Gurmukh Singh vs Gursharan Kaur

L.N. Mittal, J.

CM. No. 27394-C-II of 2012:

Allowed as prayed for.

Main Case:

Defendant husband Gurmukh Singh, aggrieved by order dated 27.08.2012 (Annexure P-7), passed by the trial court, has approached this Court by way of instant revision petition under Article 227 of the Constitution of India to challenge the said order, whereby application (Annexure P-6), moved by defendant-petitioner for amendment of written statement (Annexure P-2) has been dismissed. Respondent-plaintiff Gursharan Kaur has filed suit against her husband defendant-petitioner inter alia for maintenance including arrears of maintenance.

The defendant, by way of amendment, want to add the pleas detailed in pages 45 to 47 of the paper-book in amendment application (Annexure P-6).

Learned trial court has dismissed the amendment application moved by the defendant, who has, therefore, filed this revision petition.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that commencement of trial referred to in proviso to Order 6 Rule 17 of the CPC (in short-CPC) would mean final hearing of the suit, as observed by Hon''ble Supreme Court in the case of Sushil Kumar Jain Vs. Manoj Kumar and Another, and therefore, in the instant case, trial had not commenced when amendment application was moved because evidence had not yet been recorded, although plaintiff had availed of one opportunity for her evidence, and therefore, amendment application could not be declined on the ground of having been moved after commencement of trial. It was also submitted that the trial court, in order Annexure P-5, relating to interim maintenance, observed that the defendant has not pleaded any other responsibility on his shoulders, thereby necessitating the amendment application to plead other responsibility of the defendant.

I have carefully considered the aforesaid contentions, but the same are completely meritless.

Counsel for the petitioner stated that issues have already been framed in the suit and plaintiff has already availed of one opportunity for her evidence, although no evidence has yet been led. The trial has, therefore, commenced. Judgment in the case of Sushil Kumar Jain (supra) does not lay down that the trial would commence only at the final hearing. To accept such a proposition would result in great absurdity because when final arguments commence, the question of seeking amendment of pleadings would seldom arise and rather trial would come to an end instead of the commencement of trial. On the contrary, the Hon''ble Supreme Court held that commencement of trial would mean final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. It has not been laid down that only stage of final arguments would be stage of commencement of trial. Rather that would be the stage of end of trial and not commencement of trial.

In view of Order 6 Rule 17 CPC, amendment of pleadings cannot be allowed after commencement of trial, unless the party seeking amendment could not raise the matter before commencement of trial in spite of due diligence. In the instant case, defendant has pleaded that he had appointed his father as Attorney, but his father being aged 85 years, could not properly brief the counsel. Amendment of written statement cannot be allowed on this plea. If defendant''s father was old enough so as not to comprehend the case of the defendant and brief the counsel properly, the defendant would not have appointed his father as Attorney to defend his case. The very purpose of appointing the father as Attorney is defeated if the aforesaid plea is accepted. On the contrary, this plea in the amendment application is negatived by contention of counsel for the petitioner that amendment has been necessitated by observation of the trial court in order Annexure P-5 that the defendant has not pleaded any other responsibility on his shoulders. It is thus manifest that the defendant himself did not plead the facts in the original written statement, which are now sought to be pleaded by amendment of written statement. The defendant, by amendment of written statement, wants to completely overhaul the same by pleading large number of facts, mentioned in three pages of the amendment of application. The said wholesale amendment cannot be allowed after commencement of trial. For the reasons aforesaid, I find no merit in the instant revision petition. Impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. Accordingly, the revision petition is dismissed in limine.