Court No. - 44
Case :- FIRST APPEAL No. - 777 of 2021 Appellant :- Diwashankar Saraswat Respondent :- Akansha Mishra Counsel for Appellant :- Salilendu Kumar Upadhyay
Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Krishan Pahal,J.
Heard learned counsel for the appellant and perused the record.
By means of the present petition, the order dated 22.02.2021 passed by the Family Court, Mainpuri in Matrimonial petition no.194 of 2014 has been challenged on the ground that the amendment sought by the appellant in the written statement by means of the application dated 12.1.2021 was filed with a view to elaborate the defence taken in the written statement. There was no requirement for appellant/applicant to bring any additional evidence in case the amendments were allowed. No harm, therefore, could have been caused to the plaintiff. The Family Court has erred in dismissing the same.
Before dealing with the said arguments, we may note that the order of rejection of the amendment application being interlocutory order, the appeal under Section 19 of the Family Court Act is not maintainable. However, on the insistence of the learned counsel for the appellant having gone through the reasoning given by the Family Court in the order impugned as also the amendment application and the written statement appended herein, we find that the amendment was sought by way of addition of para '32 'A' in the written statement which is in the nature of legal plea and could have been taken by the appellant during the argument in his defence. In the pleadings, i.e written statement only factual pleas are required to be taken.
Even otherwise, the Family court has noted in the order impugned that the written statement was filed in the year 2015 and the petition under Section 9 of the Hindu Marriage Act is pending since 2014. No plausible explanation could be submitted by the applicant for not bringing the said statement on record while filing the written statement. The applicant could also not explain as to why amendment is necessary for disposal of the proceedings.
Further, we may note that the law of amendment as per the Order 6 Rule 17 CPC is that the amendments which are necessary for effective disposal of the proceedings can only be allowed. The act of the appellant in filing the amendment application in a casual manner to take a legal pleading that too at the stage of the final disposal of the proceedings, is not bona fide. The proposed amendment cannot be said to be necessary for effective disposal of the proceedings as the legal arguments can be raised during hearing.
The amendment application is, accordingly, found misconceived and appears to have been filed in order to delay the proceedings.
For the aforesaid, we do not find any merit in the appeal. The appeal is dismissed at the admission stage itself.
Order Date :- 25.10.2021 Harshita