- (1.) The defendant in the suit before the learned Single Judge, in this appeal challenges the order dated 6th October, 2009 dismissing his application for amendment of the written statement. The learned Single Judge found the appellant, by way of amendment seeking to withdraw the admissions in the written statement filed earlier and held the same impermissible.
(2.) The respondent/plaintiff had instituted the suit from which this appeal arises for partition of estate of the parents of the parties, comprising of property No. A-34, Chittranjan Park, New Delhi-110 019 and share holding of a private limited company and for rendition of accounts of the benefits derived by the appellant/defendant qua the said shares of the company and qua the immovable property. The parties are the only children and legal heirs of their parents. The immovable property as well as the shares aforesaid belonged to the parents who are stated to have died intestate.
(3.) The appellant/defendant filed a written statement. Qua the claim of the respondent/plaintiff for partition of immovable property, it was inter alia stated: (i) That there was no cause of action and the suit had been filed to deter the appellant from filing a claim for mesne profits against the respondent/plaintiff for occupying more portion in the suit property than her so called share. (ii) That the suit is barred by Section 23 of the Hindu Succession Act. (iii)That the suit property is not partible. (iv) that after the demise of the parents, the parties mutually agreed to occupy a portion each on the ground floor and the first floor besides the common portion for the common user and enjoyment. (v) There is no denying the fact that the shares were allotted in the name of the father. (vi) The appellant/defendant took a plea of adjusting the dividends of the share against the expenses being incurred exclusively by him qua the immovable property. (vii) The parties have been in occupation of their respective shares as shown red & yellow besides common portion shown green in the annexed site plan. (viii) Pertinent to mention that the parents of the parties never wished to get the property partitioned and always wanted the same to be kept intact even in future and even the defendant has the same wish. (ix) It is the plea of the defendant that the licensee had been inducted on the first floor of the immovable property by both the parties under consensus ad- idem and that the license fee is being equally disbursed to the parties. (x) It is denied that the defendant avoided the issue of partition The defendant repeatedly informed the plaintiff regarding the wish of the parents of not having partition of the property . it is denied . that (the defendant) refused to partition the suit property or the shares it is denied that the defendant has dishonest intention or that wants to grab the suit property much less to the exclusion of the plaintiff.. the claim of the plaintiff for rendition of accounts from 1995 is ostensibly time barred and cannot be enforced. However, the defendant is always ready to render account for the last three preceding years and the same can be adjusted after the equal apportionment of the expenses incurred by the defendant on the maintenance of the property . The defendant has never exclusively received the license fee. A reading of the written statement unequivocally shows that the appellant/defendant admitted the share of the respondent/plaintiff.;