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2014 DIGILAW 765 (KAR)

E. Raghunathan v. R. Sarala

2014-09-01

A.N.VENUGOPALA GOWDA

body2014
Judgment : 1. Challenge in this writ petition is to an order dated 20.06.2014 passed in M.C. Mo. 2074/2009 by the V Additional Principal Judge, Family Court, Bangalore. By the said order, I.A.No.10, filed by the petitioner, under Order 6 Rule 17 r/w S.151 CPC was dismissed. 2. Marriage of the petitioner with the respondent was solemnized on 03.05.1995. The parties are estranged couple. M.C.No.543/1999 filed by the petitioner to pass decree of divorce, on the ground of cruelty, was dismissed on 22.08.2002. MFA.No.6670/2002 filed there against was rejected on 26.10.2006. 3. Respondent filed M.C.No.2074/2009, under S.9 of the Hindu Marriage Act, 1955 (for short 'the Act'), seeking relief of restitution of conjugal rights. Petitioner filed on 08.02.2011, statement of objections along with counter claim, under S.23-A of the Act, seeking decree of dissolution of marriage. Trial of the case being complete and when the case was at the stage of hearing of arguments, I.A.No.10 was filed, seeking permission to amend the statement of objections/counter claim. Said application having been dismissed as devoid of merit, this writ petition was filed. 4. Learned advocate contended that the amendment sought to be incorporated is necessary for adjudicating the lis between the parties comprehensively and merely because trial was complete, the Court below is unjustified in dismissing I.A.No.10. He submitted that the petitioner was handicapped due to chronic illness and due to the same he had bad memory, which prevented him from disclosing all the facts to his advocate, at the time of filing statement of objections-cum-counter claim and the Court below, on account of hyper technical approach, has passed order of dismissal. He submitted that the impugned order being irrational, interference is called for. 5. In order to consider whether the petitioner has made out a case for amendment of his statement of objections/counter claim, it is necessary to notice Order 6 Rule 17 CPC, which reads as under: "17. He submitted that the impugned order being irrational, interference is called for. 5. In order to consider whether the petitioner has made out a case for amendment of his statement of objections/counter claim, it is necessary to notice Order 6 Rule 17 CPC, which reads as under: "17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 6. The provision was amended by Act 22 of 2002, with effect from 01.07.2002. The proviso makes it clear that after commencement of trial, no application for amendment shall be allowed, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The pleadings can be permitted to be amended on such terms, as may be just, in order 10 determine the real question in controversy between the parties, by keeping in view the fact that the opposite party is not prejudiced, on account of belated application filed i.e., particularly in cases where trial has commenced. In a case where there is commencement of recording of evidence and an application is filed by one of the parties, seeking permission to amend the pleading, it is incumbent on the part of the Court to satisfy the condition prescribed in the proviso. 7. In the instant case, M.C.No.543/1999 filed by the petitioner was dismissed on 22.08.2002. MPA.No.6670/2002 filed questioning the said decree was rejected on 26.10.2006. Thereafter, on 31.07.2009, respondent filed M.C.No.2074/2009. To the said case, on 08.02.2011, statement of objections with counter claim was filed. Respondent had filed Crl.Mis.No.539/2003 and the same having been allowed on 20.01.2007, the petitioner filed RPFC No.135/2007, which was dismissed on 16.04.2008. Seeking enforcement of the said order, Crl.Mis.Nos.365/2007 and 366/2008 were filed. 8. Recording of evidence in M.C.No.2074/2009, having been completed, the case was posted for hearing of arguments to 01.04.2013. Respondent had filed Crl.Mis.No.539/2003 and the same having been allowed on 20.01.2007, the petitioner filed RPFC No.135/2007, which was dismissed on 16.04.2008. Seeking enforcement of the said order, Crl.Mis.Nos.365/2007 and 366/2008 were filed. 8. Recording of evidence in M.C.No.2074/2009, having been completed, the case was posted for hearing of arguments to 01.04.2013. Arguments on behalf of the petitioner in M.C.No.2074/2009 having been heard and the case having been adjourned for hearing of the arguments of the opposite party, no arguments having been advanced, the case was posted for pronouncement of judgment to 06.07.2013. Advancement and reopening of the case having been sought by the petitioner, the applications filed were allowed and the case was reopened. At that stage, I.A.No.10 was filed, seeking permission to incorporate the proposed amendment. 9. Only subsequent event, sought to be incorporated in the counter claim, as pointed out by the learned advocate for the petitioner is that the respondent along with her brothers came to the petitioner's house on 08.05.2010 and threatened the petitioner to give more money or else she will keep filing more and more cases and on several other dates, the petitioner was put to humiliation, cruelty and harassment. 10. The alleged subsequent event, proposed to be incorporated, was well within the knowledge of the petitioner, even before commencement of trial in M.C.No.2074/2009, I.A.No.10 was filed after closure of trial and when the case had been posted for pronouncement-of judgment. It is clear that there is lack of diligence on the part of the petitioner. 11. Keeping in view the fact that the parties are litigating from 02.06.1999, there is clear lack of due diligence on the part of the petitioner. I.A.No.10 appears to have been filed for other reasons. Since the proviso under Rule 17 of Order 6 is attracted and the petitioner having failed to satisfy the Court that in spite of due diligence, he could not have raised the proposed matter before commencement of trial, the Family Court has rightly considered and concluded that I.A.No.10 is devoid of merit. 12. In Vidyabai and others Vs. Padmalatha and another, (2009) 2 SCC 409 , Apex Court, upon taking into consideration the effect of the insertion of proviso to Order 6 Rule 17 of CPC, has held as under: "10. 12. In Vidyabai and others Vs. Padmalatha and another, (2009) 2 SCC 409 , Apex Court, upon taking into consideration the effect of the insertion of proviso to Order 6 Rule 17 of CPC, has held as under: "10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under: "Provided that no application for amendment, shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing the court will have no jurisdiction at all to allow the amendment of the plaint." 13. The object of amendment by Act 2.2 of 2002, with effect from 01.07.2002, is to stall filing of applications for amending of pleading, subsequent to the commencement of trial, to avoid surprises and when the party had sufficient knowledge of other party's case and also to check delay in disposal of the case. I.A.No.10 having been filed by the petitioner at a highly belated stage of the case and there being clear lack of due diligence, the Court below is justified in dismissing the same. Resultantly, the impugned order being neither irrational nor illegal, no interference is called for. The petition is devoid of merit and hence rejected.