Sma Ashish Ghate vs Ashish Anil Ghate
2017 Latest Caselaw 7917 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                         WRIT PETITION NO. 2357 OF 2016

Uma Ashish Ghate                       ]
C/o. Col. D.M. Purandare,              ]
B-20 Amar Aashiyana,                   ]
Wanowrie, Pune- 411 040                ]     ...        Petitioner.

          V/s.

Ashish Anil Ghate                      ]
A-204 Paranjpe Magnolia,               ]
Near Kumar Sahawas,                    ]
Opp. Mont Vert Biarritz,               ]
Baner Pashan Link Road,                ]
Pashan, Pune- 411 021                  ]     ...        Respondent.



      •   Mr.Sanjay Bhojwani for the Petitioner.
      •   Mr.Abhijit D. Sarwate for the Respondent.


                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATED : 9 th OCTOBER, 2017.

JUDGMENT :-

1]               Rule. Rule made returnable forthwith.


2]               Heard learned counsel for both the parties finally at the

stage of admission itself.






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3]              By this Writ Petition, the Petitioner-wife is challenging

the order dated 04/01/2016 passed by the Principal Judge, Family

Court No.1, Pune, in P.A. No.746 of 2011. By the said order, the trial

Court has rejected the Petitioner's application filed under Order 6

Rule 17 of the Civil Procedure Code (C.P.C.) for amendment of the

petition.

4] It is submitted by the learned counsel for the Petitioner

that the Petitioner has filed P.A. No.746 of 2011 seeking dissolution

of marriage with the Respondent. The issue of maintenance for the

child, his continued education expenses, permanent alimony and

maintenance of the Petitioner, all these reliefs, however, remained to

be claimed by the Petitioner in the said petition, as she was not

advised by her previous Advocate-on-record that these reliefs can be

claimed by her in the same petition. Hence now the Petitioner

desires to claim the said reliefs and for that purpose, she wants to

amend the present petition to add paragraph No.14-A and 14-B in the

petition. Accordingly, consequential amendment is also sought in the

prayer clause.

5] It is submitted that the said amendment was sought, only

to avoid multiplicity of proceedings and application for amendment

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was filed without any laxity on the part of the Petitioner. The

moment she came to know after the new Advocate has advised that

such reliefs can be claimed in the proceedings for divorce also, she

has filed the said application.

6] This application was strongly resisted by learned counsel

for the Respondent submitting that it is barred by the Proviso to

Order 6 Rule 17 of C.P.C., which lays down 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 before the

commencement of the trial. In the instant case, it is submitted that,

the recording of evidence has already commenced and the Petitioner

is cross-examined on three occasions. Moreover, she has already

sought these education expenses and alimony of the child and for

herself in the application of interim maintenance. Therefore, she was

very much aware that these reliefs can be claimed in this

proceeding. In such situation and at this stage, without any ground

and reason being made out, merely because of the change of

Advocate, if such application for amendment is allowed, it is as good

as setting the clock back to its original position, because after the

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petition is amended, the Respondent will have to file the written

statement, then the additional issues will have to be framed and

again the cross-examination of the Petitioner would be necessary.

7] As regards the ground of avoiding multiplicity of the

proceedings, it is submitted that at the time of filing the petition for

divorce, no liberty was sought reserving the right to claim reliefs

under Section 26 of Hindu Marriage Act. Hence unless the liberty

was sought and reserved, there cannot be further application also

for maintenance and other reliefs under Section 26 of the Hindu

Marriage Act. According to learned counsel for the Respondent, the

Hon'ble Supreme Court has held that the change of Advocate cannot

be a ground for recall of the witness. The same analogy will apply in

this case also that the change of Advocate cannot be a ground for

seeking amendment in the petition and that too after the recording

of evidence has commenced, in view of bar of the Proviso under

Order 6 Rule 17 of C.P.C..

8] In this respect learned counsel for the Petitioner has

relied upon the judgment of the Andhra Pradesh High Court in the

case of Vallala Yasodha vs. Vallala Naga Venkata Laxmi, (2013) 5

ALD 166, to submit that when the relief claimed by way of

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amendment can be granted in the same proceeding by the same

Court, the amendment can be allowed. It is submitted that in this

judgment, the Andhra Pradesh High Court has held that the Proviso

to Order 6 Rule 17 of C.P.C. does not contain a rigid prohibition. The

initial rigidity was watered down by the Parliament itself by later

part of the Proviso to the effect that "unless the Court comes to the

conclusion that in-spite of due diligence, the party could not have

raised the matter before the commencing of trial", thereby indicating

that the amendment is not directly prohibited but it is entirely in

the discretion of the Court, having regard to the various aspects, one

of them being, to avoid multiplicity of the proceedings.

9] In the instant case, it may be true that the trial has

commenced and the petition is filed way back in the year 2011 for

divorce; whereas the application for amendment of the petition is

filed in the year 2015 on 29.07.2015. Now the cross-examination of

the Petitioner is also part-heard. But in my considered opinion the

fact remains that the reliefs which the Petitioner is claiming in this

application are that of seeking the permanent alimony and

educational expenses of the minor son, which she has not sought, in

the petition and it was only according to her, on account of no such

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advise being given to her by the previous Advocate. Even if she has

not reserved that liberty to file the fresh petition for seeking these

reliefs, the law is clear that she can always seek those reliefs as and

when the necessity arises, as cause of action for the same is

continuing one. Hence it cannot be said that she is totally barred

from filing such petition. Therefore, when the reliefs can be awarded

in this proceedings itself, in order to avoid the multiplicity of the

proceedings, it is always desirable that all the issues and

controversies between the parties should be decided at one and the

same stage and in the same proceedings.

10] As regards the ground that change of Advocate cannot be

a reason to allow such application for amendment, the fact remains

that the parties to the litigation are not legally literate and therefore,

they depend on the advise of their counsel. It is a matter of fact that

till today the Petitions are drafted by the Advocates or the counsels

and not by the litigants. Therefore, if at the time of drafting petition

the Petitioner was not advised to include these reliefs in this petition

for divorce by her previous Advocate and now with change of

Advocate she has realized that these reliefs can be asked in this

petition itself, she should not be denied the necessary amendment,

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as it would be depriving her from raising these issues. After all, the

Proviso to Order 6 Rule 17 of C.P.C. is not of an absolute nature and

so rigid. It needs to be considered depending on facts of each case.

Especially in matrimonial proceedings in order to lessen the number

of litigation interse between the parties, which is already quite high,

the approach of the Court has to be liberal.

11] The impugned order therefore passed by the trial Court

of rejecting Petitioner's application for amendment cannot be called

as just, legal and correct. Keeping in mind the substantive cause of

justice and in order to avoid multiplicity of the proceedings the

application for amendment needs to be allowed, by setting aside the

order of the trial Court.

12] Writ Petition is therefore allowed. The impugned order

passed by the trial Court is set-aside. The Petitioner's Application

(Exh.150) for carrying out necessary amendment is allowed, subject

to condition that the petitioner will file amended petition within a

period of eight days from today.

13] Learned counsel for the Respondent submits that on 1 st

November, 2017 he will be filing the written statement. Statement

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accepted.

14] It is expected that the trial Court will frame the

additional issues within 15 days thereafter and proceed with further

with the matter.

15]             Rule is made absolute in above terms.



                         (DR. SHALINI PHANSALKAR-JOSHI, J.)