SMT. R. ANUSHREE Vs. H.J. PAVAN KUMAR

JUDGEMENT

(1.) THE petitioner is before this Court assailing the order dated 30.07.2013 passed on I.A. No. 7 passed in M.C. No. 2141/2011 impugned at Annexure -'G' to the writ petition. The petitioner herein is the respondent in M.C. No. 2141/2011. In the said proceedings, wherein the respondent has initiated the petition under Section 13(i)(ia) of the Hindu Marriage Act, the petitioner herein had filed the objection statement. Pursuant to the same, the petitioner has already adduced evidence and the cross -examination is also completed. At a stage when it was posted for respondent's evidence, the petitioner herein had filed an application under Order VI Rule 17 of CPC seeking to amend her objection statement. The Court below has considered the same and dismissed the application. It is in that circumstance, the petitioner is before this Court.

(2.) HAVING heard the learned counsel for the parties, I have perused the order passed by the Court below. In so far as the principle of law relating to the amendment, keeping in view the changes made to the Civil Procedure Code, the Court below has also kept in view, the decision of the Hon'ble Supreme Court while considering as to whether the application is to be accepted or not. In that view, the Court below has also taken note of the situation that once the trial has commenced, if the amendment is to be allowed, due diligence of the party is to be established. Keeping the above aspect in view, a perusal of the amendment sought to be incorporated would indicate that certain factual aspects more particularly making allegations against the respondent herein is sought to be incorporated in the objection statement. Except seeking to justify that the same had not been taken up in the objection statement which was filed earlier and stating that the earlier Advocate had not done so, there is no reason to indicate the due diligence, more particularly, at a stage atleast before the respondent herein was cross -examined. In such circumstance, when the trial had commenced and based on the pleadings that were available, the respondent herein has tendered the evidence and also the learned counsel for the petitioner in the said light of contentions put forth has cross -examined the respondent before the Court below, the nature of the allegations which are sought to be put forth by way of the amended objection statement would certainly change the very nature of the defence that had been put forth earlier and at this stage, when no diligence is averred, the Court below having noticed the position of law and having arrived at the conclusion, this Court cannot find fault with the order passed by the Court below.