Case Note & Summary
The petitioner, Sou. Chabutai Ulhas Rumale, filed a writ petition challenging the order dated 11.2.2015 passed by the Family Court, Kolhapur in Petition No. A.94 of 2013, which rejected her application (Exh.44) seeking amendment to her written statement. The petitioner sought to elaborate on facts already stated in the written statement, claiming no new facts were introduced. The respondent, Ulhas Madhav Rumale, was served but did not appear. The petitioner's counsel argued that the trial court should have allowed the amendment as the approach must be liberal, relying on the Supreme Court judgment in Ram Niranjan Kajaria v. Sheo Prakash Kajaria (2015) 10 SCC 203, which held that delay alone may not be crucial for amendment applications. However, the High Court noted that Order VI Rule 17 CPC was amended by the CPC (Amendment) Act, 2002, inserting a proviso that no application for amendment shall be allowed after the trial has commenced unless the court concludes that despite due diligence, the party could not have raised the matter before trial. Since the petitioner failed to offer any explanation for not seeking the amendment earlier with due diligence, the Family Court's rejection was justified. The High Court dismissed the writ petition, upholding the impugned order.
Headnote
A) Civil Procedure - Amendment of Pleadings - Order VI Rule 17 CPC - Due Diligence - The petitioner sought amendment to her written statement after trial had commenced. The Family Court rejected the application as no explanation was offered for not seeking the amendment earlier with due diligence. The High Court upheld the rejection, holding that the proviso to Order VI Rule 17 CPC prohibits allowing amendment after trial has commenced unless the party shows that despite due diligence, the matter could not have been raised before trial. (Paras 7-9)
B) Civil Procedure - Amendment of Pleadings - Liberal Approach - The petitioner argued that the court should adopt a liberal approach in allowing amendments. However, the High Court held that the liberal approach is not applicable after the commencement of trial, as the proviso to Order VI Rule 17 CPC imposes a specific restriction. (Paras 7-9)
Issue of Consideration
Whether the Family Court was justified in rejecting the petitioner's application for amendment of written statement after commencement of trial, in the absence of explanation for not raising the matter earlier with due diligence.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Family Court rejecting the amendment application. No order as to costs.
Law Points
- Amendment after commencement of trial requires showing due diligence
- Liberal approach not applicable after trial starts
- Order VI Rule 17 CPC proviso
Case Details
2017 LawText (BOM) (10) 111
Writ Petition No.12069 of 2015
Dr. Shalini Phansalkar-Joshi, J.
Mr. Mandar Limary a/w Ms. Gauri Velankar for the Petitioner; None for the Respondent
Sou. Chabutai Ulhas Rumale
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Nature of Litigation
Writ petition challenging order of Family Court rejecting amendment application in a matrimonial dispute.
Remedy Sought
Petitioner sought to set aside the order dated 11.2.2015 of Family Court, Kolhapur rejecting her application for amendment of written statement.
Filing Reason
The Family Court rejected the amendment application on the ground that no explanation was offered for not seeking the amendment earlier with due diligence.
Previous Decisions
Family Court, Kolhapur in Petition No. A.94 of 2013 rejected petitioner's application at Exh.44 seeking amendment to written statement.
Issues
Whether the Family Court was justified in rejecting the amendment application after commencement of trial in the absence of due diligence explanation.
Whether the liberal approach in allowing amendments applies after trial has commenced under Order VI Rule 17 CPC.
Submissions/Arguments
Petitioner argued that the proposed amendment was only by way of elaboration of facts already stated, not introducing new facts, and the court should adopt a liberal approach.
Petitioner relied on Ram Niranjan Kajaria v. Sheo Prakash Kajaria (2015) 10 SCC 203 to contend that delay alone is not crucial for amendment applications.
Respondent did not appear.
Ratio Decidendi
Under Order VI Rule 17 CPC, after the commencement of trial, an amendment application cannot be allowed unless the party shows that despite due diligence, the matter could not have been raised before trial. The liberal approach does not apply after trial has commenced.
Judgment Excerpts
the provisions of Order VI Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. By way of amendment, the new proviso is inserted and as per the Proviso, no application for amendment shall be allowed after the trial has commenced, unless Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
Therefore, for exercise of power of allowing amendment after the commencement of trial, the Court has to be satisfied about the due diligence of the party.
Procedural History
The petitioner filed Petition No. A.94 of 2013 before the Family Court, Kolhapur. During the proceedings, she filed an application at Exh.44 seeking amendment to her written statement. The Family Court rejected the application on 11.2.2015. The petitioner then filed the present writ petition in the High Court of Bombay challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order VI Rule 17
