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2010 DIGILAW 652 (UTT)

HEMA AGARWAL v. RAMESH CHANDRA AGARWAL

2010-09-07

TARUN AGARWALA

body2010
JUDGMENT Hon’ble Tarun Agarwala, J. : Heard Shri Narayan Singh Negi, the learned counsel for the revisionist/defendant and Shri Piyush Garg, the learned counsel for the caveator/plaintiff. 2. With the consent of the learned counsel for the parties, the revision is being decided at the admission stage finally since no disputed questions of fact are involved. The plaintiff filed a suit for injunction against the opposite party restraining her from interfering in the peaceful possession and enjoyment of the plaintiff on the property in question. The defendant resisted the suit and filed his written statement. It has also come on record that the affidavit of the plaintiff in chief has already been filed and the opportunity to cross examine the plaintiff has been closed. At this stage, the defendant filed an application under Order 6 Rule 17 of the C.P.C. for amendment of her written statement contending that the property in question was purchased from the funds of her husband and that the suit was barred by the provision of Benami Transaction Act. This application was resisted by the plaintiff alleging that the property was purchased by her own funds and that the suit was not barred by this Act. 3. Without commenting on the controversy, the trial court has rejected the application under the proviso to Order 6 Rule 17 of the C.P.C. contending that due diligence was not observed by the defendant and that this fact was in the knowledge, the same should have been placed on the written statement at the initial stage itself. The trial court, accordingly, rejected the amendment application of the defendant. The defendant, being aggrieved by the said order, has filed the present revision under Section 115 of the C.P.C. 4. Having heard the learned counsel for the parties, this Court finds that the plaintiff is the father-in-law and the defendant is the daughter-in-law. The son of the plaintiff who was the husband of the defendant had died and the tussle is with regard to the possession of the property in question. Allegations and counter allegations have been leveled by the parties in the suit which the Court is not addressing but if a new ground is taken, namely, that the suit is barred by the provision of Benami Transaction Act, the same ought to have been incorporated in the written statement. Allegations and counter allegations have been leveled by the parties in the suit which the Court is not addressing but if a new ground is taken, namely, that the suit is barred by the provision of Benami Transaction Act, the same ought to have been incorporated in the written statement. It is settled law that all ground should be allowed to be pleaded by the defendant in their defence and the application for amendment should not be rejected on a technicality. No doubt, due diligence has not been observed nor explained by the defendant but sometime the court should not be bound by the principles of technicality and should do substantial justice between the parties. The amendment sought will not prejudice the plaintiff nor the stand of the defendant is being changed. The provisions of the C.P.C. is handmaid of justice and as observed by the Supreme Court in Kailash Vs. Nanku and others, 2005 (4) SCC 480 and Salim Adv. Bar Association, Tamil Nadu Vs. Union of India, AIR 2005 SC 3353, the amendment as far as possible should be allowed in the interest of justice, especially, when the other side could be compensated in terms of cost. 5. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The revision is allowed. The amendment sought by the defendant is allowed which shall be incorporated in the written statement within three weeks from today on payment of cost of Rs. 2,000/- which shall be deposited by the defendant before the trial court within the same period of three weeks. The amount so deposited can be withdrawn by the plaintiff without furnishing any security. This court further directs the parties to approach the mediation centre of the District Court for amicable settlement between the parties.