yds, and not of 975 sq. yds. Thus, even on the basis of the pleadings/averments in the Plaint, the Suit deserves dismissal at the threshold on account of seeking the alleged partition in part, i.e. the Suit Property being 353.5 sq. yds, instead of seeking the alleged partition of 975 sq. yds, being the alleged joint share of Late Sh. Name of second brother (co-owner) and Late Sh. Name of unmarried ancestor. Therefore, it is denied that at present the undivided portion in the property measuring 353.55 sq. yds out of Khasra No. 25/29, situated at Village Khureji, Khas, Delhi-31, out of the total property, i.e. 975 sq. yds, is available for the purpose of partition among the parties to the Suit, since the remaining portion of the property is in the illegal and unlawful possession of other occupants. It is further denied that the aforesaid portion of 353.55 sq. yds is shown in red colour in the site plan as Annexure-P/3. That any claim of a 1/20th undivided share in 353.55 sq. yds, which comes to 17.65 sq. yds as the share of the Plaintiff, is legally untenable and incomprehensible. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-4:
4.That the contents of para no. 4 of the captioned Suit are wrong and hence denied. It is denied that the aforesaid Date of alleged Will in favour of grandfather, handicapped and unmarried, bequeathed his share, including the share in the Suit Property, by virtue of a Will Deed dated Name of plaintiff's grandfather in favour of the grandfather of the Plaintiff, namely Sh. Date of alleged Will in favour of grandfather. It is submitted that the alleged Will dated Name of plaintiff's grandfather has neither been attached with the Suit, nor have the contents thereof been stated or proved in the Suit. It is submitted that without attaching the alleged Will, reliance thereon cannot be placed. Without prejudice, the answering Defendants reserve their right to reply and plead further once the alleged Will is brought on record. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-5:
5.That the contents of para no. 5 of the captioned Suit are wrong and denied. It is denied that in the year 1960, the grandfather of the Plaintiff, namely Sh. Name of adoptive father, who claimed to be an adopted son of Name of deceased predecessor and also the successor of Late Sh. Name of executor of 1956 Will, succeeded by virtue of the Will dated 22.03.1956 executed by Sh. Beneficiary of 1956 Will in favour of Sh. Name of plaintiff's grandfather. It is further denied that Mr. Plaintiff's name in suit 316/60 had filed a civil suit no. 316/60, titled as "Defendant's name in suit 316/60 vs Sh. Name of landowner in suit 316/60 and Ors.", before the Court of the Ld. Sub-Judge, Delhi, for a suit for possession of the land of Sh. Name of deceased landowner, i.e. a 21/144 share of the land measuring 314 Begha and 8 Biswa of the deceased Sh. RCA number's land. It is further denied that the aforesaid Name of plaintiff's grandfather, grandfather of the Plaintiff, had filed an appeal vide RCA No. Date of judgement/decree against the aforesaid judgement/decree dated Date of appellate order before the Ld. ADJ, Delhi, which was partly allowed vide order dated Owner held under Will, wherein it was held that Sh. Original landowner name became the owner of the land of Sh. Date of Will by virtue of a Will Deed dated Date of appellate order, vide its order dated Name of respondent in second appeal. It is further denied that the two respondents, namely Sh. Name of respondent in second appeal and Sh. Second appeal RCA number, in the said appeal had filed a second appeal vide RCA No. Date of High Court judgement against the judgment of the First Appellate Court before the Hon'ble High Court of Delhi at New Delhi. It is further denied that the Hon'ble High Court confirmed the findings/judgement dated Date of 1956 Will passed by the First Appellate Court, wherein it was proved that the said Will Deed dated Date of 1956 Will was proved by the grandfather of the Plaintiff, namely Sh. Name of plaintiff's grandfather. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-6:
6.That the contents of para no. 6 of the captioned Suit are wrong and hence specifically denied. It is denied that the grandfather of the Plaintiff, namely Sh. Name of predecessor under Will, was the successor of Sh. Date of Will by virtue of a Will dated Name of executor of Will executed by Sh. Name of beneficiary of Will in favour of Sh. Name of deceased property owner in respect of the properties of Sh. Name of deceased property owner, and that the Suit Property is originally part of the estate of deceased Sh. Name of deceased property owner and Sh. Date of alleged Will. It is submitted that the alleged Will dated Name of predecessor of suit property has neither been attached with the Suit, nor have the contents thereof been stated or proved in the Suit. It is submitted that without attaching the alleged Will, reliance thereon cannot be placed. Without prejudice, the answering Defendants reserve their right to reply and plead further once the alleged Will is brought on record. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Paras-7 and 8:
