Gopal Krishan Dua vs Rajni Dua @ Dolly Dua
2010 Latest Caselaw 4194 Del

7
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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment Delivered on: 10.09.2010

+     CM(M) 685/2010

GOPAL KRISHAN DUA                                      ..... Petitioner
               Through:             Mr.Prabjot Johar, Advocate

                     versus

RAJNI DUA @ DOLLY DUA                                 ..... Respondent
               Through:             Mr.Sunil Mittal and Mr.Asim Naeem,
                                    Advocates for respondent.

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI

         1. Whether the Reporters of local papers may be allowed
            to see the judgment?
         2. To be referred to Reporter or not?
         3. Whether the judgment should be reported in the
            Digest?

G.S.SISTANI, J. (ORAL)

1. Present petition is directed against the order dated

19.04.2010 passed on an application under Order VI Rule 17

of the CPC filed by the respondent (petitioner before trial

court) for amendment of the petition. The undisputed facts

which emerge are that marriage between the parties was

solemnized in the month of August, 1989. Thereafter on

account of marital discord, respondent filed a petition under

section 13 (1 (i) (a) of the Hindu Marriage Act, seeking

divorce on the ground of cruelty. A written statement was

filed wherein an objection was taken that petition has not

been framed in accordance with Rules. Issues were framed

in the matter on 12.05.2008 and thereafter cross-

examination of the respondent (petitioner before trial court)

concluded in January, 2010. During the cross-examination it

was put to the respondent that the petition had not been

framed as per Rules 8 and 9 of the Hindu Marriage Act, 1955

Rules (Delhi High Court). Thereafter an application was filed

by the petitioner herein under Order VII Rule 11 CPC, seeking

rejection of the petition. Immediately, thereafter an

application was filed by the respondent herein seeking

amendment of the petition.

2. Counsel for the petitioner submits that as per Rule 8 of the

Hindu Marriage Act, 1955 Rules (Delhi High Court), every

petition is to be accompanied by an affidavit to the effect

that it has not been presented or prosecuted in collusion with

the respondent. He also submits that this mandatory

requirement was not complied with by the respondent herein.

He has assailed this order primarily on two grounds. Firstly

after the commencement of the evidence, the amendment

could not have been allowed, in view of the amendment in

the Code of Civil Procedure in the year 2002, elaborating on

this contention further counsel submits that the application is

completely devoid of particulars is vague and extremely

casual in nature. He also submits that bare reading of the

application would show that the application does not state

that on account of due diligence the amendment could not be

carried out prior in time. The second submission made by

counsel for the petitioner is that the application for

amendment as also the amended petition which has been

filed along with the application for amendment, and

particularly the affidavit does not contain the amendments

which are sought to be made in the main petition. It is

submitted that neither in the body of the application it has

been prayed that permission be given to amend the affidavit,

nor in the amended petition which is sought to be relied upon

by the respondent herein. In support of the submissions

made, Mr.Johar, counsel for the petitioner has relied upon

Ajendraprasadji N. Pandey & Anr. Vs. Swami

Keshavprakeshdasji N. and Anr. (2006) 12 SCC and more

particularly paragraphs 33, 36, 43, 45 and 57, which read as

under:

33. Section 16 of the Amendment Act reads as follows:

                   "16. Amendment of                       Order       6.--In    the     First
                Schedule, in Order 6,--
                               *         *       *
                         (iii) Rules 17 and 18 shall be omitted."

The provision as it exists now after the Civil Procedure Code (Amendment) Act, 2002 Order 6 Rule 17 "17. Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading 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." (emphasis supplied)

36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration.

43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their

court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief.

45. On 13-3-2006, Shri K.P. Swami, Respondent 1 offered in the witness box for cross-examination, however, he was not cross-examined and the application of Appellant 1 for 15 days' adjournment was rejected. Hence, the right to cross- examination was closed and the matter was adjourned to 16-3-2006.

57. It is submitted that the date of settlement of issues is the date of commencement of trial. (Kailash v. Nanhku4) Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination-in-chief as date of commencement of trial, the matter will fall under proviso to Order 6 Rule 17 CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter-affidavit which proves lack of due diligence on the part of Defendants 1 and 2 (the appellants)."

3. While in paragraph 33, the provision Order VI Rule 17 CPC

have been quoted, the Apex court in the remaining

paragraphs laid stress on the fact that the proviso to Order VI

Rule 17 curtails absolute discretion to allow amendment.

Stress has also been laid that the Court must satisfy itself

that in spite of due diligence the amendment could not have

been sought earlier. There is no quarrel to this proposition.

4. It is submitted that counter claim for restitution of conjugal

rights has been filed and that allegations are also made that

respondent is residing in adulterous relationship.

