Smt. Vandana Jain vs Shri Sandeep Jain
2012 Latest Caselaw 7014 Del

27.
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                             Date of Decision: 07.12.2012

%                                FAO No. 488/2012

       Smt. Vandana Jain                                 ..... Appellant
                                 Through:     Mr. D.K. Rustagi, Advocate
                    versus

       Shri Sandeep Jain                                  ..... Respondent
                                 Through:     Mr. Harish Malhotra, Senior
                                              Advocate with Rajani Chauhan


       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J.

C.M. No. 20403/2012 (exemption)

Exemption is allowed, subject to all just exceptions.

FAO No. 488/2012

1. The appellant herein seeks setting aside of order dated 30.10.2012 and 08.11.2012 passed by the Additional Principal Judge in HMA No. 974/2010.

2. By impugned order dated 30.10.2012, the application under Order VI Rule 17 read with Order VIII Rule 1A read with Section 151 of the Civil Procedure Code, 1908 (hereinafter referred to as the „CPC‟), of the

appellant herein, seeking amendment of her written statement and for placing on record certain documents - in the petition under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 (hereinafter referred to as the „HMA‟), filed by her husband/respondent herein, seeking dissolution of marriage - has been dismissed.

3. By subsequent impugned order dated 08.11.2012, the Additional Principal Judge has, upon request of the counsel of the respondent-husband, closed the cross-examination of the appellant on account of her non-appearance without any just or sufficient cause.

4. The appellant sought to incorporate certain averments and place on record certain documents related thereto. She sought to bring on record: that her husband never performed his matrimonial obligations other than meeting the financial requirements after 1994; that her husband never performed his obligations, for mutual sexual satisfaction, on account of his intimate relationships with other women; that the father of her husband was an accused in a case under Section 376 of the Indian Penal Code- of which she claimed to have an idea in the year 1992-1993, but despite specific instructions to her counsel, question in relation thereto were not posed during cross examination; that she had normal relationship with her husband till 26.04.2009, during which period both of them went on annual trips during summer vacations every year, the husband attended the marriage of her sister and had hosted lunch for the newly wed couple, and; that her husband visited her even after filing of the divorce petition on the pretext of meeting their children. It was claimed that the documents/photographs in

relation to the said incorporations were not in her power and custody and that the same were procured, via a massive search work from various common friends and relatives, after receipt of notice of an application under Section 340 of the Criminal Procedure Code (hereinafter referred to as „CrPC‟), filed by her husband against her.

5. It was stated by the appellant that, on account of lack of a source of income, she did not get prompt legal advice in filing the written statement, which came to be filed on the last date after engaging a counsel at the last moment.

6. By the impugned order dated 30.10.2012, Additional Principal Judge, Family Court, has dismissed the afore-mentioned application on the following grounds:

I. It was not the case of the appellant that the alleged facts and documents were not in existence at the time of filing of the written statement.

II. It was not the case of the appellant that she did not have access to the documents or the pleadings she sought to rely upon. III. There was a clear lack of due diligence on the part of the appellant.

As per the appellant herself, she made efforts to search the documents only after receipt of notice of the application under Section 340 CrPC, and which she procured within three days thereafter. It is not her case that she had made efforts to search the documents, proposed to be placed on record, at the time of filing of her written statement, which as per the record was filed after 9/10 months of receipt of summons of

the petition, or even when the issues were framed. Moreover, the appellant did not mention in her written statement that she was going to rely on any documents which she was unable to file in court at that point of time. She did not reserve her right to file any documents as and when the same were found/traced by her.

IV. The plea of the appellant that she did not get prompt and active legal advice was without any merit. Appellant filed her written statement after 9/10 months of the receipt of summons of the petition. A period of 9/10 months could not be said to be less or inadequate. The record also revealed that she had changed her counsel on more than one occasion and that the present counsel also did not find anything lacking in her pleadings and had, in fact, taken adjournments twice on 21.09.2012 and 22.09.2012.

V. The appellant herself, after being afforded a due opportunity, had made a categorical statement on 12.10.2011 that she did not have any documents to be filed in the case. If at all she had to file any documents which she did not have in her power and custody, she could have so stated on that day itself.

VI. The Counsel of the appellant had crossed examined the respondent-

husband and his witness at length. The appellant herself was cross- examined to a great extent by the respondent-husband‟s counsel. The appellant did not find anything wrong with her the then counsel. In such circumstances, she cannot be allowed to put the blame on the shoulders of her erstwhile counsel.

7. Before us, learned counsel for the appellant has endeavoured to shift the blame for lack of due diligence in incorporating the afore- mentioned averments/documents in the written statement on the previous counsel of the appellant. It is submitted that the appellant did not receive prompt and effective legal advice in as much, as her previous counsel filed the written statement on the last date given by the Court and that the written statement was bereft of many particulars, which did not give a true account of the harassment and cruelty inflicted on the appellant by the respondent- husband. It is submitted that the appellant was very much diligent and had, in fact, appeared on almost each and every date of hearing. The appellant being a housewife and having liability of two minor children was dependent on her previous counsel, who ill-advised her leaving her with no option but to engage a new counsel.