7.That the contents of paras nos. 7 and 8 of the captioned Suit are admitted to the extent that the Defendant Nos. 1, 2 and 3 have claimed to purchase the Suit Property from the successors of Name of ancestor (Kale). It is denied that, since no partition had taken place between Name of predecessor of suit property and Name of ancestor (Kale) in respect of the Suit Property in their lifetime, the Defendant Nos. 1, 2 and 3 are in possession of the undivided portion of the Suit Property. It is further denied that they have stepped into the shoes of the successors of Name of common ancestor (Inder Singh) and hence they are in possession of the Suit Property as co-owners only, and that they cannot claim to purchase any specific portion of the Suit Property by virtue of their sale documents. It is submitted that the devolution of title of the answering Defendants emanates from Late Sh. Name of Inder Singh's son (1). It is the case of the Plaintiff that Name of common ancestor (Inder Singh), pursuant to an Oral Partition, acquired 975 sq. yds, and after the death of Late Sh. Name of common ancestor (Inder Singh), the said 975 sq. yds devolved solely upon his two (2) sons, namely Late Sh. Name of Inder Singh's son (2) and Late Sh. Name of first ancestor in prior litigation, whereby both the sons admittedly acquired 487.5 sq. yds each, respectively. It is further submitted that both the sons had duly partitioned the property and were in separate and exclusive possession of their respective portions, as admittedly, no record or proof to claim possession by the Plaintiff or any of his family members over the Suit Property has ever been filed on record. That upon the filing of the present Suit, the answering Defendants were aghast at the untenable claims of the Plaintiff vis-à-vis the title to the Suit Property. In lieu thereof, the answering Defendants made inquiries with the erstwhile owners and learnt that even in the past, legal proceedings had been instituted between Late Sh. Surname of first ancestor Name of second ancestor in prior litigation, Surname of second ancestor Name of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, being Name of deceased party to prior compromise. In spite of diligent efforts over the last two months, the answering Defendants could procure only some documents, being the Statement of Late Sh. Name of Smt Basanti, Prior suit number compromised the Suit No. Name of erstwhile owner in compromise/1995 with the erstwhile owner- Father's name of Smt Basanti, titled as Name of Smt Basanti W/o Late Sh. Name of Smt Basanti's son and Sh. Father's name of Smt Basanti's son S/o Late Sh. Name of first defendant in prior suit Vs Father's name of first defendant W/o Late Sh. Name of other defendant in prior suit, Sh. Name of other defendant in prior suit, Sh. Date of legal notice and Ors. The answering Defendants could procure only 3 pages as of now and reserve their right to file the complete set of relevant documents as and when the same are procured. The Plaintiff be put to strict proof on the same, as in spite of being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present Suit. Admittedly, the said Suit was duly compromised and settled, and thus, in light of the aforesaid facts, the present Suit deserves dismissal on account of Order-2, Rule-2 read with Section-11 of the CPC. It is denied that the Plaintiff and Defendant Nos. 4 to 9 are also co-owners of the Suit Property, and therefore that they are legally entitled to get their share in the partition of the Suit Property by metes and bounds. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-9:
8.It is denied that any such legal notice dated Name of Defendant No.9 was received by the answering Defendants. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-10:
9.In response, it is submitted that in spite of the fact that the Plaintiff's address in 1st suit/Defendant No.9 knew that the ownership of the Suit Property was with the answering Defendants, the answering Defendants were still not impleaded. Furthermore, the construction, if any, had been undertaken by the answering Defendants, and in case of any deviation, if so pointed out by the MCD, the answering Defendants shall carry out the requisite repairs. With reference to the 1st Suit, the following instances/particulars, as decipherable from the pleadings of the parties, lead to the unequivocal conclusion that the present Suit has been filed not only as a collusive suit but also mala fide and in order to extort money from the answering Defendants. Such instances inter alia include:
•Reference to the memo of parties shows that the address of the Plaintiff, i.e. Plaintiff's name/address in present suit, in the 1st Suit, and Name of first brother (co-owner)/Plaintiff in the present Suit, is similar.
•At the instance of the 1st Suit itself, the Plaintiff therein knew that neither he nor his family members were, in any manner, owners of the Suit Property. Admittedly, the Plaintiff in the present Suit also confirms that the filing of the 1st Suit was within his knowledge. Thus, when a prayer for partition is allegedly sought vide the present Suit, it is undecipherable as to how, in the 1st Suit, the Plaintiff therein claimed to be the owner of the Suit Property.
•Allegedly, the joint ownership of the partitionable land in favour of Late Sh. Name of second brother (co-owner) and Late Sh. Name of first ancestor in prior litigation is around 975 sq. yds. However, the alleged partition is sought only in respect of around 353.5 sq. yds. The only untenable explanation offered is that the rest of the portion is under illegal possession, and thus the alleged partition is sought only qua the Suit Property, i.e. 353.5 sq. yds. The aforesaid speaks volumes about the conduct and the real intent/motive of the Plaintiff and his family members.
