Ashok K Raizada vs Manjul Raizada
2011 Latest Caselaw 4583 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                     +     CM(M) 588/2010

                          Date of Reserve : 27th July, 2011
%                         Date of decision : 16th September, 2011

    ASHOK K RAIZADA                           ..... Petitioner
                   Through : Mr. Saurabh Banerjee,
                             Ms. Suparna Rai and
                             Mr. Neeraj Kumar, Advs.
              versus
    MANJUL RAIZADA                          ..... Respondent
                   Through : Mr. S.L. Ladi, Sr. Adv. with
                             Mr. Neeraj Kumar Sharma, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may             NO
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?            NO

3.      Whether the judgment should be                    NO
        reported in the Digest?

                           JUDGMENT

1. The petitioner has challenged the order dated 5th February,

2010 passed by the learned Additional District Judge whereby his

application under Order VI Rule 17 of the Code of Civil Procedure

has been dismissed on the ground that the trial has already

commenced and with due diligence, the petitioner could have

raised this matter before the commencement of trial.

2. The learned counsel for the petitioner submits that the

petitioner discovered some documents mentioned in para 6 of

the application under Order VI Rule 17 of the Code of Civil

Procedure on 17th May, 2009 whereupon the application seeking

amendment was filed.

3. The learned counsel for the respondent submits that the

trial has already commenced. The cross-examination of the

respondent has concluded and the application has been filed by

the petitioner to fill up the lacunae. It is submitted that the

proposed amendments are barred by the Proviso to Order VI Rule

17 of the Code of Civil Procedure as the trial has already

commenced and with due diligence, the petitioner could have

raised the matter before the commencement of the trial.

4. The parties are living separately since 30th July, 2007 when

the petitioner forced the respondent and her daughters to leave

the house. The petitioner has raised serious allegations attacking

the character of the respondent. It does not appear to be

plausible that the petitioner would not have cleaned/scanned the

house for about two years after the respondent left the

matrimonial house on 30th July, 2007. However, even assuming

the petitioner's contention to be true, it shows sheer lack of due

diligence. In that view of the matter, the proposed amendment is

clearly hit by the Proviso to Order VI Rule 17 of the Code of Civil

Procedure and, therefore, the learned Trial Court has rightly

rejected the petitioner's application for amendment of the written

statement. The petitioner's application does not appear to be

bona fide and has been filed with the intention to delay the trial

which has already commenced.

5. The learned counsel for the petitioner has referred to and

relied upon the judgments in the case of Davinder Singh vs. Surjit

Malhotra, 126 (2006) DLT 102; Vidyabai vs. Padmalatha, JT 2009

(1) SC 303; Revajeetu Builders and Developers vs.

Narayanaswamy and Sons, (2009) 10 SCC 84; Rajesh D. Darbar

vs. Narasingrao Krishanji Kulkarni, (2003) 7 SCC 219;

Ramchandra Sakharam Mahajan vs. Damodar Trimbak Tanksale,

AIR 2007 SC 2577 and North Eastern Railway Administration,

Gorakhpur vs. Bhagwan Das, (D), AIR 2008 SC 2139. However,

the aforesaid judgments do not help the petitioner in view of the

clear finding of this Court that the application is not bona fide and

with due diligence, the petitioner could have raised the matter

before the commencement of the trial.

6. There is no merit in the petition which is hereby dismissed.

J.R. MIDHA, J SEPTEMBER 16, 2011/mk