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2010 DIGILAW 462 (UTT)

GAURAV KHURANA v. RADHIKA

2010-07-13

TARUN AGARWALA

body2010
JUDGMENT : Tarun Agarwala, J. Heard Mr. Pawan Mishra, the learned Counsel for the Petitioner and Mr. Karan Anand, the learned Counsel for the Respondents. 2. The opposite party filed a suit for divorce u/s 13 of the Hindu Marriage Act, 1955 on the ground of cruelty. It is alleged that evidence has been led and the matter had become ripe for hearing. During the pendency of the proceedings, the Petitioner filed an application under Order 6 Rule 17 of the CPC for amendment of his written statement. This application was rejected by the Court below by an order dated 6.4.2010, against which, the present writ petition has been filed. 3. The learned Counsel for the Petitioner submitted that the amendment sought was only clarificatory in nature which requires no further evidence and, that in the matter of divorce proceedings, the Petitioner may be permitted to plead all such questions which arises for adjudication. On the other hand, the learned Counsel for the opposite party has vehemently opposed the application contending that the entire purpose is to frustrate the divorce proceedings and prolong the litigation. 4. Time and again, the Supreme Court has held in a catena of judgments that the provision of CPC are handmaid of justice and that the provision should not be construed strictly and that a liberal approach should be adopted. The Supreme Court has held that the provision of Order 6 Rule 17 is directory in nature and is not mandatory. Consequently, even though, after the amendment, the proviso contemplates that no amendment should be allowed after the trial has commenced, nonetheless, the said provision, being directory in nature, and a liberal approach should be adopted. The Court in each and every circumstance has to consider the application for amendment on merits and should not reject it mechanically on the ground that the trial has commenced. 5. In the present case, the Petitioner/Defendant has sought to amend the written statement by addition of certain paragraphs which the learned Counsel contends is in the form of clarification in order to elucidate the matter, in question, before the Court below. Considering the aforesaid, this Court is of the opinion that a liberal approach should be adopted so that the matters are adjudicated and nothing is left out. Considering the aforesaid, this Court is of the opinion that a liberal approach should be adopted so that the matters are adjudicated and nothing is left out. Consequently, taking a liberal approach, this Court is of the opinion that the Trial Court committed an error in rejecting the amendment application, especially, when the opposite party can be compensated in terms of cost. 6. Consequently, the impugned order is quashed and the writ petition is allowed. The amendment application is also allowed subject to the payment of cost of Rs. 5,000 which the Petitioner shall deposit before the Court below in the name of the Plaintiff/opposite party by means of a cross demand draft within three weeks from today. The amount so deposited can be withdrawn by the Plaintiff/opposite party No. 1 without furnishing any security. The Court further directs that after the amendment is incorporated in the written statement, the Plaintiff-opposite party will be allowed sufficient time by the Trial Court to file reply/rejoinder affidavit and, if evidence has not been led, the Plaintiff-opposite party is permitted to lead additional evidence, if so required. It is made clear, if evidence has been led, the Petitioner will not be permitted to lead any additional evidence on the amendment so allowed.