A.K. Shrivastava, J.

1. By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the validity of impugned order dated 18-11-2010 (Annexure-P/11) passed by learned trial Court, whereby, application filed by defendant/petitioner under Order VI, Rule 17, Civil Procedure Code and another application under Order VIII, Rule 1, Civil Procedure Code have been rejected.

2. A suit for declaration of the share and the partition has been filed by plaintiffs, who are respondents in this petition. The petitioner who is brother of plaintiff/respondent No. 1 filed written statement and inter alia pleaded in para 8 that real intention of plaintiffs is to harass and torture the defendant mentally.

3. The contention of Shri Dhagat learned counsel for petitioner is that application to amend the written statement (Annexure-P/3) was submitted at the stage when the evidence of plaintiffs was not recorded. Learned counsel further submits that by the proposed amendment, the petitioner is explaining the pleading which he had already pleaded in para 8 of written statement and therefore said application ought to have been allowed by the Trial Court. Learned counsel further submits that in order to support the proposed amendment another application under Order VIII, Rule 1, Civil Procedure Code was filed by filing copy of FIR, agreement and affidavit. Learned counsel further submits that this application has also been mechanically dismissed.

4. On the other hand Shri M. P. Singh, learned counsel for respondents argued in support of impugned order and submitted that pleadings which now petitioner/defendant wants to bring on record were already in his knowledge and therefore learned trial Court has rightly rejected the application. Learned counsel further submits that these pleadings are redundant and having no relevance on the issue.

5. Having heard learned counsel for parties, this petition deserves to be allowed.

6. On bare perusal of plaint and written statement, it is gathered that plaintiff and defendant/petitioner are real brothers. A suit for partition and possession has been filed by the plaintiffs. The defendant by filing written statement has refuted the averments made in the plaint and on going through para 8 of the written statement, it is gathered that in order to torture and harass petitioner mentally the present suit has been filed. On bare perusal of the averments made in the proposed amendment this Court finds that how and in what manner petitioner/defendant is being tortured and harassed, the details and explanation in that regard have been averred in the application. Thus, I am of the view that basic foundation of the proposed amendment already exists in the written statement in para 8 and therefore if petitioner has submitted an application explaining the details of the pleadings made in the written statement, it should not have been dismissed. The procedural law is always meant to provide justice to the parties. The Supreme Court in Shail (Smt.) vs. Manoj Kumar and others, 2004 (3) MPLJ (SC) 336: (2004) 4 SCC 785 while highlighting the powers conferred to this Court under Article 227 of the Constitution of India, has held that the High Court does have powers to make such directions as the facts and circumstances of case may warrant, may be, by way of guiding inferior Court or Tribunal or as to the manner in which it would proceed. The Apex Court further held that the High Court has jurisdiction to pass itself such a decision or direction as the inferior Court or Tribunal should have made although this power should be exercised sparingly. In another decision State of A. P. vs. P. V. Hanumantha Rao and another, (2003) 10 SCC 121 the Supreme Court has held that these powers can be exercised by the High Court if the legal provision involved has been misinterpreted or misapplied resulting in error apparent on the face of the proceedings.

7. The principles governing the question of allowing or disall