# Chitranshi v. Rajnarayan

- **Citation:** (2025) 9 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-22
- **Case number:** Matters Under Article 227 No. 1261 of 2023
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chitranshi-v-rajnarayan-50986
- **Pages:** 13

## Headnote

868 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
A) Whether after framing
of issues an
amendment application cannot be allowed as
the same will be hit by proviso to Rule 17 of
Order VI of C.P.C?

B)
Whether
by
way
of
the
proposed
amendment, the plaintiff-respondent has tried
to change the cause of action for filing divorce
petition by adding averments?

Head Notes
The Hindu Marriage Act,1955-Section
13, The Code of Civil Procedure-1908-
Order VI Rule 17, Order XIV Rule 1,
Order XVIII Rule 1 & 2- If some facts
have come to the knowledge of the party
to
the
suit
subsequent
to
the
commencement of trial, may be during
the course of trial and if it is found that
it is necessary for the purpose of
determining
the
real
questions
in
controversy between the parties, on a
fair reading of Order VI Rule 17 CPC,
such an application for amendment can
be allowed even after the trial has
commenced-Petition dismissed.

Held -(A) That amendment application for
amendment in pleading can be allowed after
commencement of the trial, if the court comes
to the conclusion that in spite of due diligence
the party could not have raised the matter
before commencement of the trial.
B) There is no impediment in taking that ground
by moving an application for amendment in the
petition.(E-15)
(Para 16 to 18)

Case Law Cited
Raj Kumar Gurawara Vs. S.K. Sarwagi and
Company Private Limited and another (2008) 14
SCC 364; Nitaben Dinesh Patel Vs. Dinesh
Dayabhai Patel; (2021) 20 SCC 210; Mohinder
Kumar Mehra Vs. Roop Rani Mehra and others
reported in (2018) 2 SCC 132

List of Acts
The Hindu Marriage Act-1955, The Code of Civil
Procedure-1908,

List of Keywords
Amendment
Divorce
petition,
Amendment
application after framing of issues, Order VI
Rule 17, Section 13 Hindu Marriage Act.

Case Arising From
Order dated 12.12.2022 passed by Principal
Judge, Family court, Hamirpur allowing an
application for amendment moved by the
plaintiff-respondent under Order VI Rule 17 of
C.P.C. in Marriage Petition No. 291 of 2020
(Rajnarayan Tripathi Vs. Chitranshi).

Appearances for Parties
Counsel for Petitioner(s) : Ram Bihari Mishra,
Vikas Upadhyay
Counsel for Respondent(s) : Abu Sufiyan Azmi

## Text

_Characters 0–39,850 of 42,431. This is a partial read: ask again with offset=39850 for what follows._

9 All. Chitranshi vs. Rajnarayan
867
questions that arise for our consideration
are: (1) whether the notice dated 29th
September, 1962, issued under section 148
suffers from the vice of vagueness; and (2)
whether
the
sald
notice
can,
after
subsequently removing the vagueness, be
relied upon for sustaining an assessment
under s. 147 of the I. T. Act."

35. In the present case, it is undisputed
that notice was sent by speed post without
any acknowledgement rather than through
registered post which is a fundamental
requirement for service of notice upon the
addressee personally. Consequently, the
presumption of service u/s 27 of the Act,
1897 read with Section 114(f) of the Act,
1872 cannot be invoked in relation to the
notice sent by speed post even if the
envelope containing the notice u/s 148 of
the Act, 1961 was not returned back.
Additionally, the learned Tribunal recorded
finding that envelope having the notice so
returned is not readily traceable, without
verifying from other documents that the
envelope was actually available on record
or not, during the assessment and first
appellate proceeding, though there was
specific finding of assessing and appellate
authorities in that envelope sent through
speed post to the assessee containing notice
was returned back. Therefore, this court
decides the substantial question no.1 in
favour of the appellant and concludes that
there was no service of notice u/s 148 of
the Act, 1961 through post upon the
assessee (appellant).

36. Regarding the substantial question
no.2 about the failure to affix the notice at
the last known address of the assessee
(appellant) especially when he was not
traceable at that address, it is relevant to
mention that service through Income Tax
Officer was attempted by the assessing
officer in accordance with Part II of Section
282(i) of the Act, 1961. This is aligned
with the Order V Rule 17 of Code of Civil
Procedure, which requires affixation of
notice when personal service is not
possible. In the present case, it is not in
dispute that Income Tax Officer did not
affix notice at the assessee's address despite
the fact that assessee was not traceable
there. Therefore, service of notice through
personal service as specified by Order V
Rule 17 of CPC and Part II of Section
282(i) of the Act, 1961 was not validly
made. Therefore, substantial question no.2
is also decided in favour of the appellant by
observing the service of notice through the
Income Tax Inspector was also not made
upon the appellant by affixing the same on
the address of the assessee in absence of
personal service upon the assessee.

