Court No. - 34
Case :- FIRST APPEAL No. - 361 of 2018 Appellant :- Smt. Snehlata Respondent :- Gaurav Sharma Counsel for Appellant :- Divakar Rai Sharma Counsel for Respondent :- Ajay Kumar Shukla
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard learned counsel for the appellant and learned counsel respondent.
2. This appeal has been preferred against order dated 16.4.2019 passed by Additional Principal Judge, Family Court/Additional District Judge, Court No. 2, Aligarh in Marriage Petition No. 631 of 2016 whereby amendment application of respondent-husband has been allowed.
3. With consent of parties, we proceed to decide this appeal at this stage since only legal issue is involved and that can be decided on the basis of record.
4. Respondent-husband filed a matrimonial petition under Section 9 of Hindu Marriage Act, 1955 (hereinafter referred to as 'Act, 1955') seeking restitution of conjugal rights. Relief prayed in plaint dated 7.3.2015 reads as under:-
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5. Appellant filed a short application before court below that she is ready to go with respondent-husband and only an undertaking be taken from him that he will keep appellant and children properly. No order could be passed on the said application by court below and, in the meantime, respondent-husband filed an amendment application dated 16.11.2015 for changing suit from restitution of conjugal rights under Section 9 of Act to divorce suit under Section 13. He sought permission to add paras (11v) to (11j) after para 11 and other corresponding changes in plaint. This amendment application has been allowed by court below by impugned order dated 16.4.2018.
6. Learned counsel for the appellant contended that by way of amendment, nature of suit has been changed inasmuch as suit under Section 9 of Act 1955 was only for restitution of conjugal rights but it has been changed to a divorce petition which is not permissible under law, hence, impugned order may be set aside.
7. Learned counsel for respondent submitted that in fact respondent- husband wanted to seek divorce but it was wrongly filed under Section 9 of Act 1955, thus, he had two options, either to file fresh suit for divorce or amendment application for reasons stated before court below.
8. Time and again, Courts have given a very wide scope of amendment of pleadings but there has been an intervention of Legislature with an object for preventing dilatory tactics to delay disposal of cases and in that view of the matter, first intervention came by virtue of Amendment Act, 1999 whereby in Order 6; Rules 17 and 18 were omitted. However, this complete omission did not found favour with the litigating people and realizing great hardship, Legislature again intervened vide Amendment Act, 2002 whereby Rule 17 was incorporated but a restriction in the shape of a proviso was added therein. Order 6 Rule 17 came to be inserted by Amendment Act, 2002 reads as under:
"17. Amendment of pleadings.--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:
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"
9. A bare perusal of above Rule 17 would show that an amendment is permissible by the Court at any stage of proceedings, of course, in such manner and in such terms as the Court may find just, but, such an amendment is required to be necessary for the purpose of determining real question in controversy between the parties. It gives very wide power to the Court for allowing amendment but the proviso added therein restricts such wide power simultaneously by observing that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite due diligence, party could not have raised the matter before the commencement of trial. Now there is an embargo on an application for amendment to be allowed once the trial has commenced. The embargo is complete. The only scope, thereafter is that the Court comes to the conclusion that despite due diligence such matter could not have been raised by the parties concerned before the commencement of trial. Therefore the party seeking amendment, after commencement of trial, is bound to first plead and then prove that the amendment it has sought could not have been pleaded by it before commencement of trial despite its due diligence. After the trial has commenced, an amendment cannot be sought and allowed as a matter of course unless conditions of due diligence is found to have existed therein since it is prohibited by proviso to Order 6 Rule 17 C.P.C.
10. In Kailash v. Nanhku, AIR 2005 SC 2441, Court has held that a trial is deemed to have commenced when the issue are settled and the case is set down for recording of evidence. This view has been followed in Baldev Singh and others Vs. Manohar Singh and another (2006) 9 SCC 498 and Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji N. AIR 2007 SC 806. The Apex Court has also held in Ajendraprasadji N. Pande (supra) that Order 6 Rule 17 C.P.C. as amended by Amendment Act, 2002 does not permit an amendment, once Trial has commenced unless despite due diligence, matter could not be raised before the commencement of trial. Court held that provision is mandatory and precludes a party to seek amendment of his pleadings once trial has commenced unless requirement of proviso itself is satisfied. In taking this view, Court also referred to and relied on its earlier decision in Salem Advocate Bar Association Vs. Union of India AIR 2005 SC 3353.
11. To the same extent, is the view taken by this Court in Rajkumar Gurawara Vs. M/s. S. K. Sarwagi and Co. Pvt. Ltd. AIR 2008 SC 2303 and Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others 2009 (1) SCC 84. This Court has also followed the above exposition of law by referring to Revajeetu Builders and Developers (supra) in Sri Krishan Mittal Vs. Upper District Judge C.N. 10 Bijnor and others (Writ A No. 46709 of 2012) decided on 13.9.2012.
12. Revajeetu Builders and Developers (supra) is a decision in which various authorities on the question of amendment have been considered by Apex Court and in para 67 it has laid down certain illustrative factors which may be necessary to be examined while allowing or rejecting application for amendment. It would be useful to reproduce para 67 of the judgement as under:
"67. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala fide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case?
and, (Emphasis added)
(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."
13. In the present case, initially, suit for conjugal rights was filed and subsequently through amendment it was sought to be converted into a divorce petition whereby nature and character and relief of the case was fundamentally changed. We, therefore, find substance in arguments advanced by learned counsel for appellant that amendment was impermissible in law. Additional Principal Judge, Family Court/Additional District Judge, Court No.2, Aligarh has erred in law and impugned order is not sustainable.
14. Appeal is, accordingly, allowed. Impugned order dated 16.4.2019 passed by Additional Principal Judge, Family Court/Additional District Judge, Court No. 2, Aligarh in Marriage Petition No. 631 of 2016 is set aside.
15. Court below is directed to decide suit filed under Section Section 9 of the Hindu Marriage Act, 1955 expeditiously. However, this order shall not preclude respondent from availing other remedy in respect to section 13 of Act 1955 by initiating appropriate proceedings.
Order Date :- 26.9.2019 Ram Murti