DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 1 DR.GOPAL KRISHNA GOYAL & ANR. VS. SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) Dated:- 03 .02.2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. R.R.Nagori ) Mr. R.K.Thanvi )for the petitioners. Mr. Rakesh Arora , for the respondents. 1. This writ petition is directed against order dated 16.5.07 passed by the learned Additional District Judge(F.T.), No.2, Pali in Civil Original Case No.16/07, whereby an application preferred under Order VI Rule 17 of Civil Procedure Code, 1908( in short “CPC” hereinafter) by the plaintiff-respondent, seeking leave to amend the plaint has been allowed and the amended plaint has been taken on record. 2. The respondent-plaintiff filed a suit for the cancellation of sale deed and general power of attorney against the petitioners- defendants. Precisely, the case set out by the plaintiff is that the suit property was jointly owned, possessed and used by the plaintiff and the defendant no.1, however, on the basis of alleged general of power of attorney executed by the plaintiff in favour of defendant no. 1, the entire suit property has been sold by the defendant no. 1 in favour of his mother , the defendant no.2. The plaintiff claims that she has never executed the alleged DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 2 general power of attorney dated 1.4.06 in favour of the defendant no.1. 3. The suit is being contested by the defendants by filing a written statement . The defendants have denied that the house and hospital were purchased through a registered sale deed from Smt. Indira Devi. According to the defendants, only house was purchased jointly by the plaintiff and the defendant no.1, however, the hospital was established in the said house by the defendant no.1 alone by installing valuable machines. It is further averred that in the written statement that after purchasing the house, the necessary changes and developments were made and the Eye hospital was also established in the suit property by the defendant no.1 by spending the money out of his own income and the plaintiff has contributed nothing in the establishment and development of the hospital in the house so purchased. Regarding the power of attorney, it is averred in the written statement that the general of power attorney for half portion in the suit property was executed by the plaintiff herself in favour of the defendant no. 1 and was got attested by the Notary Public on 1.4.06 and that even the factum of sale of the suit property vide sale deed dated 7.8.06 was well within the knowledge of the plaintiff. 4. On the basis of the pleadings of the parties, the issues DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 3 were framed by the learned trial court on 8.3.07 and the matter is presently posted for plaintiff evidence. 5. At this stage, the plaintiff preferred an application under Order VI Rule 17 seeking leave to amend the plaint on the ground that during the course of cleaning of the residential premises which is part of the suit property, she has found certain documents therefore, it has become necessary to amend the plaint so as to incorporate the facts in respect of the documents so found. It was averred that the amendment sought for is necessary for adjudication of lis between the parties . 6. The defendants-petitioners contested the application without filing any reply thereto. 7. After hearing both the parties, the learned trial court arrived at the finding that the amendment sought for is allowed then,it is not going to change the nature of the suit and the same is relevant to the subject matter of the suit. The learned trial court opined that the amendment sought for cannot be said to be belated. Accordingly, by the order impugned, the learned trial court while allowing the application preferred has taken the amendment plaint already filed on record. 8. It is to be noticed that by the order impugned yet another application preferred by the plaintiff under Order VII Rule 14 CPC for taking the documents on record has also been allowed but, DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 4 that part of the order is not impugned in the present writ petition. 9. It is contended by the learned counsel for the petitioners that the order impugned passed by the learned trial court ignoring the proviso to Order VI Rule 17 is not sustainable in eye of law. The learned counsel submitted that after commencement of the trial, the application seeking amendment of the pleadings cannot be allowed by the learned trial court unless the court comes to the conclusion that inspite of the due diligence , the party could not have raised the matter before the commencement of the trial. The learned counsel submitted that there is no averment in the application seeking amendment to establish that even after due diligence, the plaintiff could not have preferred an application seeking amendment before the commencement of the trial. The learned counsel submitted that the suit was filed by the plaintiff on 21.12.06 and all the documents , relied upon by the plaintiff and made basis for the amendment sought for are of the date prior to the date of filing of the suit and same were in her power and possession inasmuch as, even according to the plaintiff , the same were found at her own residential house. Accordingly, it is submitted by the learned counsel that the learned trial court has seriously erred in allowing the application seeking amendment of the plaint. DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 5 10. Per contra, the learned counsel appearing on behalf of the respondent submitted that in compliance of the order impugned, the petitioners have already filed their amended written statement before the learned trial court on 6.7.07 and therefore, at this stage, they cannot be permitted to assail the validity of order impugned. That apart, it is submitted by the learned counsel that the matter was at the stage of the plaintiff evidence and the learned trial court has categorically found that the amendment sought for is relevant for adjudication of the controversy involved therefore, simply because the learned trial court has not recorded the specific finding in terms of the proviso to Order VI Rule 17, the order impugned cannot be interfered with by this court in exercise of its supervisory jurisdiction. 11. I have considered the rival submissions and perused the record. 12. It is true that as per the new proviso added to Order VI Rule 17 by the Civil Procedure Code(Amendment)Act, 2002 , no application for amendment of the pleadings shall be allowed after the trial has commenced unless the court comes to the conclusion that inspite of due diligence , the party applying for amendment could not have raised the matter before the commencement of the trial. Obviously, the said provision has been incorporated so as to shorten the litigation and expedite DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 6 the disposal of the cases. But then, it is settled law that the rules of procedure are hand maiden of justice and have to be construed so as to subserve the cause of substantial justice. The jurisdiction vested in the court to permit or not to permit the amendment of the pleadings has to be exercised judicially taking into account the facts and circumstances of each case. The application seeking amendment cannot be rejected solely on the ground of delay without considering the relevancy of the amendment sought for, for complete and effectual adjudication of the lis between the parties. 13. Having gone through the application seeking leave to amend the plaint , in the considered opinion of this court, the amendment sought for appears to be relevant and necessary for the complete and effectual adjudication of the controversy involved in the suit. It is true that the plaintiffs have not been able to establish in strict sense that she could not have raised the matter sought to be raised by way of amendment of the plaint before the commencement of the trial even after due diligence .However, the fact remains that the explanation with regard to amendment sought for ,set out by the plaintiff in the application preferred has not been controverted by the defendant by filing any counter thereto. That apart, admittedly, in compliance of the order impugned, the defendants have DR.GOPAL KRISHNA GOYAL & ANR. VS.SMT.SARITA GOYAL &ANR. (S.B.CIVIL WRIT PETITION NO.5475/07) 7 already filed their amended written statement before the learned trial court. 14. Thus, in the considered opinion of this court, the learned trial court after due consideration of the facts and circumstances of the case having exercised its judicial discretion, so as to subserve the cause of substantial justice, there is no reason as to why the impugned order should be interfered with by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 15. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J.