37. In view of the above, present
appeal is allowed and the order dated
16.11.2011
passed
by
Income
Tax
Appellate Tribunal, Agra Bench, Agra for
the A.Y. 2002-03 is hereby set-aside.
----------
(2025) 9 ILRA 867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.09.2023

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 1261 of 2023

Chitranshi ...Petitioner
Versus
Rajnarayan ...Respondent

Counsel for the Petitioner:
Ram Bihari Mishra, Vikas Upadhyay

Counsel for the Respondent:
Abu Sufiyan Azmi
868 INDIAN LAW REPORTS ALLAHABAD SERIES
Issue for Consideration
A) Whether after framing
of issues an
amendment application cannot be allowed as
the same will be hit by proviso to Rule 17 of
Order VI of C.P.C?

B)
Whether
by
way
of
the
proposed
amendment, the plaintiff-respondent has tried
to change the cause of action for filing divorce
petition by adding averments?

Head Notes
The Hindu Marriage Act,1955-Section
13, The Code of Civil Procedure-1908-
Order VI Rule 17, Order XIV Rule 1,
Order XVIII Rule 1 & 2- If some facts
have come to the knowledge of the party
to
the
suit
subsequent
to
the
commencement of trial, may be during
the course of trial and if it is found that
it is necessary for the purpose of
determining
the
real
questions
in
controversy between the parties, on a
fair reading of Order VI Rule 17 CPC,
such an application for amendment can
be allowed even after the trial has
commenced-Petition dismissed.

Held -(A) That amendment application for
amendment in pleading can be allowed after
commencement of the trial, if the court comes
to the conclusion that in spite of due diligence
the party could not have raised the matter
before commencement of the trial.
B) There is no impediment in taking that ground
by moving an application for amendment in the
petition.(E-15)
(Para 16 to 18)

Case Law Cited
Raj Kumar Gurawara Vs. S.K. Sarwagi and
Company Private Limited and another (2008) 14
SCC 364; Nitaben Dinesh Patel Vs. Dinesh
Dayabhai Patel; (2021) 20 SCC 210; Mohinder
Kumar Mehra Vs. Roop Rani Mehra and others
reported in (2018) 2 SCC 132

List of Acts
The Hindu Marriage Act-1955, The Code of Civil
Procedure-1908,

List of Keywords
Amendment
Divorce
petition,
Amendment
application after framing of issues, Order VI
Rule 17, Section 13 Hindu Marriage Act.

Case Arising From
Order dated 12.12.2022 passed by Principal
Judge, Family court, Hamirpur allowing an
application for amendment moved by the
plaintiff-respondent under Order VI Rule 17 of
C.P.C. in Marriage Petition No. 291 of 2020
(Rajnarayan Tripathi Vs. Chitranshi).

Appearances for Parties
Counsel for Petitioner(s) : Ram Bihari Mishra,
Vikas Upadhyay
Counsel for Respondent(s) : Abu Sufiyan Azmi

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This petition has been filed
challenging the order dated 12.12.2022
passed by Principal Judge, Family court,
Hamirpur allowing an application for
amendment
moved
by
the
plaintiffrespondent under Order VI Rule 17 of
C.P.C. in Marriage Petition No. 291 of
2020 (Rajnarayan Tripathi Vs. Chitranshi).

2. Brief facts of the case are that
plaintiff-respondent filed a petition under
Section 13 of the Hindu Marriage Act,
1955 for relief of divorce on the grounds
stated in the petition. The defendantpetitioner filed written statement denying
the averments made by the plaintiffrespondent in the petition for divorce. On
27.07.2022, following issues were framed
by the Principal Judge (Family Court),
Hamirpur:-

 "मदनांक 27.07.2020 पुकारा गया। उभयपक्ष
अपने-अपनेअमधविागण के साथ उपमटथत आये। पत्रावली का
अवलोकन मकया। पत्रावली वाटतेवाद मबन्दु मवरमचत मकयेजानेहतुेे
मनयत ह।ेै उभयपक्ष के अमधविागण को वाद मबन्दु मवरमचत
मकयेजानेकेसन्दभटमेंसुना गया। तत्पश्चात मनम्नमलमखत वाद मबन्दु
मवरमचत मकये गये- 1. क्या वादी राजनारायण मत्रपाठी वादपत्र
9 All. Chitranshi vs. Rajnarayan
869
मेवमणटत अमभकथनों केआधार पर मवपक्षी श्रीमती मचत्रांशी केमवरूद्ध
मववाह मवच्छेद (तलाक) की मडिी प्राप्त करने योग्य ह?ेै
Versus Counsel for Petitioner(s) : Ram
Bihari Mishra, Vikas Upadhyay Counsel
for Respondent(s) : Abu Sufiyan Azmi
Chitranshi
.....Petitioner(s)
Rajnarayan
Tripathi .....Respondent(s) 2. वादी यमद ह,ेै तो
मकसी अनुतोि को पानेकी अमधकारी ह?ेै अन्य कोई वाद मबन्दु
मवरमचत नहीं होता हैऔर न ही अन्य मकसी वाद मबन्दु को
बनानेहतुेे उभयपक्ष के अमधविागण द्वारा बल मदया गया। अतैः
पत्रावली वाटते साक्ष्य हतु ेे मदनांक 1.8.22 को पेश हो।"

