IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 716 of 2010 (M/S) Shri Raj Kumar Agarwal S/o Late Shri Suraj Bhan ..……… Petitioner. Versus Shri Rama Kant Agarwal and others ……… Respondents Mr. Piyush Garg, Advocate for the petitioner. Mr. Arvind Vashishtha, Advocate for the respondent No.4. Hon’ble Tarun Agarwala, J. Heard Shri Piyush Garg, the learned counsel for the petitioner and Mr. Arvind Vashishtha, the learned counsel for the respondent No.4. The petitioner is the plaintiff and filed Original Suit No. 379 of 2005 praying for a declaration that the alleged will executed by Savitri Devi be declared null and void and that the plaintiff be declared the owner and share holder of 1/6 of the un- divided property. The defendants appeared and filed their written statement and issues were framed. Subsequently, in the year 2008, an amendment application was filed to bring on record the list of the properties of M/s Surajbhan and Sons which was allowed. Pursuant to the amendment application being allowed, the defendants filed their additional statement and, in that, contended that the business of M/s Surajbhan and Sons that was being carried out in the shop in question was being managed by Smt. Sushma Agarwal. Based on such information, the plaintiff filed an application under Order 6 Rule 17 of the C.P.C. praying that Sushma Agarwal be impleaded as a necessary defendant which fact was not in the knowledge of the plaintiff and that he came to know for the first time when the additional written statement was filed. This application was opposed by the defendants alleging that it would change the nature of the case and that the entire exercise appears to prolong the litigation. The respondents, further 2 contended that the fact Sushma Agarwal was a tenant was in their knowledge from the initial stage, and, therefore, the application was misconceived and was liable to be rejected. The trial court, after considering the material evidence on record, rejected the application on the ground that the petitioner had knowledge and further found the said application was barred by the proviso to Order 6 Rule 17 of the C.P.C. The petitioner, being aggrieved, filed the present writ petition. The fact that one of the properties owned by the petitioner’s father in which Surajbhan and Sons were located had already been brought on record and the fact that when this property was incorporated, it was not brought to the knowledge of the plaintiffs that the property belongs to Sushma Agarwal and, subsequently, when it was brought by means of an additional written statement that necessary application was filed to array Sushma Agarwal as a necessary party. In my opinion, if a party is being impleaded as a necessary party, the other defendants should not object to it, especially, when in the ultimate analysis, the suit is for partition and, consequently, in the opinion of the Court all parties should be represented so that the matter is adjudicated finally. Rules of procedure are handmaids of justice. The Supreme Court, time and again, has held that the provision of Order 6 Rule 17 C.P.C. is directory in nature and that the said provision should be construed liberally. The entire purpose is that the lis between the parties should be adjudicated and no matter should be left un- adjudicated. Consequently, the mere fact that the petition had knowledge of the owership of Sushma Agarwal becomes immaterial, even though, the application for impleadment was filed after the framing of the issues and at the stage when evidence was being led. No doubt, under the proviso to Order 6 Rule 17, an embargo has been placed that no amendment would be allowed after the trial has commenced unless the court comes to the 3 conclusion that inspite of the due diligence, the party could not have raised the matter before the commencement of the trial. In the present case, the Court finds that the application was filed immediately after the filing of the additional written statement and, consequently, the plaintiff had shown due diligence. Since the Supreme Court has time and again held that a liberal approach should be adopted, the court finds that the defendants will not suffer irreparable loss if the amendment application is allowed and such loss, if any, can be compensated in terms of cost. Consequently, the impugned order cannot be sustained and is quashed. The writ petition is allowed. The Court also allows the amendment application under Order 6 Rule 17 of the C.P.C. which shall be incorporated by the petitioner in the plaint within three weeks from today subject to payment of cost of Rs.5,000/- which shall be deposited by the petitioner within the same period. Cost so deposited, shall be shared equally by the defendants. Let copy of this order shall be made available within a week on payment of usual charges. (Tarun Agarwala, J.) Dated 09.07.2010 Shiv