Smt. Krishna Thapliyal vs Achla Nand Chandola

U.C. Dhyani, J. (oral) - By means of present writ petition, the petitioner seeks writ in the nature of certiorari quashing the order dated 29.03.2016, passed by Principal Judge, Family Court, Dehradun in O.S. no. 43 of 2015, Achla Nand Chandola v. Smt. Krishna Chandola, whereby the amendment application Paper no. 33A filed by petitioner under Order 6, Rule 17 read with Section 151 CPC, seeking amendment in her written statement, was dismissed.

A suit under Section 9 of the Hindu Marriage Act was filed by the plaintiff (respondent herein) against defendant (petitioner herein) in the court of Principal Judge, Family Court, Dehradun. It is the submission of learned counsel for the petitioner that trial has not commenced. Learned counsel for the respondent, on the other hand, submitted that trial has commenced, inasmuch as the issues were framed and examination-in-chief in the form of affidavit has been filed. This Court was taken through the amendments sought to be incorporated by the defendant (petitioner) in her written statement. This Court is of the opinion that if those amendments are permitted to be incorporated in the written statement, the same will not change the nature of the suit.

A perusal of application under Order 6, Rule 17 CPC read with Section 151 CPC will indicate that, by way of amendment, the defendant/petitioner wanted to plead that the suit under Section 9 of the Hindu Marriage Act was not maintainable before the court seized with the matter. By way of amendment, the defendant/petitioner also wanted to plead that Family Court has no jurisdiction to try the suit. By incorporating certain other paragraphs in the written statement, the defendant wanted to plead the facts of intimidation etc. by the plaintiff/respondent, as also denial of claim.

If the aforesaid amendments are sought to be incorporated in the written statement, the same hardly makes any difference in so far as the nature of suit is concerned. These paragraphs are simply explanatory, besides introduction of certain new pleas regarding ouster of jurisdiction of the court and non-maintainability of the suit.

It will be worthwhile to quote a decision rendered by Hon�ble Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & sons and others, 2010 (1) Civil Court Cases 001 (S.C.), wherein in the operative portion of the judgment, the following was observed:

"Factors to be taken into consideration while dealing with applications for amendments:

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

(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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive.

The decision on an application made under Order 6, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

The court below has failed to appreciate the controversy in the correct perspective of Order 6, Rule 17 CPC and, therefore, the impugned order is liable to be set aside.

Yes, there is yet another aspect of the matter. Before the amendment of any party is permitted to be incorporated, the party concerned is required to pass the test of Proviso to Order 6, Rule 17 CPC, which says as under:

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes of the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is true that these facts were within the knowledge of the defendant/petitioner and she could very well have pleaded these facts at the time of filing of plaint. The only question which is left for determination of this Court is whether the trial has commenced or not?

Whereas learned counsel for the petitioner submitted that the trial had not commenced, it is the submission of learned counsel for the respondent that the trial had commenced when the defendant/petitioner moved an application under Order 6, Rule 17 CPC. In the absence of any material on record, this Court is unable to decipher as to whether the trial has commenced when the application under Order 6, Rule 17 CPC was moved or not. Further, this Court does not want to keep the writ petition pending and for the purpose of ascertaining the aforesaid question. This Court, therefore, leaves this question open for the trial court to decide whether the trial had commenced when the application under Order 6, Rule 17 was filed by the defendant or not?

Writ petition is, accordingly, disposed of with the following observations:

i) If the trial had commenced at the time of moving application under Order 6, Rule 17 CPC by the defendant/petitioner, the impugned order shall stand as it is. Then, no interference is called for in the same because this Court is of the view that the party could have raised the matter before the commencement of trial.

ii) If the trial had not commenced when the defendant/petitioner has moved for amendment then, according to this Court, the nature of the suit does not change by seeking the amendment in the plaint and therefore, interference is called for in the impugned order and the same shall, accordingly, be set aside.

[Stay application no. 4687 of 2016 also stands disposed of.]