• Inclusion of new properties in lower civil court through an IA

Sir 

Our case is a suit partition case,  filed in 2004, going on in the civil court, we are the plaintiff. the present stage is 
                           Evidence of witnesses is over. Cross chief examination of defendants is nearing to an end. 
Now,  we had filled for an IA ( interim application)U/0 6 R 17 R /W sec. 151 CPC in the lower court seeking admission of new properties,which were not included during the filing of the partition case  in 2004. 
In the lower court,  judge rejected our IA,  by giving the following reasons :
1.IN 2004,When the case was filed,  why these properties were not included in the original pleadings. 
2.the details of the Properties sold by the defendants were not provided as in,  from whom to whom it was sold. 
3.no prompt attempt was made by plaintiff and kept quiet for a period of 11 years 

The TRUTH is that,  we,  the plaintiffs were not aware of the properties at the time of filing of the case. ( these properties were made from the money of the main firm,  SCHEDULE A, property later on. And it was not in our light at the time of filling of the case in 2004 ) 

After the rejection of IA in the lower court,  we filed for a writ petition,  in the high court. 

It was rejected in the high court also,, saying that why the reason was not clearly mentioned,  as to why these new properties were not added in the original pleadings,  while filing the case in 2004. 

My question now is,  

1.If we approach the Supreme Court,  will our IA ( INTERIM application) be allowed,  will we get the permission to include these new properties, which are in the name of defendants ?  
2.And will we be allowed to include,  the properties which were sold by the defendants to other parties??
Asked 9 months ago in Property Law from Kkkk, Karnataka
Religion: Muslim
1. It is very difficult to say about the outcome of the SLP. SLPs are very rarely allowed. Moreover after start of evidence the amendment of pleading is hardly allowed. In your case the evidence was almost over.
2.  The legal principle is all the joint-properties must be included in the hotchpot so an effective partition can happen. So if you can establish that information of these properties were not know to you before the SLP may be allowed.
Devajyoti Barman
Advocate, Kolkata
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1) you won't get permission to add these new properties in your plaint 

2) it would be waste of time and money 

Ajay Sethi
Advocate, Mumbai
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It your appeal is rejected by single judge of thgh Court you can file special appeal before double bench of same High court Therefore you can file SLP before the supreme court.
Shivendra Pratap Singh
Advocate, Lucknow
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1. Unless the pleadings are perused threadbare it is not possible to formulate an opinion on the prospects before the SC, but the inclusion of new properties in the schedule at this belated stage is to be allowed in a restrictive manner and with a deal of circumspection. Nobody can tell what will be the outcome of your challenge before the SC.

2. You are free though to file a separate suit for partition of these properties. 
Ashish Davessar
Advocate, Jaipur
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Actually you should have preferred a revision against the dismissal of the said IA and should not have filed a writ before high court.
In the revision you could have explained the situation more better than to that of the writ petition. 
There is no such thing that you cannot include newly discovered properties in the same partition suit if the same had come to your knowledge as recently as now.  
You could have justified the delay in bringing this property to the present suit.
however now you have two options, i.e., either appeal before supreme court against the dismissal of writ petition by high court 
or
 you may file a fresh partition suit for this property alone.  
The chances to get a favorable rely by supreme court is very less because on such issues the higher courts generally confirm the lower court decision. So think properly before you leap.
T Kalaiselvan
Advocate, Vellore
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128 Consultations
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