•Even in the past, legal proceedings were instituted between Late Sh. Surname of first ancestor Name of second ancestor in prior litigation, Surname of second ancestor Name of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, being Prior suit number, being Suit No.Name of plaintiff's father/1995, and the same was withdrawn by Late Sh. Year of filing of 1st suit, i.e. the father of the Plaintiff. Furthermore, no partition or other relief as allegedly sought vide the present Suit was preferred. Admittedly, the said Suit was duly compromised and settled, and thus, in light of the aforesaid facts, the present Suit deserves dismissal on account of Order-2, Rule-2 read with Section-11 of the CPC.
Reply to Paras-11 and 12:
10.That in response to the contents of para no. 11 of the captioned Suit, it is submitted that the Suit Property is the absolute and exclusive property of the answering Defendants, purchased as described hereinabove, and the possession of the Suit Property is also absolutely and exclusively with the answering Defendants. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity. It is further denied that the answering Defendants were deriving any unlawful benefit. The Suit Property is the exclusive property of the answering Defendants. That the contents of para no. 12 of the captioned Suit are wrong and hence specifically denied. It is denied that the Defendant Nos. 1 to 3 have illegally claimed to be the absolute owners of the Suit Property and denied the claim of the Plaintiff to be an owner of the Suit Property, and that therefore it was necessary to seek a declaration to the effect that the Plaintiff is also a co-owner of the Suit Property along with the other co-owners. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Paras-13 and 14:
11.That in response to the contents of paras nos. 13 and 14 of the said Suit, the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity. That the contents of para no. 14 of the captioned Suit are wrong and hence specifically denied. It is denied that there is a clear cause of action to file the present Suit against the Defendants, especially the Defendant Nos. 1 to 3. It is submitted that the Plaintiff has intentionally not disclosed the exact date and year when the alleged cause of action for filing the present Suit arose, as the present Suit is hopelessly time-barred. That the contents of the preliminary submissions and objections may be treated as part and parcel of the present para, and the same are not repeated herein for the sake of brevity.
Reply to Para-15:
12.In response to para-15, it is submitted that the Suit is hopelessly barred by limitation. Reference is made to the averments and pleadings of the Plaintiff. Admittedly, the essential paragraph in the Plaint, being "when the cause of action for filing the plaint arose", is missing from the averments in the Plaint. The Suit deserves dismissal on this count alone. Even, for the sake of argument, if such a glaring illegality is overlooked and an attempt is made to decipher the cause of action from the pleadings, it is amply evident that the present Suit is hopelessly barred by limitation, basis the following foundational facts:
-Without prejudice, there is express acknowledgment by the Plaintiff in the present Suit qua the filing of the 1st Suit by the Defendant No.9, i.e. the Plaintiff's brother, in Date of filing of present suit. However, the present relief for declaration is being sought vide the present Suit in Name of first ancestor in prior litigation, i.e. after more than 3 years. That upon the filing of the present Suit, the answering Defendants were aghast at the untenable claims of the Plaintiff vis-à-vis the title to the Suit Property. In lieu thereof, the answering Defendants made inquiries with the erstwhile owners and learnt that even in the past, legal proceedings had been instituted between Late Sh. Surname of first ancestor Name of second ancestor in prior litigation, Surname of second ancestor Name of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, being Name of deceased party to prior compromise. In spite of diligent efforts over the last two months, the answering Defendants could procure only some documents, being the Statement of Late Sh. Name of Smt Basanti, Prior suit number compromised the Suit No. Name of erstwhile owner in compromise with the erstwhile owner- Father's name of Smt Basanti, titled as Name of Smt Basanti W/o Late Sh. Name of Smt Basanti's son and Sh. Father's name of Smt Basanti's son S/o Late Name of first defendant in prior suit W/o Late Sh. Father's name of first defendant, Sh. Name of other defendant in prior suit, Sh. Year of prior compromise and Ors. The answering Defendants could procure only 3 pages as of now and reserve their right to file the complete set of relevant documents as and when the same are procured. The Plaintiff be put to strict proof on the same, as in spite of being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present Suit. Admittedly, the said Suit was duly compromised and settled, and thus, in light of the aforesaid facts, the present Suit deserves dismissal on account of Order-2, Rule-2 read with Section-11 of the CPC. Therefore, the cause of action, if any, had been exhausted way back in Advocate's name. Thus, the Suit is hopelessly barred by limitation.
-The relief of partition is not maintainable, as only 'part partition' is sought by the Plaintiff.
