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2012 (12) TMI 309 - HC - Indian LawsIn the present case Family Settlement had been given effect to a substantial extent and that the respective parties were in effective control of their respective shares in the terms of the said family settlement since 2007. No doubt there were some disputes relating to some aspects appear to have been admittedly there allegations of non-compliance of certain terms of the memoranda of understanding which the learned Single Judge, correctly held required to be decided on affidavit evidence. - there is a prima facie acceptance of the factum of concealment of additional family assets by the defendant no. 1 which constitutes a case of fraud also does not merit grant of an interim order at this stage. Such stance of the plaintiffs was contested by defendant no. 1 & 2 on the score that accrual of personal assets post 2007 would not constitute part of the joint family corpus and such rival contentions required to be adjudicated in the course of trial. Hence mere allowing of amendment of the plaint to include the additional family assets as a part of the subject matter of the suit would not simpliciter ground to come to a conclusion of a strong prima facie case of fraud warranting the interim relief. Interim relief - learned Single Judge has come to a reasonable conclusion not to grant the interim relief to the plaintiffs in the instant case and not to substitute such discretion of the learned Single Judge since the same neither appears to be arbitrary, capricious or perverse in any manner whatsoever. Accordingly Appeal stands dismissed Amendment in the plaint - The trial in the suit had also not commenced and the learned Single Judge was wholly justified to conclude that amendment at such early stage of the proceeding would not prejudice either of the parties and ought to be permitted. Assets and/or legal entities which were sought to be included as subject matter of the suit did not comprise of the joint family corpus inasmuch as they had come into existence after 2007 and that no case of concealment had been made out are essentially matters of defense which his clients would be entitled to agitate fully in the course of trial by filing written statement, if not filed. The nature and circumstances in such amendment was prayed for in our considered view did not amount to alternation of the nature and character of the suit in any manner. If written statement is not filed, the same may be filed within eight weeks from the date of service of amended copy of the plaint - impugned order to the extent it permitted amendment of the plaint does not warrant interference and the appeal being is accordingly dismissed.
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