8. Learned counsel for the appellant has submitted that the learned Judge has proceeded on a wrong premise that the appellant had 9/10 months to file the written statement. He places reliance on the order sheets of the Family Court in support of this submission. It is submitted that upon service being effected, on the very first date the matter was referred to mediation. The mediation failed and this written statement recorded in the order sheet dated 07.04.2011. Therefore, the time taken for filing the written statement could not be computed from the date of service of summons in November/December, 2010. He also sought to urge that the amendments and documents sought to be placed on record have a bearing on the merits of the case, in as much as they go to the root of the matter and are necessary for the proper adjudication of the issues between the parties. It is submitted that

the amendments sought were only an elaboration and clarification of the defence of the appellant, already stated in the written statement, and that the same would not cause prejudice to the respondent-husband. It is submitted that the amendments sought ought to have been liberally considered and allowed by the Additional Principal Judge.

9. As the last leg of his argument, learned counsel submits that the impugned order should not come in the way of substantive justice being done in the present case and that the aforementioned application should be allowed, even if the same is at the cost of penalising/ punishing the appellant for the lack of due diligence.

10. Having perused the records of the case, the orders impugned and the submissions of the learned counsel for the appellant, we find that the present appeal is unsustainable and devoid of any merit.

11. Order VI Rule 17, CPC, being the provision of law relevant for the present purposes, reads as under:

"ORDER VI

PLEADINGS GENERALLY

* * *

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)

12. The proviso to Rule 17 above was inserted by amendment of the C.P.C. brought about in 2002. Prior to that the said proviso was not there. The purpose of inserting the said proviso is to generally discourage amendment of the pleadings after commencement of trial- the only exception being when the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of trial. The real issue, therefore, is: whether the appellant has acted with due diligence and that, inspite of such diligence, it could not have pleaded the amendment sought before commencement of trial.

13. In the present case, the factum of commencement of trial is not in dispute. Further, it is also not disputed to by the appellant herein that there was lack of due diligence in not having incorporated the amendments sought at an earlier stage i.e. at the time of filing of the written statement. In order to fall within the afore-stated proviso and claim the benefit thereof, the only plea raised by the appellant, as mentioned above, is that the lack of due- diligence was not attributable to her, but to the previous counsel.

14. The said plea, in view of perusal of the records of the case and the above-stated reasoning given to by the Additional Principal Judge, appears to be meritless.

15. As per the record of the divorce proceedings, the written statement was filed on 23.09.2011, after time was granted for the said purpose on 07.04.2011. Therefore, though the appellant may not have had 9/10 months, she nevertheless took over 5 months to file the written statement which is much more than 30 days permitted by the C.P.C. On 23.09.2011, the counsel for the appellant requested for time to file documents. The said request came to be allowed and the matter was put up for 12.10.2011.

16. On 12.10.2011, appellant entered appearance along with her counsel, wherein the counsel made a statement that "he has no documents to be filed". The said statement was not objected to by the appellant either on 12.10.2011 or on any date thereafter. The matter then proceeded for trial, wherein the respondent-husband was examined and cross-examined. It was only after the cross-examination of the appellant had started, that the appellant engaged a new counsel, who filed his vakalatnama on 21.09.2012. The new counsel, also, did not on the said date of hearing or the date thereafter i.e. 22.09.2012, seek to file additional documents or to amend the written statement. It was only when the respondent-husband moved an application under Section 340 CrPC, the request for filing additional documents/amendment of written statement came for the first time on 29.09.2012.

17. The appellant requested for time to file documents on 23.09.2011, though, the same should have been filed with her written statement. On the next date of hearing, the counsel, in the presence of the appellant, stated that he had no documents to file. The said statement, as aforementioned, was never objected to by the appellant on that date or any date thereafter. She, in fact, continued to persist with her previous counsel up-till her cross-examination. It was only at that stage of proceedings that she engaged a new counsel, who also admittedly did not make any such request to amend the written statement and file additional documents for two dates of hearing.

18. Furthermore, the fact that she made the documents available within three days of receipt of the application under Section 340 CrPC, itself shows that she was very much in a position to produce the same documents upon exercise of due diligence in the first instance-when she filed her written statement, or, at least when she sought time to file the same on 23.09.2011. Not having done so diligently before the commencement of trial, she is debarred from seeking to produce additional documents or seeking amendment when almost the entire trial was over. To allow such amendment would be in the teeth of the aforementioned provision and the object it seeks to advance i.e. to expedite trial and defeat such dilatory tactics on the part of one or the other litigant. The appellant, as rightly held by the Additional Principal Judge, cannot be allowed to take advantage of her own negligence/wrongs at this stage.

19. Accordingly, the present appeal is dismissed, leaving the parties to bear their respective costs.

C.M. No. 20402/2012 (Stay)

In view of the aforesaid, no orders are called for in the present application and the same is, accordingly, dismissed.

VIPIN SANGHI, J.

SANJAY KISHAN KAUL, J.

DECEMBER 07, 2012 BSR/`NS'