-Furthermore, the relief of possession has neither been valued in the Plaint, nor has any court fee been paid thereon. Thus, no basis whatsoever has been made out to seek the relief of possession. In any case, the Plaintiff admittedly has not been in possession of the Suit Property for more than 12 years. Thus, even the relief of possession is not legally sustainable.
Basis the settled jurisprudence on the said issues, and the judgments of the Hon'ble High Court and the Hon'ble Supreme Court thereon, the Suit is liable to be dismissed at the threshold.
Reply to Para-16:
13.Needs no reply.
Reply to Para-17:
14.The averment in the said para is wrong, as admittedly, the 1st Suit had been filed with the prior knowledge, consent and approval of the Plaintiff herein. Thus, the present Suit deserves dismissal on this count alone.
Reply to Prayer Clause:
All prayers are liable to be dismissed in light of the above preliminary submissions, preliminary objections and responses hereinabove.
DELHIDEFENDANTS NO.1 TO 3
(THROUGH SPA HOLDER)
THROUGH
DATED:
Counsel's address
ADVOCATES AND LEGAL CONSULTANTS
Date of verification (day)
NEW DELHI – 110014.
VERIFICATION
Verified at Place of verification on this Date of verification (month) day of Suit number that the contents of paragraphs 1 to 17 of the written statement are true and correct to the knowledge of the answering defendants and as per legal information received and believed to be true; and, further, that the contents of paragraphs (a) to (h) of the preliminary submissions and objections are true and correct to the knowledge of the answering defendants and as per legal information received and believed to be true.
Last is the prayer to this Hon'ble Court.
DEFENDANTS NO.1 TO 3
(THROUGH SPA HOLDER)
IN THE COURT OF Name of presiding judge, Ld. ADJ,
Court district and complex.
CS/Plaintiff's name/Year of filing of present suit.
IN THE MATTER OF :-
Defendants' name: PLAINTIFF
VERSUS
Name of Inder Singh's son (deceased): DEFENDANTS
REPLY ON BEHALF OF THE DEFENDANTS NO.1 TO 3 TO THE APPLICATION OF THE PLAINTIFF FILED UNDER ORDER 39 RULES 1 & 2 OF CPC.
MOST RESPECTFULLY SHOWETH:-
At the outset, it is respectfully submitted that the answering Defendants No.1 to 3 have filed the accompanying written statement to the plaint in the above-noted case, which is pending before this Hon'ble Court, and the answering Defendants crave leave of this Hon'ble Court to refer to the pleas taken therein as part and parcel of the present reply.
PRELIMINARY OBJECTIONS:
a.WITHOUT PREJUDICE, THE PRESENT SUIT IS LIABLE TO BE DISMISSED ON ACCOUNT OF SEEKING 'PART PARTITION' OF THE PROPERTY:
The Plaintiff has, in the plaint itself, admitted that the answering Defendants are the owners of Area of suit property (sq. yds.) sq. yds. out of Name of first brother (co-owner)'s share, i.e. Share of first brother (sq. yds.) sq. yds. It is the case of the Plaintiff that the shares of Name of second brother (co-owner) and Name of first brother (co-owner) are jointly admeasuring Total joint land area (sq. yds.) sq. yds., and that, as the shares of Late Sh. Name of second brother (co-owner) and Late Sh. Name of the two brothers' father are under joint ownership, the Suit Property also forms part of the joint ownership, the Defendants having inherited Late Sh. Name of first brother (co-owner)'s share. However, the alleged partition has been sought only of the Suit Property, i.e. Area of suit property (sq. yds.) sq. yds., and not of the entire Total joint land area (sq. yds.) sq. yds. Thus, even on the basis of the pleadings and averments in the plaint, the suit deserves dismissal at the threshold on account of the alleged partition having been sought in part — i.e. of the Suit Property measuring Area of suit property (sq. yds.) sq. yds. — instead of the alleged partition of the entire Total joint land area (sq. yds.) sq. yds., being the alleged joint share of Late Sh. Name of second brother (co-owner) and Late Sh. Name of Defendant No.9.
