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IN THE HIGH COURT OF JUDICATURE AT
BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2236 OF 2016
Mohan Narayan Hande,
Aged about 56 years,
Occ. Nil.,
R/o. D-3, Rashtrarpan Nagar,
Dighi Road, Bhosari,
Pune 411 039
Presently r/o. Goregaon Bk.
Post. Goregaon Khurd,
Tq. and Dist. Akola ...APPELLANT
// VERSUS //
Smt. Sarojini w/o. Mohan Hande,
Aged 41 yrs.
Occ. Housewife,
R/o. c/o.Uttamrao Sadashiv
Shegokar,
Near Amdapur Naka Khamgaon,
Tq. Khamgaon,
Dist. Buldhana ..RESPONDENT
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Mr.Abhay Bhide, Advocate for Appellant
Mr. Amit Bhate, Advocate for Respondent
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CORAM: KUM. INDIRA JAIN, J.
DATE : JUNE 30,2017.
ORAL JUDGMENT:
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties.
2. The challenge in petition is to the order dated 13.1.2016 passed by the learned Civil Judge Senior Division, Khamgaon, Dist. Buldhana below Exh. 94 in H.M.P. No. 2/2007, thereby rejecting an application for amendment moved by the husband under Order VI Rule 17 Code of Civil Procedure.
3. The facts giving rise to the petition may be stated in nutshell as under:
Respondent / wife filed an application for judicial separation against the petitioner. Petitioner appeared before the Trial Court and filed his written ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:33 ::: 3 jwp2236of16.odt statement. He admitted the relationship as of husband and wife.
On 4.7.2015, P.W. 2 father of respondent was cross examined. During cross examination, it was revealed that his daughter's first marriage was dissolved by divorce. The witness initially stated that dissolution of first marriage was by decree of divorce passed by the Court. Then he stated that divorce deed was registered in the office of Sub- Registrar and decree was not passed by the Court. In view of these admissions, elicited in the cross examination of P.W. 2, petitioner filed an application for amendment in the written statement. The said application was rejected by the Trial Court on two grounds:
(i) The proposed amendment changes the nature of defence raised by the husband in the written statement and
(ii) Since the trial has commenced provisions of Order VI Rule 17 would not apply. ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:33 :::
4 jwp2236of16.odt It is this order of rejection which is the subject matter of present petition.
4. Heard Shri Bhide learned counsel for petitioner and Shri Bhate, learned counsel for respondent. With the assistance of the learned counsel for parties, this Court has gone through the impugned order. It is not in dispute that proceedings under Section 10 of the Hindu Marriage Act came to be filed by wife for judicial separation. Till 4.7.2015, petitioner / husband was not aware of the first marriage of wife / respondent. In view of the facts admitted by the father in cross examination, petitioner filed an application for amendment. The proposed amendment relates to subsequent development and based on the facts elicited in cross examination of P.W.2. In such an eventuality, no question of change in the nature of defence would arise, as petitioner was not aware of the fact of first marriage of the respondent.
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5. So far as discretion under Order VI Rule 17 of the Code of Civil Procedure is concerned, needless to state that it has to be sparingly exercised. Admittedly, trial has commenced and petition is for evidence before the Trial Court. The whole purpose of amendment is to decide the controversy between the parties effectively. The subsequent development in the case on hand had taken place only at the stage of cross examination of P.W.2.
6. In the above situation, this Court finds that provisions under Order VI Rule 17 of the Code would not create any bar and proposed amendment being essential to decide the dispute between the parties can be allowed. Hence, the following order:
(i) Writ petition No. 2236 of 2016 is allowed in terms of prayer clauses 1 & 2. ::: Uploaded on - 10/07/2017 ::: Downloaded on - 28/08/2017 08:32:33 :::
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(ii) Petitioner shall carry out the amendment
within two weeks.
(iii) Parties to appear before the Trial Court
on 12.7.2017.
(iv) Trial Court to proceed in accordance with
the law.
(v) Rule is made absolute, in above terms.
(vi) No Costs.
(KUM.INDIRA JAIN, J.)
belkhede, PA
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