HEMA AGARWAL W/O LATE SRI DEVENDRA KUMAR AGARWAL Vs. RAMESH CHANDRA AGARWAL S/O LATE SRI GANGA RAM AGARWAL

JUDGEMENT

(1.) 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.) 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. It is settled law that all grounds 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 I 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.