b.WITHOUT PREJUDICE, THE NON-JOINDER OF NECESSARY PARTIES TO THE SUIT, AND THE FAILURE TO CHALLENGE THE ERSTWHILE AS WELL AS THE PRESENT TITLE DOCUMENTS IN FAVOUR OF THE ANSWERING DEFENDANTS QUA THE SUIT PROPERTY, RENDER THE SUIT LIABLE TO BE DISMISSED AT THE THRESHOLD:
Reference is made to paragraph 10 of the plaint, wherein specific reference has been made to the other connected 1st Suit filed by Defendant No.9 in Year of filing of 1st suit. Admittedly, in the 1st Suit, the answering Defendants and the other defendants had categorically and unequivocally disclosed that the answering Defendants are the owners of the Suit Property. The answering Defendants had further filed the title documents in the 1st Suit, which explicitly set out the details of the erstwhile owners as well as the title documents. Thus, despite active knowledge of the existence of the erstwhile title documents as well as the erstwhile title holders, neither the erstwhile title documents nor the present title documents in favour of the answering Defendants have, till date, been challenged by way of the present suit. It is further pertinent to note that the erstwhile title holders/erstwhile owners of the Suit Property have also not been impleaded in the present suit, and no relief has been sought against them. In light of the aforesaid, it is evident that the suit is liable to be dismissed on account of the non-joinder of necessary parties and the non-challenge to the erstwhile and present title documents in favour of the answering Defendants.
c.WITHOUT PREJUDICE, THE SUIT IS LIABLE TO BE DISMISSED ON ACCOUNT OF LIMITATION QUA ALL THE RELIEFS:
The suit is hopelessly barred by limitation, as is apparent from the averments and pleadings of the Plaintiff. Admittedly, the essential paragraph of the plaint — setting out "when the cause of action for filing the plaint arose" — is missing from the averments in the plaint. The suit deserves dismissal on this count alone. Even, for the sake of argument, if such a glaring illegality were to be overlooked and an attempt made to decipher the cause of action from the pleadings, it is evident that the present suit is hopelessly barred by limitation on the basis of the following foundational facts:
-The Plaintiff has, in the present suit, acknowledged the filing of the 1st Suit by Defendant No.9, i.e. the Plaintiff's brother, in Date of filing of present suit. However, the present relief of declaration is being sought by way of the present suit in Name of first ancestor in prior litigation, i.e. after more than 3 years. Pursuant to the filing of the present suit, the answering Defendants were taken aback by the untenable claims of the Plaintiff vis-à-vis the title to the Suit Property. In that regard, the answering Defendants made inquiries from the erstwhile owners and learnt that, even in the past, legal proceedings had been instituted between Late Sh. Surname of first ancestorName of second ancestor in prior litigation, Surname of second ancestorName of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, namely Name of deceased party to prior compromise. Despite diligent efforts over the last Duration of search for documents, the answering Defendants have been able to procure only some documents, namely the Statement of Late Sh. Name of Smt Basanti, whereby Prior suit number compromised Suit No. Name of erstwhile owner in compromise with the erstwhile owner, Father's name of Smt Basanti, titled as "Name of Smt Basanti W/o Late Sh. Name of Smt Basanti's son and Sh. Father's name of Smt Basanti's son S/o Late Sh. Name of first defendant in prior suit W/o Late Sh. Father's name of first defendant, Sh. Name of other defendant in prior suit, Sh. Name of first brother (co-owner) & Ors." The answering Defendants have, as of now, been able to procure only 3 pages, and they reserve their right to file the complete set of relevant documents as and when the same are procured. The Plaintiff may be put to strict proof in this regard, inasmuch as, despite being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present suit. Admittedly, the said suit was duly compromised and settled; therefore, in light of this fact, the present suit deserves dismissal on account of Order II Rule 2 read with Section 11 of the CPC. The cause of action, if any, thus stood exhausted as far back as Year prior suit was compromised. The suit is, therefore, hopelessly barred by limitation.
-The relief of partition is not maintainable, as only 'part partition' has been sought by the Plaintiff.
-Furthermore, the relief of possession has neither been valued in the plaint nor has any court fee been paid thereon. Thus, no basis whatsoever has been made out to seek the relief of possession. In any event, the Plaintiff has admittedly not been in possession of the Suit Property for more than 12 years; hence, even the relief of possession is not legally sustainable.
On the basis of the settled jurisprudence on the aforesaid issues, and the judgments of the Hon'ble High Court and the Hon'ble Supreme Court thereon, the suit is liable to be dismissed at the threshold.
d.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL ON ACCOUNT OF THE BAR UNDER ORDER II RULE 2, AS THE ERSTWHILE SUIT, I.E. THE 1ST SUIT, WAS PENDING:
Admittedly, the Plaintiff has, by his own admission in the plaint, acknowledged that he was duly aware of the 1st Suit filed by Defendant No.9, i.e. his brother. Admittedly, the 1st Suit was filed in Year of filing of 1st suit. It is further an admitted position on record that Order II Rule 2 mandates that a plaintiff must include his entire claim pertaining to a specific cause of action in one lawsuit; if the plaintiff, intentionally or unintentionally, omits a part of the claim, he cannot file a separate suit in respect thereof without the leave of the Court. In any event, the present suit is also barred on account of the erstwhile suit pending before the Court. It is an admitted position that the Plaintiff was aware of the 1st Suit from its inception; thus, no refuge can be taken of the contention that he was not aware of the 1st Suit. The present suit is, therefore, liable to be dismissed on this count alone.
