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.