Hon'Ble Vivek Bharti Sharma vs Smt
2023 Latest Caselaw 3413 UK

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                                      WPMS No.1956 of 2022
                                      Hon'ble Vivek Bharti Sharma, J.

Present Mr. Pawan Mishra, counsel for the petitioner.

2. By means of present writ petition, petitioner has sought a writ of certiorari to set aside the order dated 29.04.2022 passed by Principal Judge, Family Court, Dehradun in misc. case no.3/2022 Mahesh Kumar vs. Smt. Kabita Chhetri.

3. Learned counsel for the petitioner would submit that the petitioner had filed a suit being O.S. No.726 of 2018 for dissolution of marriage by decree of divorce and the same was decided in favour of the petitioner/husband and divorce was granted vide judgment dated 29.09.2020; that, when the petitioner/husband submitted the copy of judgment in his department then he came to know that the name of the petitioner and the date of marriage is incorrect in the impugned judgment.

4. He would submit that the petitioner moved an application under Order 6 Rule 17 read with Section 152 CPC before the Principal Judge, Family Court, Dehradun stating that because of typographical mistake word "iq=" (son) and date of marriage was wrongly typed in the plaint and accordingly prayed to correct the same in the plaint as well as in the judgment, however, the said application was disallowed by the court below.

5. Learned counsel for the petitioner would refer to the Order VI Rule 17 of CPC and would submit that by conjoint reading of Order VI Rule 17 r/w Section 152 of CPC this amendment is permissible, however, the court below overlooked the said provisions and dismissed the application without application of judicial mind.

6. Heard learned counsel for the petitioner and perused the material available on file.

7. Order 6 Rule 17 of CPC stipulates that the Court may at any stage of 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.

However, 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.

8. In the present case, it is undisputed that that the divorce suit has already been decided and thus it is pending at no stage, i.e. to say, the proceedings of the suit are over and not in existence as on date.

9. Secondly, the amendment in pleadings can be done for determining the real questions in controversy between the parties. As the suit/petition of the petitioner/husband has already been decided and his marriage with respondent has already been dissolved by decree of divorce, therefore, no controversial question exists and thus no amendment is necessitated.

10. As far as Section 152 CPC is concerned this is for amendment of judgments, decrees or orders and under this Section the Court can correct the clerical or arithmetical mistakes in judgments, decrees or orders or errors and not in the pleadings.

11. In view of the reasons recorded above, this Court does not find any merit in the present petition. Same is hereby dismissed.

(Vivek Bharti Sharma, J.) 08.11.2023 BS