e.WITHOUT PREJUDICE, A PERUSAL OF THE 1ST SUIT FILED BY Defendant No.9's name (DEFENDANT NO.9) SHOWS THAT THE PRESENT SUIT IS NOT ONLY A COLLUSIVE SUIT BUT IS ALSO A CONTUMACIOUS ATTEMPT TO USURP THE SUIT PROPERTY:
The following instances/particulars, decipherable from the pleadings of the parties, lead to the unequivocal conclusion that the present suit has been filed not only as a collusive suit but also mala fide, and in order to extort money from the answering Defendants. Such instances inter alia include:
•A reference to the memo of parties shows that the address of the Plaintiff, i.e. Defendant No.9's name, in the 1st Suit and of Plaintiff's name/Plaintiff in the present suit is similar.
•Even at the stage of the 1st Suit, the Plaintiff therein knew that neither he nor his family members were, in any manner, the owners of the Suit Property. Admittedly, the Plaintiff in the present suit also confirms that the filing of the 1st Suit was within his knowledge. Thus, when the prayer for partition is allegedly sought by way of the present suit, it is undecipherable as to how, in the 1st Suit, the Plaintiff therein claimed to be the owner of the Suit Property.
•Allegedly, the joint ownership of the partitionable land in favour of Late Sh. Name of second brother (co-owner) and Late Sh. Name of the two brothers' father is around Total joint land area (sq. yds.) sq. yds. However, the alleged partition is sought only in respect of around Area of suit property (sq. yds.) sq. yds. The only untenable explanation offered is that the rest of the portion is under illegal possession, and hence the alleged partition is sought only qua the Suit Property, i.e. Area of suit property (sq. yds.) sq. yds. The aforesaid speaks volumes about the conduct and the real intent/motive of the Plaintiff and his family members.
•Even in the past, legal proceedings had been instituted between Late Sh. Surname of first ancestorName of second ancestor in prior litigation, Surname of second ancestorName of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, being Prior suit number, being Suit No. Name of plaintiff's father, and the same was withdrawn by Late Sh. Name of first brother (co-owner), i.e. the father of the Plaintiff. Furthermore, no partition or other relief, as allegedly sought in the present suit, was ever preferred. Admittedly, the said suit was duly compromised and settled; therefore, in light of this fact, the present suit deserves dismissal on account of Order II Rule 2 read with Section 11 of the CPC.
f.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL ON ACCOUNT OF THE PECUNIARY LIMIT/JURISDICTION AND ON THE COUNT OF THE ERRONEOUS VALUATION OF THE SUIT AND THE NON-PAYMENT OF COURT FEE ON THE RELIEF OF POSSESSION:
Allegedly, the joint ownership of the partitionable land in favour of Late Sh. Name of second brother (co-owner) and Late Sh. Name of the two brothers' father is around Total joint land area (sq. yds.) sq. yds. However, the alleged partition is sought only in respect of around Area of suit property (sq. yds.) sq. yds., and accordingly the suit has been valued at Suit valuation (₹)/-. It is settled law that a suit for partition cannot be entertained in part, and thus, for the purpose of determining the pecuniary limit, the valuation ought to be as per the complete partitionable land, i.e. Total joint land area (sq. yds.) sq. yds., as alleged by the Plaintiff himself. If that be so, the suit, for the purpose of the pecuniary limit, would have to be valued at around Revised valuation amount, which clearly disentitles this Hon'ble Court from proceeding further. The suit therefore deserves dismissal on this count alone.
g.WITHOUT PREJUDICE, THE SUIT DESERVES DISMISSAL WITH COSTS ON ACCOUNT OF THE MATERIAL CONCEALMENT OF THE PREVIOUS SETTLEMENT IN SUITS WITH THE ERSTWHILE OWNERS:
Pursuant to the filing of the present suit, the answering Defendants were taken aback by the untenable claims of the Plaintiff vis-à-vis the title to the Suit Property. In that regard, the answering Defendants made inquiries from the erstwhile owners and learnt that, even in the past, legal proceedings had been instituted between Late Sh. Surname of first ancestorName of second ancestor in prior litigation, Surname of second ancestorName of erstwhile owner of suit property, etc., and the erstwhile owner of the Suit Property, namely Name of deceased party to prior compromise. Despite diligent efforts over the last Duration of search for documents, the answering Defendants have been able to procure only some documents, namely the Statement of Late Sh. Name of Smt Basanti, whereby Name of erstwhile owner in compromise compromised Suit No. Father's name of Smt Basanti with the erstwhile owner, Name of Smt Basanti's son, titled as "Smt. Name of Smt Basanti W/o Late Sh. Father's name of Smt Basanti's son and Sh. Name of first defendant in prior suit S/o Late Sh. Father's name of first defendant Vs. Name of other defendant in prior suit S/o Late Sh. Name of other defendant in prior suit, Sh. Advocate's name, Sh. Counsel's address & Ors." The answering Defendants have, as of now, been able to procure only 3 pages, and they reserve their right to file the complete set of relevant documents as and when the same are procured. The Plaintiff may be put to strict proof in this regard, inasmuch as, despite being aware of the prior settlement of the dispute, if any, the Plaintiff has unnecessarily and without any legal basis filed the present suit. Admittedly, the said suit was duly compromised and settled; therefore, in light of this fact, the present suit deserves dismissal on account of Order II Rule 2 read with Section 11 of the CPC.
