Smt. Sunita Soni vs Sandeep Soni
2021 Latest Caselaw 1683 MP

HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR



MISC PETITION NO.                           1243/2021
Parties Name                SMT. SUNITA SONI

                            VS.

                            SANDEEP SONI
Bench Constituted           Single Bench
Judgment delivered By       HON'BLE SHRI JUSTICE VISHAL DHAGAT
Whether       approved   for YES/NO
reporting
Name of counsel for parties For petitioner: Smt. Amrit Kaur Ruprah, Advocate.

                            For Respondent : Shri R. K. Sanghi, Advocate.

Law laid down               -
Significant       paragraph -
number


                                (O R D E R )
                                30/04/2021

Respondent Sandeep Soni has filed a petition before Family

Court Jabalpur under Section 13(1) of Hindu Marriage Act, 1955.

In this case he filed an application under Order 6 Rule 17 CPC for

proposed amendment in petition. Application filed by respondent

was allowed by the trial court and petitioner was also given an

opportunity to do consequential amendment.

2. Petitioner filed an application under Order 6 Rule 17 of Code

of Civil Procedure on 09.02.2017. Said application was allowed on

20.02.2017 and petitioner was permitted to incorporate proposed

amendment within period of three days. Counsel appearing for

petitioner has withdrawn his Vakalatnama on 28.02.2017.

Thereafter Shri R.K. Singh Saini, Advocate was engaged by

petitioner on 19.04.2017. As there was change of counsel in the

case and due to bonafide omission on part of petitioner's counsel,

amendment could not be incorporated in the written statement.

Evidence of parties was closed on 08.11.2019 and case was fixed

for final hearing.

At this stage counsel appearing for petitioner has filed an

application under Order 6 Rule 18 of Code of Civil Procedure, for

extending the time to incorporate proposed amendment which

was allowed vide order dated 20.2.2017. Trial court by its

impugned order dated 10.03.2021 dismissed the application filed

by petitioner for extension of time to incorporate the amendment

application.

3. Being aggrieved by aforesaid impugned order petitioner has

filed this petition before this court making prayer for setting

aside the impugned order and for extending the time period so

that amendment can be incorporated in the written statement.

4. Learned trial court rejected the application filed by petitioner

on the ground that she was cross examined on 30.10.2019 and at

that time her attention was invited to paras 8 and 9 of affidavit

filed in evidence and it was specifically pointed out to her that

said facts has not been mentioned in the written statement.

Thereafter on 05.01.2021 petitioner submitted that she does not

want to give any evidence on her application under Section 25 of

Hindu Marriage Act. The case was fixed for final arguments and

arguments were made on 02.03.2021, 03.03.2021, 04.03.2021

and 05.03.2021. Petitioner filed application under Order 6 Rule 18

CPC, on 04.03.2021. Petitioner and her counsel were aware on

30.10.2019 and thereafter that amendment has not been

incorporated but no steps have been taken to file application

under Order 6 Rule 18 CPC. Application was filed on 04.03.2021,

therefore, the same was not bonafide in nature. High Court has

given direction for concluding the trial and looking to the directory

provisions of Order 6 Rule 18 CPC, application filed by petitioner

was rejected by the trial court.

5. Counsel appearing for petitioner submitted that party should

not suffer for the lapses on the part of the counsel. Petitioner will

suffer irreparable injury if she is not given an opportunity for

rebuttal of pleadings. Learned Family Court committed an error in

holding that application filed by petitioner is not bonafide and on

this ground pressed for setting aside impugned order dated

10.03.2021 and for extending the time to incorporate amendment

in written statement. Counsel appearing for petitioner relied on

judgement reported in AIR 1981 SC 1400, (Rafiq and another

Vs. Munshilal and another). Relying on said judgement it is

submitted by the counsel for the petitioner that party should not

suffer for misdemeanour or inaction of the counsel.

