Ms. Manisha Nitin Urankar Alias ... vs Mr.Nitin Deodatta Urunkar
2017 Latest Caselaw 7921 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                          WRIT PETITION NO. 5037 OF 2017


Ms.Manisha Nitin Urankar @                          ]
Kavita Devdatta Rukadikar an adult                  ]
Indian Inhabitant, presently residing               ]
near K.C.C. Office, E.P. School Compound            ]
Nagala Park, Kolhapur 416 004                       ]       Petitioner.

                V/s.
Mr.Nitin Deodatta Urunkar, an adult Indian          ]
Inhabitant, presently residing at "Ashirwad"        ]
204 K Patankar Colony, Near Doshi Nursing           ]
Home, Opp. Tourist Hotel, Kolhapur                  ]       Respondent.



      •   Mr.Sandesh Shukla a/w. Santosh Sawant for the Petitioner.
      •   Mr.Chetan G. Patil for the Respondent.


                         CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATED : 9 th OCTOBER, 2017.

ORAL JUDGMENT :-

1]              Rule. Rule made returnable forthwith.


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

stage of admission itself.


3]              This petition is directed against the order dated






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15/02/2017 passed by the Principal Judge, Family Court, Kolhapur

in P.A. No.110 of 2015 thereby rejecting the Petitioner's application

for amendment in written statement, filed under Order 6 Rule 17 of

Civil Procedure Code (C.P.C.).

4] This petition for divorce is filed by the Respondent-

husband against the Petitioner on the ground of cruelty, desertion

and non consummation of marriage. As per the case of the

Petitioner-wife after the filing of the said petition her husband

repeatedly gave her assurance that the petition was filed only at the

behest of his elder sister and he will ensure that divorce will not be

granted. Accordingly, initially he did not pursue the petition.

Therefore, it was dismissed for default. Thereafter, he even did not

file Restoration Application in time. Then though he filed Application

for Restoration, he again assured her that it was done at the instance

of his sister. It is the contention of the Petitioner that all along she

was given the hope by the Respondent and his parents that she will

be accepted again in the house of the Respondent. Meetings were

also held to that effect but ultimately it was of no use.

5] When the hearing of the petition commenced, she

realised that the Respondent was misguiding her. At the time of his

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cross-examination she noticed that husband was making certain

false statements and therefore she wanted to cross-examine him on

that aspect. Her cross-examination was however restrained on

certain aspects on the ground that there was no pleading to that

effect in the written statement. Hence she was constrained to file the

application for amendment in the written statement to bring on

record the fact that the marriage was actually consumed and

therefore, the ground of non consummation of marriage is not true

and correct.

6] This application was resisted by the Respondent

contending inter-alia that application was filed at a very belated

stage i.e. after the trial has commenced. The ground or the reason

which is offered by the Petitioner for the said delay is not at all just

or true and on the face of it also, it cannot be accepted. Much

reliance was placed on the Proviso to Order 6 Rule 17 of C.P.C. to

submit that as per the said Proviso, 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 the trial, Application

for amendment cannot be allowed after the trial has commenced. In

this case, it was urged that the trial has commenced. The

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Respondent is already under cross-examination and therefore as no

ground is made out to show that there was due diligence on the part

of the Petitioner, the application needs to be dismissed.

7] Learned trial Court, after hearing both the parties, was

pleased to accept the submission of the Respondent and it was held

that as this amendment was sought after about 11 years from the

date of filing the petition for divorce and no plausible explanation

was offered by the Petitioner as to why such amendment was not

sought at the earlier stage, the trial Court rejected the said

application.

8] In this Writ Petition, as the entire emphasis of learned

counsel for Respondent is on the Proviso to the Order 6 Rule 17 of

C.P.C. for ready reference it is reproduced as follows;

"Amendment of Pleadings.- The Court may at any stage at 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

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court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9] The law is well settled that the applications for

amendment in the pleadings are required to be allowed liberally and

so far as amendments in written statement are concerned the

approach of the Court needs to be more liberal vis-a-vis the

amendment in the plaint. It is also equally well settled that such

amendments which are necessary for the purpose of determining

the real question and controversy between the parties, they are

necessarily to be allowed by the Court.

10] Learned counsel for the Petitioner has also in this respect

relied upon two decisions of the Apex Court; one that of Andhra

Bank vs. ABN Amro Bank N.V. and Others, (2007) 6 SCC 167,

wherein it was held that, "It is well settled that delay is no ground for

refusal of prayer for amendment. The only question at the time of

considering the amendment of the pleadings would be whether such

amendment would be necessary for decision of real controversy

between the parties to the suit".

11]             In second decision in the case of B.K. Narayana Pillai vs.




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Parameswaran Pillai and Another, (2000) 1 SCC 712, it is held that,

"The principles applicable to the amendments of the plaint are

equally applicable to the amendments of the written statements. The

courts are more generous in allowing the amendment of the written

statement as question of prejudice is less likely to operate in that

event. The defendant has a right to take alternative plea in defence

which, however, is subject to an exception that by the proposed

amendment other side should not be subjected to injustice and that

any admission made in favour of the plaintiff is not withdrawn.

Otherwise all amendments of the pleadings should be allowed which

are necessary for determination of the real controversies in the suit

provided the proposed amendment does not alter or substitute a

new cause of action on the basis of which the original lis was raised

or defence taken."

12] In this decision also, it was held that the delay in filing

the petition for amendment of the pleadings, if any, should be

compensated properly by costs and error or mistake which, if not

fraudulent, should not be made a ground for rejecting the application

for amendment of plaint or written statement.