h.WITHOUT PREJUDICE, THE ALLEGED WILL DATED Date of alleged will, BY VIRTUE OF WHICH THE GRANDFATHER OF THE PLAINTIFF ALLEGEDLY BECAME THE OWNER OF THE SUIT PROPERTY, HAS NEITHER BEEN ATTACHED NOR HAS ANY PROOF QUA ITS CONTENTS BEEN FILED ON RECORD. THUS, ON THIS GROUND ALONE, THE SUIT DESERVES DISMISSAL AT THE OUTSET.
PARA-WISE REPLY:-
1.That the contents of paragraph No.1 of the application are a matter of record; however, it is submitted that the suit filed by the Plaintiff is false and frivolous for the reasons stated in the written statement. It is submitted that the contents of the written statement may be read as part and parcel of the reply to the application under reply.
2.That the contents of paragraph No.2 of the application are wrong and denied. It is denied that the Plaintiff has a very good prima facie case in his favour and against the Defendants, or that there is every likelihood of his succeeding in the said case against the Defendants. The contents of the written statement may be read as part hereof, not being repeated herein for the sake of brevity.
3.That the contents of paragraph No.3 of the application are wrong and denied. It is denied that the balance of convenience lies in favour of the Plaintiff and against the Defendants in the present suit so as to entitle him to the relief of ex-parte/ad-interim injunction. It is submitted that the contents of the written statement may be read as part and parcel of the reply to the application under reply.
4.That the contents of paragraph No.4 of the application are wrong and denied. It is denied that the Plaintiff shall suffer irreparable loss and injury in case the present application is not allowed. It is submitted that the contents of the written statement may be read as part and parcel of the reply to the application under reply.
5.That the contents of paragraph No.5 of the application are wrong and denied. It is denied that the Plaintiff had no option but to file the present application against the Defendants. It is submitted that the contents of the written statement may be read as part and parcel of the reply to the application under reply.
That the contents of the prayer clause of the application are baseless, vague and wrong, and are hence strongly opposed. The Plaintiff has no right to seek attachment before judgment against the answering Defendants in respect of the Suit Property. In any event, the Plaintiff is not entitled to any of the reliefs mentioned in the prayer clause of the present application against the answering Defendants, for the reasons set out in detail hereinabove.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to dismiss the present application under reply, in the interest of justice.
Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, and may pass in favour of the answering defendants, in the interest of justice.
It is prayed accordingly.
DELHIDEFENDANTS NO. 1 TO 3
(THROUGH SPA HOLDER)
THROUGH
DATEDDate of filing
Suit number
ADVOCATES AND LEGAL CONSULTANTS
Advocate's name.
Address of advocates.
IN THE COURT OF Court designation and name of presiding officer
Court address
CS/Defendants' name/2023
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o House Deponent's house number/address, New Delhi-110026, do hereby solemnly affirm and declare as under:
1.That I am the Power of Attorney Holder of Smt. Name of principals (defendants 1 to 3), being Defendants No. 1 to 3 in the above case, and am thoroughly conversant with the facts and circumstances of the case pursuant to the information provided to me, and am competent to swear this affidavit.
2.That the accompanying written statement to the plaint has been drafted by my counsel as per my instructions, and the contents thereof have been duly read over and understood by me, and after fully understanding the contents of the same, I state that the facts stated therein are true and correct.
DEPONENT
VERIFICATION :-
Verified at New Delhi on this Date of verification (day) day of January, 2024 that the contents of the above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF Court designation and name of presiding officer
Court address
CS/Defendants' name/2023
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's house number/address, New Delhi-110026, do hereby solemnly affirm and declare as under:
1.That I am the Power of Attorney Holder of Defendants No. 1 to 3 in the above case and am thoroughly conversant with the facts and circumstances of the case pursuant to the information provided to me, and am competent to swear this affidavit.
