PRATIBHA RANI, J. (Oral)

CM(M) 208/2015

1. The petitioner is aggrieved by the order dated 19.2.2015 whereby the two applications filed by her, one under Order VI Rule 17 CPC with a prayer to amend the written statement and the second application under Order IX Rule 7 CPC for setting aside the ex parte order and giving her an opportunity for leading defence evidence stand dismissed.

2. In the Civil Suit No.198/2014 filed in the year 2008, the petitioner was sued as defendant seeking a decree for specific performance in respect of the agreement to sell and purchase dated 19.4.2005 as well as decree for possession and injunction.

3. Written statement to the said plaint was filed on 20.11.2008. In paragraph 11 of the said written statement the plea taken by the petitioner/defendant reads as under:

“11. Para 11 of the plaint is wrong and denied. It is submitted that on 19.4.2005 a sum of Rs.2,00,000/- was paid by the plaintiff to the defendant as loan and not as bayana/advance/part consideration as alleged. It is denied that on 2/06/05 further consideration of Rs.1 lac was paid to the defendant as alleged. It is denied that on 20/06/06 the plaintiff served any legal notice to the defendant. It is denied that there is any cause of action. It is denied that on 26/07/08 that the defendant refused to perform her part as there is no question of such action.”

4. Mr. S.P.Kalra, learned Senior Counsel for the petitioner has submitted that the purpose of seeking amendment in the written statement was to give necessary details in respect of loan transaction pleaded in the written statement and also to bring on record the facts and circumstances about the real transaction between the parties. The petitioner despite her due diligence could not raise these pleas at the stage of filing the written statement. The petitioner also wanted to place on record the facts relating to the friendly transaction between the respondent/plaintiff and the petitioner/defendant’s brother-in-law as well as the circumstances under which the loan amount was given and the said document came to be signed by the petitioner/defendant. The petitioner also wanted to raise preliminary objection about the enforceability of the agreement to sell and also plead the financial crisis she faced after the death of her husband.

5. Mr. S.P.Kalra, learned Senior Counsel for the petitioner has submitted that after the death of her husband, the petitioner is not the sole legal heir as she has two children also who were minor at that time. At the time of filing written statement, she was not in fit state of mind. Even her counsel Mr. Khattar was ill and later on expired. The amendment sought are more in the nature of explaining the facts and circumstances already pleaded All these facts are necessary to be brought on record for proper adjudication of the controversy between the parties and had the amendment been allowed by the learned trial Court, no prejudice would have been caused to the respondent/plaintiff.

6. Learned Senior Counsel for the petitioner has relied upon Mahila Ramkali Devi & Ors. vs. Nandram (D) Thr. LRs & Ors. AIR 2015 SC 2270 and submitted that in view of the principles laid down in the above judgment wherein even after lapse of 40 years, the amendment of plaint was allowed by the Apex Court observing that ‘rules of procedure are intended to be a handmaid to the administration of justice’, the impugned order rejecting the prayer of the petitioner to amend the written statement may be set aside and the amendment sought for by the petitioner may be allowed.

7. I have considered the submissions made by learned counsel for the petitioner. By common order dated 19.2.2015, learned trial court dismissed both the applications filed by the petitioner. The application under Order VI Rule 17 CPC has been dismissed by learned trial court noting that the amendment to incorporate the state of mind of the defendant at the stage of filing the written statement is without