JUDGMENT AND ORDER : 1. Heard Sri S.K. Tyagi, Advocate, for appellant and Sri Akhilesh Kumar Pandey, Advocate, for respondent. 2. This appeal under Section 19 of Family Courts Act, 1984 (hereinafter referred to as "Act, 1984") has arisen from order dated 05.01.2018 passed by Additional Principal Judge, Family Court, Meerut rejecting appellant's Amendment Application filed under Order 6 Rule 17 C.P.C. Court below has found that application was moved at the stage when virtually evidence was already recorded and there was no explanation, as contemplated under proviso to Order-6, Rule 17 C.P.C. as to why amendment has been sought at such a belated stage. 3. When questioned, learned counsel for appellant could not add any fact other than what is mentioned in Amendment Application that these facts were left by mistake. This is no explanation whatsoever to maintain Amendment Application at such a late stage though required in view of proviso of Order 6 Rules 17 C.P.C. 4. Law in this regard is now well settled. Earlier amendment in pleadings were very liberally allowed by Courts unless it was found that amendment would change the nature of proceedings or would otherwise cause a grave injustice to other party. 5. Time and again, Apex court has given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases and in that view of the matter, first intervention came by virtue of Amendment Act, 1999 whereby in Order 6, Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but a restriction in the shape of a proviso was added therein. Order 6 Rule 17, came to be inserted by Amendment Act, 2002, reads as under: "17.
However, this complete omission did not found favour with the litigating people and realizing great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but a restriction in the shape of a proviso was added therein. Order 6 Rule 17, came to be inserted by Amendment Act, 2002, 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. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power simultaneously by observing that no application for amendment shall be allowed after the Trial has commenced unless the Court comes to the conclusion that inspite due diligence, party could not have raised the matter before the commencement of Trial. Now there is an embargo on an application for amendment to be allowed once the Trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of Trial. Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence.
Therefore the party seeking amendment, after commencement of Trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of Trial despite its due diligence. After the Trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C. 7. In Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. (2007) AIR SC 806 Court has held that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment once the Trial has commenced unless despite due diligence, matter could not be raised before the commencement of Trial. The Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once the Trial has commenced unless the requirement of proviso itself is satisfied. In taking this view, the Apex Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India, (2005) AIR SC 3353. 8. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S.K. Sarwagi and Co. Pvt. Ltd. (2008) AIR SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 . This Court has also followed the above exposition of law by referring to Revajeetu Builders and Developers in Sri Krishan Mittal Vs. Upper District Judge Bijnor and Others, Writ Appeal No. 46709 of 2012 decided on 13. 9. 2012. 9. In the present case, from a bare perusal of application seeking amendment moved by appellant, it cannot be said that she has given any explanation as to why amendment sought could not have been done earlier despite due diligence on her part. It, therefore, cannot be said that there is compliance of proviso of Order 6 Rules 17 C.P.C. We, therefore, find no error in the order passed by Court below rejecting Amendment Application. 10. Appeal lacks merits. Dismissed at the stage of hearing under Order 41 Rule 11 C.P.C.