2.That the accompanying reply to the application has been drafted by my counsel as per my instructions, and the contents thereof have been duly read over and understood by me, and after fully understanding the contents of the same, I hereby state that the facts stated therein are true and correct to my knowledge.
DEPONENT
VERIFICATION :-
Verified at New Delhi on this Date of verification (day) day of January, 2024 that the contents of the above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF Court designation and name of presiding officer
Court address
CS/Defendants' name/2023
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
APPLICATION FOR AND ON BEHALF OF THE APPLICANTS / DEFENDANTS NO. 1 TO 3 UNDER ORDER 8 RULE 1 OF C.P.C. R/W SECTION 151 OF C.P.C. AND R/W SECTION 5 OF THE LIMITATION ACT, FOR CONDONATION OF DELAY IN FILING OF THE WRITTEN STATEMENT.
MOST RESPECTFULLY SHOWETH :-
1.That the captioned plaint has been filed by the plaintiff against the defendants before this Hon'ble Court, and the same is pending before this Hon'ble Court for Date fixed for next hearing.
2.That pursuant to the filing of the present suit, the applicants / answering defendants were taken aback owing to the untenable claims of the plaintiff vis-à-vis the title of the suit property. In this regard, the answering defendants made inquiries from the erstwhile owners and learnt that, even in the past, legal proceedings had been instituted between Late Sh. Name of deceased person in prior litigation and the erstwhile owner of the suit property, Name of erstwhile owner of suit property. Despite diligent efforts over the last two months, the answering defendants have been able to procure only certain documents, namely, the statement of Late Sh. Name of deceased person in prior litigation, whereby the parties to Suit No. Number of prior compromised suit, titled as Title of prior compromised suit, compromised the suit. The answering defendants have, as of now, been able to procure only 3 pages, and they reserve their right to file the complete set of relevant documents as and when the same is procured. The plaintiff may be put to strict proof of the same, inasmuch as, despite being aware of the prior settlement of the dispute, if any, the plaintiff has unnecessarily and without any legal basis filed the present suit.
3.It is submitted that the copy of the plaint and its documents has not been served upon the applicants / defendants till date. Hence, in the absence of the said documents, it is not possible to prepare the written statement, and the same could not be filed within the time granted by this Hon'ble Court.
4.It is submitted that the copy of the suit, along with the documents, was not supplied to the defendants despite repeated requests; therefore, the applicants / defendants applied for a certified copy of the complete file along with the documents, and the certified copy of the same was duly received. In the absence of the copy of the suit and the complete documents, it was not possible to prepare the written statement within the time granted, due to which the applicants could not file the written statement as per the direction of this Hon'ble Court, which was neither intentional nor deliberate. Hence, the written statement is within limitation from the date of receipt of the certified copy of the present suit, and the same has been filed before this Hon'ble Court, with a copy thereof supplied to the plaintiff.
5.That due to the reasons stated above, the written statement could not be filed by the defendants within time and the delay has been caused. The applicants / defendants are now filing the present application for condonation of the delay in filing the written statement, and it is prayed that the present application may be allowed and the written statement of the defendants may be taken on record.
PRAYER :-
It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow the present application and condone the delay in filing the written statement before this Hon'ble Court, in the interest of justice.
Pass such further order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, and may pass in favour of the answering defendants, in the interest of justice.
It is prayed accordingly.
DELHIDEFENDANTS NO. 1 TO 3
(THROUGH SPA HOLDER)
THROUGH
DATEDDate of filing
Suit number
ADVOCATES AND LEGAL CONSULTANTS
Advocate's name.
Address of advocates.
IN THE COURT OF Court designation and name of presiding officer
Court address
CS/Defendants' name/2023
IN THE MATTER OF :-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' name: DEFENDANTS
AFFIDAVIT
Affidavit of Sh. Deponent's name, aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's house number/address, New Delhi-110026, do hereby solemnly affirm and declare as under:
1.That I am the Power of Attorney Holder of Defendants No. 1 to 3 in the above case and am thoroughly conversant with the facts and circumstances of the case pursuant to the information provided to me, and am competent to swear this affidavit.
2.That I have gone through the contents of the accompanying application under Order 8 Rule 1 r/w Section 151 of C.P.C., which has been drafted by my counsel at my instructions, and the contents of the same are correct and form part of this affidavit as well, the same not being repeated herein for the sake of brevity and to avoid repetition.
DEPONENT
VERIFICATION
Verified at Delhi on this Details day of January, 2023, that the contents of the aforesaid affidavit are true and correct to the best of my knowledge and belief; no part of it is false, and nothing material has been concealed therefrom.
DEPONENT