13]             Thus the legal position so far as the amendment of




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pleadings is concerned, till the Amendment was brought on the

statute book itself, by inserting the Proviso to Order 6 Rule 17 of

C.P.C. is that all the amendments should be allowed liberally, if they

are necessary to decide the real controversy between the parties

and as regards the amendment in written statement, the approach of

the Court can be more liberal.

14] Now in view of this Amendment in Order 6 Rule 17 of

C.P.C. on account of insertion of the Proviso, the things have changed

a bit as the Proviso provides that once the trial commences, 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, no application for amendment shall be allowed. The Apex Court

was, in the case of Vidyabai and Others vs. Padmalatha and Another,

(2009) 2 SCC 409, while considering the effect of this Proviso,

pleased to observe that, "this proviso is couched in a mandatory

form and as a result the Court's jurisdiction to allow such an

application for amendment is taken away, unless the conditions

precedent therefore are satisfied and the said conditions are that the

Court must come to the conclusion that in-spite of due diligence, the

parties could not have raised the matter before commencement of

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the trial".

15] Learned counsel for the Respondent has also relied upon

the decision of this Court in case of K.T. Kubal and Company vs.

Mujibur Rehman Haji Israr Alam Siddiqui, (2015) 3 Mh.L.J. 892,

wherein also, while considering the effect of this proviso, it was held

that, "if the application for amendment is filed after the

commencement of the trial, there would be one more jurisdictional

fact to be established which is exercise of due diligence. The

applicant must establish that despite due diligence he could not have

raised the matter before the commencement of trial. This could be

the first jurisdictional fact for such application. Unless the

jurisdictional fact is established, Court cannot move to the second

jurisdictional fact of the necessity for the purpose of determining the

real controversies between the parties".

16] According to learned counsel for the Respondent,

therefore, this jurisdictional fact, as to whether despite due diligence

the Petitioner could not have raised this matter before the

commencement of the trial, needs to be established first and

foremost before entering into the question, whether such

amendment is necessary or not.

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17]             Now as regards this aspect, in the application itself, the

Petitioner has stated that though the Respondent had filed petition

for nullity of marriage against her, after filing of the said petition, he

has repeatedly given her assurance and confidence that the same is

filed at the behest of his elder sister and he will ensure that divorce

will not be granted. Hence she remained assured. This ground which

is given by the Petitioner in the application appears to be probable

and true because it is a matter of record that this petition was not

pursued by the Respondent and, as a result, it came to be dismissed

for default on 17/07/2007. Thereafter, he had not filed the

application for restoration for about two years. Only in the year

2009 he filed the application for Restoration with application for

condonation of delay which was also not pursued diligently and

ultimately after 6 years it came to be allowed by order dated

10/04/2015. The very fact that the said petition for divorce came to

be dismissed for default, probabalises the ground put up by the

Petitioner that the Respondent himself was not keen to pursue this

petition for divorce and it was merely filed at the instance or at the

behest of his sister. After restoration of this petition, she has filed

this application for amendment in written statement on 08/12/2016

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after the cross-examination of the Respondent started and she was

restrained from putting certain questions to the Respondent as

there was no pleading to that effect.

18] Therefore, it can not be said that the Petitioner has not

acted with due diligence. The words "due diligence" are not

prescribing any rigid formula and cannot be circumscribed in any

iron jacket formula. They take the colour of the particular facts and

circumstances of each case.

19] In the instant case, one has to give regard to the fact that

the Petitioner remained assured on account of the hope given by the

Respondent and only at the time of cross-examination, when her

counsel was not allowed to cross examine the Respondent on the

particular aspects, it must have been realized by her that these facts

were necessary to be pleaded and then she has filed this application

for amendment.

20] It is always desirable that when the parties are coming

before the Court, especially in matrimonial proceedings and that too

on the serious ground like non- consummation of marriage, cruelty

and desertion, both the parties must be given an opportunity to

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bring all the facts before the Court, which ultimately assist the Court

in arriving at the just decision of the case. Therefore, the law also

allows the parties to the matrimonial litigation even to bring on

record subsequent events. The approach of the Court needs and has

to be different in matrimonial proceedings as the results therein are

have far reaching impact not only on the lives of the parties thereto

but also on the lives of their children and on the society as such. For

that purpose approach of the Court has to liberal while considering

the application for amendment.

21] Here the Petitioner wife has given the reason as to why

inspite of due diligence she could not have raised this matter in her

written statement. There may be more substance in the submission

advanced at bar by learned counsel for the Petitioner that as these

matters which she wants to bring on record by way of amendment,

pertain to the intimate details of their life about consummation or

non-consummation of their marriage, she exercised her due

diligence not to bring those details on record in her written

statement in the light of the assurance or confidence given to her by

the Respondent-husband that this petition for divorce was not to be

perused.

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22]             Therefore, having regard to these facts on record, I find

that this application for amendment of written statement should

have been allowed by the trial Court. As to the prejudice likely to be

caused to the Respondent, the same can be compensated always in

terms of money. However, having regard to the fact that the

application for interim maintenance filed by the Petitioner is

rejected and she is already incurring the litigation expenses, it is not

proper to impose further the costs on her.

23] As a result, the Writ Petition is allowed with no order as

to costs. The impugned order passed by the trial Court is quashed

and set-aside.

24] The Application for amendment in the written statement

filed by the Petitioner before the trial Court is allowed.

25] The Petitioner shall carryout the proposed amendment

within three weeks from the date of this order.

26] The trial Court shall decide the petition pending before it

as expeditiously as possible, provided both parties and their learned

counsel extend their cooperation.

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27]             Writ Petition is disposed off in above terms.


28]             Rule is made absolute in above terms.



                                 (DR. SHALINI PHANSALKAR-JOSHI, J.)