6. Counsel appearing for respondent submitted that petitioner

may not be given advantage of our own mistake. Petitioner was

present in court on many occasions and her attention was drawn

to the pleadings in cross examination. On this date counsel for

petitioner was also present. It was in the knowledge of petitioner

as well as her counsel that amendment has not been

incorporated. No steps were taken by them to incorporate the

amendment. Application for extension of time is filed belatedly

and same will prejudice the respondent. Application filed is not

bonafide in nature. If application is allowed then fresh issue is to

be framed and parties have to be allowed to adduce evidence on

said issue. This will prejudice the respondent and petitioner may

not be allowed to take advantage of her own mistake. On these

grounds he made a prayer for dismissal of this Misc. Petition.

Counsel appearing for respondent relied on judgement reported in

AIR 1974 Supreme Court 130, Dilbagh Rai Jarry vs Union of

India and Others. He has relied on para 22 of said judgement

which is quoted as under: -

"The contention is untenable. While it is true that Rules 17 and 18 of Order 6 of the Code do not, in terms, apply to amendment of an application under S. 15(2), the Authority is competent to devise, consistently with the provisions of the Act and the Rules made thereunder, its own procedure based on general principles of justice, equity and good conscience. One of such principles is that delay defeats equity. The Authority found that the applicant was guilty of gross negligence. He took no steps whatever to carry out the amendment for several months after the order permitting the amendment, and thereafter, when the case was at the final stage, he suddenly woke up, as it were, from slumber, and sought to amend his application. In the circumstances, the Authority rightly refused to put a premium on this delay and laxity on the part of the appellant. In the view we take on the claim to running allowance we need not pronounce finally on whether an amendment to the relief once granted requires to be formally carried out in the petition, as in a pleading in court, less rigidity being permissible in quasi-judicial proceedings."

7. Counsel for the respondent further relied on judgement

reported in 1998 (2) SCC 81 Banarasi Dass Vs. Brig.

Maharaja Sukhjit Singh and another. Relying on said

judgement it is argued by counsel for respondent that procedure

is meant to advance justice but when law prescribes as to how

jurisdiction is to be exercised and power and is conferred for that

purpose, it has to be exercised that way. It is argued that

petitioner was granted three days time to incorporate

consequential amendment but same was not done. Application

under Order 6 Rule 18 CPC, was filed after a long delay of about

four years. Looking to the long delay in filing application for

extension of time, same ought to have been rejected and no

premium on delay and laxity on part of petitioner be given to him.

8. Heard the counsel for petitioner as well as respondent.

9. From the facts stated in miscellaneous petition, it is clear

that consequential amendment application was allowed on

20.02.2017. Thereafter amendment cannot be incorporated as

counsel has withdrawn his Vakalatnama on 28.02.2017. New

advocate was engaged by respondent on 19.04.2017. Said

counsel did not incorporate the amendment. Petitioner does not

understand the nicety of law and its repercussions. She thought

counsel engaged by her will take care of the matter but due to

want of knowledge or mistake counsel could not incorporate the

amendment. Repeated attention of petitioner was drawn to

pleadings in cross examination but then also no steps were taken

to file an application for extension of time to incorporate the

amendment. Petitioner nor her counsel has not made a

categorical statement that new counsel which was engaged by

her was not aware of order passed by trial court allowing

consequential amendment application. Neither it has been stated

that new counsel which was engaged by the petitioner did not

examine the record of the case before arguing the case and they

were not aware about the order of trial court allowing application

for consequential amendment. In view of the same, it cannot be

said that application filed under Order 6 Rule 18 CPC, is bonafide

in nature. There was delay in filing application under Order 6 Rule

18 of CPC and negligence on part of petitioner's counsel in

incorporating the amendment. Both the parties had already

closed their evidence and some arguments had also been

advanced by both the parties. At this stage, considering the

facts and circumstances of the case trial court has not committed

any error of law or jurisdiction in dismissing the application filed

under Order 6 Rule 18 of CPC.

10. In view of aforesaid miscellaneous petition filed by the

petitioner is dismissed.

(VISHAL DHAGAT) JUDGE mms

Digitally signed by MONSI M SIMON Date: 2021.04.30 15:20:45 +05'30'