Ashok K. Raizada vs Manjul Raizada

J.R. Midha, J.—The Petitioner has challenged the order dated 5th February, 2010 passed by the learned Additional District Judge whereby his application under Order 6 Rule 17 of the CPC has been dismissed on the ground that the trial has already commenced and with due diligence, the Petitioner could have raised this matter before the commencement of trial.

The learned Counsel for the Petitioner submits that the Petitioner discovered some documents mentioned in para 6 of the application under Order 6 Rule 17 of the CPC on 17th May, 2009 whereupon the application seeking amendment was filed.

The learned Counsel for the Respondent submits that the trial has already commenced. The cross-examination of the Respondent has concluded and the application has been filed by the Petitioner to fill up the lacunae. It is submitted that the proposed amendments are barred by the Proviso to Order 6 Rule 17 of the CPC as the trial has already commenced and with due diligence, the Petitioner could have raised the matter before the commencement of the trial.

The parties are living separately since 30th July, 2007 when the Petitioner forced the Respondent and her daughters to leave the house. The Petitioner has raised serious allegations attacking the character of the Respondent. It does not appear to be plausible that the Petitioner would not have cleaned/scanned the house for about two years after the Respondent left the matrimonial house on 30th July, 2007. However, even assuming the Petitioner''s contention to be true, it shows sheer lack of due diligence. In that view of the matter, the proposed amendment is clearly hit by the Proviso to Order 6 Rule 17 of the CPC and, therefore, the learned Trial Court has rightly rejected the Petitioner''s application for amendment of the written statement. The Petitioner''s application does not appear to be bona fide and has been filed with the intention to delay the trial which has already commenced.

The learned Counsel for the Petitioner has referred to and relied upon the judgments in the case of Davinder Singh Vs. Surjit Malhotra, ; Vidyabai v. Padmalatha JT 2009 (1) SC 303 ; Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, ; Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni and Others, ; Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) and Others, and North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., . However, the aforesaid judgments do not help the Petitioner in view of the clear finding of this Court that the application is not bona fide and with due diligence, the Petitioner could have raised the matter before the commencement of the trial.

There is no merit in the petition which is hereby dismissed.