Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2140 (RAJ)

Rajesh Kumar v. District Judge, Bhilwara

2008-09-11

SANGEET LODHA

body2008
JUDGMENT 1. - This writ petition is directed against order dated 12.3.2008 passed by the learned District Judge, Bhilwara in Civil Suit No. 30/2002, whereby the application preferred by the petitioner under Order 6, Rule 17 read with Section 151 C.P.C., has been rejected. 2. In nutshell, the relevant facts are that the respondent No. 2 preferred an application against the petitioner herein under Section 13 of Hindu Marriage Act, seeking dissolution of the marriage on the ground of desertion and cruelty. A reply to the application was filed on behalf of the petitioner. Later, the petitioner preferred an application seeking amendment of the reply, which has been rejected by the learned trial Court by order impugned in the writ petition. 3. It is submitted by the learned counsel that the learned trial Court has seriously erred in rejecting the application seeking amendment filed by the petitioner. The learned counsel submitted that by way of amendment, the petitioner wanted to insert only an additional para in his reply to the application setting out the relevant facts to show that the respondent father has instigated her to file the divorce petition. The learned counsel submitted that the statements of the respondent's father Shri Mewa Ram were recorded on 21.9.2004 as AW-2 and in the said statement, in cross-examination, a question was put to him as to whether he does not want to sent back the respondent No. 2 back to her in-laws on account of gas agency having been granted in her favour. The learned counsel submitted that at this stage, it came to the knowledge of the petitioner that such a defence has not been taken in the reply filed by the petitioner and therefore, amendment of the reply as aforesaid was sought for. The learned counsel submitted that the rejection of the application by the learned trial Court has resulted in gross injustice inasmuch as, despite having cross examined the concerned witness simply for want of pleadings, the petitioner shall be precluded from raising a valuable defence available to him. The learned counsel submitted that if the amendment prayed for is allowed, no prejudice shall be caused to the respondent No. 2 and for the delay caused, she can be compensated by way of costs. 4. The learned counsel submitted that if the amendment prayed for is allowed, no prejudice shall be caused to the respondent No. 2 and for the delay caused, she can be compensated by way of costs. 4. It is to be noticed that in the divorce petition pending before the learned trial Court, the evidence of the applicant, respondent No. 2 herein has already been closed on 16.10.2004. It is apparent on the face of record that facts which the petitioner intended to set out in reply by way of amendment were well within his knowledge at the relevant time when the reply was filed and accordingly, the questions were asked to the witnesses Shri Mewaram in his cross-examination on 2.9.2004. The learned trial Court has observed that before making an application under Order 6, Rule 17 C.P.C., earlier the applications were preferred by the petitioner under Order 8, which rejected by the Court on 11.10.2006 and 10.8.2007 and thereafter, the application for amendment has been moved for introducing the self facts in the reply. Considering the amendment sought on merits, the learned trial Court has observed that so as to decide the actual dispute between the parties, it is not even necessary to allow the petitioner to bring the facts sought to be introduced in the pleading by way of amendment, on record. 5. Admittedly, the facts which petitioner intended to insert in the reply by way of amendment were within his knowledge at the time of filling the reply. There is no satisfactory explanation on record for not introducing those pleadings at the initial stage when the reply was filed. Moreover, in view of the proviso incorporated in Order 6, Rule 17 by way of C.P.C. (Amendment), Act, 2002, no application for amendment of the pleadings can be allowed after the trial is commenced, unless, the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. Obviously, the aforesaid provision has been introduced so as to curb the frivolous application which is filed by the parties delay the proceedings. In the instant case, the evidence of respondent No. 2 herein, who is applicant in the divorce petition has already been completed way back on 16.10.2004. Obviously, the aforesaid provision has been introduced so as to curb the frivolous application which is filed by the parties delay the proceedings. In the instant case, the evidence of respondent No. 2 herein, who is applicant in the divorce petition has already been completed way back on 16.10.2004. Thus, at this belated stage, the petitioner has rightly been declined the prayer for setting out new facts in the reply which were well within his knowledge at the initial stage when the reply was filed. 6. For the aforesaid reasons, this Court is of the considered opinion that the learned trial Court has committed no jurisdictional error in rejecting the application preferred by the petitioner for the amendment of the reply. No ground for interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India is made out. 7. In the result, the writ petition fails, it is hereby dismissed.Petition dismissed. *******