5. Counsel for the petitioner has also drawn attention of this

court to Bachhaj Nahar Vs. Nilima Mandal & Anr. 2008

(15) SCALE, 158 and more particularly paragraphs 60, to

canvass his argument that in civil suit only such a relief can

be granted which form part of the pleadings and not that any

Court can on examination of facts grant any relief as it thinks

fit.

6. Counsel for the respondent at the very outset submits that

the petition under section 13 (1)(i)(a) of the Hindu Marriage

Act, admittedly did not contain the mandatory provision of

Rule 8 of the Hindu Marriage Act, 1955 Rules (Delhi High

Court), however, he submits that the relevant paragraph was

missed out inadvertently, due to typographical omission. In

the application it has also been stated that the omissions

were not deliberate and also that the same would not affect

or change the nature of petition in any manner and would not

cause prejudice to either of the parties. He further submits

that even otherwise, no useful purpose would be achieved

and it would be to the benefit of none in case the

amendments were not allowed and the petition would have

been dismissed, as the respondent is not prevented by any

law from filing another petition, however, the same would

only waste the precious time of the Court, besides that the

parties would face to further harassment and delay. He also

submits that petitioner has made all efforts to delay the trial

to the extent that while the issues were framed on

12.05.2008 various opportunities were availed by the

petitioner to cross-examine the respondent herein. He

further submits that petitioner did not take a specific

objection in the written statement and it is only for the first

time in an application under Order VI Rule 17 CPC that a

specific objection was taken that the petition is not in

conformity with the Hindu Marriage Act, 1955 Rules (Delhi

High Court), which led to filing of the application for

amendment. He also submits that the application for

amendment was filed within days of filing of the application

under Order VII Rule 11 CPC, which would show that

respondent was neither callous nor it would show any

inaction on her part.

7. I have heard counsel for the parties and perused the

application which has been filed. It may be noticed that by

the application, applicant has sought necessary amendments

in the main petition. Undoubtedly, there is no specific prayer

that the amendment may also be allowed in the affidavit to

the amended petition. The supreme Court in the case of

Ajendraprasadji N. Pandey (Supra), while noticing the

amendment in the Order VI Rule 17 CPC, has observed that

the object of this proviso was to prevent frivolous

applications which were being filed to delay the trial. Further

it was observed that Order VI Rule 17 CPC was amended due

to the recommendation of the Law Commission since Order

(sic Rule) 17, as it existed prior to the amendment, was

invoked by the parties interested in delaying the trial. That

to shorten the litigation and speed up disposal of the suits,

the amendment was made by amending Act, 1999. The Apex

Court in various judgments including in the case of Kailash

Vs. Nanhku 4 (2005) 4 SCC 480, held that all the rules and

procedures are handmaids of justice and the language

employed by the draftsmen of procedural law may be liberal

or stringent, but the fact remains that the object of

prescribing procedure is to advance the cause of justice.

What is to be seen in the facts of this case is whether the

respondent herein (petitioner before the trial court) has made

this application with a view to delay the trial or whether the

application has been made seeking amendment which is

formal in nature. Having regard to the fact that a petition for

divorce has been filed on the grounds of cruelty and the

same is being hotly contested, sure enough could not have

been presented in collusion with the respondent, keeping in

view the fact that the allegations and counter allegations

which have been made including a counter claim which has

been raised by the petitioner herein that the respondent is in

adulterous relationship with another person. The petitioner

has also not spared the present proceedings and has also

placed a photograph on record, to show the situation which

exists between the parties. While certainly, the respondent

could have elaborated that the amendment could not have

been made earlier in spite of due diligence, the application

certainly mentions that the act was not deliberate and on

account of inadvertent /human/ typographical omission. It

cannot be said that the respondent would have in any way

benefited from not including the formal amendment in the

petition or in the affidavit, much less can it be said that this

delay in making the application was with an intention to

delay the matter.

8. I find no infirmity in the order of the trial court and also find

no force in the submission made by counsel for the petitioner

that since a specific averments was not made in the petition

that the amendment be permitted in the affidavit as well, as

on filing of an amended petition, obviously the same would

have been supported by an affidavit, which would swear the

contents to be true and correct.

9. Having heard counsel for the parties and taking into

consideration the facts of this case, I find no infirmity in the

impugned order and accordingly, the petition is dismissed.

10. At this stage, counsel for the petitioner submits that in view

of the orders passed, he will not press the application filed

under Order VII Rule 11 of CPC, however, he prays that time

for filing the written statement, may be extended. Counsel

for the respondent fairly agrees to the same. Let the written

statement be filed within three weeks.

11. In view of above, petition stands disposed of.

G.S. SISTANI, J.

September 10, 2010 'ssn'