3. Thereafter on 13.10.2022, the
plaintiff-respondent filed an application
under Order VI Rule 17 of C.P.C. seeking
amendment in paragraph No. 7, 11 and 14
of the plaint, which was opposed by the
defendant-petitioner. The Principal Judge
(Family Court) Hamirpur by order dated
12.12.2022
allowed
the
amendment
application on payment of cost of Rs. 800/-.
Hence the present petition.

4. Contention of learned counsel
for the petitioner is that the amendment
application was filed by the plaintiffrespondent under Order VI Rule 17 of
C.P.C. after framing of issues. According
to learned counsel for the petitioner, in
view of proviso to Rule 17 of Order VI of
C.P.C., the amendment application cannot
be filed after the commencement of the
trial, unless, the court comes to the
conclusion that in spite of due diligence the
party could not have raised the matter
before
the
commencement
of
trial.
According to the petitioner, since in view
of provisions of Section 10 of the Family
Court Act, 1984 read with Section 21 of the
Hindu Marriage Act, 1955, procedure as
prescribed in C.P.C. is applicable to the
proceedings under the Hindu Marriage Act,
1955. It has been further contended by learned
counsel for the petitioner that initially the
divorce petition was filed on the ground of
desertion and cruelty. By the proposed
amendment, the plaintiff-respondent has tried to
change the cause of action for filing divorce
petition by adding averments that petitioner is
moving around with her colleague Umakant
Namdev and her behaviour with her colleague
is immoral and shows that relationship between
the petitioner and her colleague is very close,
which cannot be said to be friendly relationship
and the plaintiff-respondent is aggrieved by the
actions of the petitioner. Other facts were also
tried to be added by the plaintiff-respondent.

5. It is further contended by learned
counsel for the petitioner that once a marriage
petition is filed on the basis of one of the
grounds mentioned under Section 13 of the
Hindu Marriage Act, 1955, by amendment
cause of action cannot be changed by adding
other grounds given under Section 13 of the
Hindu Marriage Act, 1955 for divorce.

6. Per contra, learned counsel for the
plaintiff-respondent has submitted that the
amendment application was filed immediately
after the settlement of issues. Neither of the
parties has led evidence after settlement of the
issues and therefore, it cannot be said that the
hearing of the case has commenced and thus,
the proviso to Rule 17 of Order VI will not
apply in the present case and the court below
has rightly allowed the application filed by the
plaintiff-respondent. It has also been contended
by learned counsel for the respondent that by
the proposed amendment no fresh ground i.e.
cause of action is being introduced by the
plaintiff-respondent and by the proposed
amendment, the respondent wanted to bring on
record certain facts which came in existence
after filing of the divorce petition.

7. Before considering the rival
submissions of learned counsel for the
parties, it would be appropriate to consider
870 INDIAN LAW REPORTS ALLAHABAD SERIES
the relevant statutory provisions in this
regard. Section 13 of the Hindu Marriage
Act, 1955 is quoted as under:-

 "Divorce
-(1)
Any
marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the husband or
the wife, be dissolved by a decree of
divorce on the ground that the other party-

 [(i) has, after the solemnization of
the
marriage,
had
voluntary
sexual
intercourse with any person other than his
or her spouse; or

 (ia) has, after the solemnization
of the marriage, treated the petitioner with
cruelty; or

 (ib) has deserted the petitioner
for a continuous period of not less than two
years
immediately
preceding
the
presentation of the petition; or]

 (ii) has ceased to be a Hindu by
conversion to another religion; or

 [(iii) has been incurably of
unsound mind, or has been suffering
continuously
or
intermittently
from
mental disorder of such a kind and to
such an extent that the petitioner cannot
reasonably be expected to live with the
respondent.

 Explanation.--In this clause,--

 (a)
the
expression
mental
disorder means mental illness, arrested or
incomplete
development
of
mind,
psychopathic
disorder
or
any
other
disorder or disability of mind and includes
schizophrenia;
 (b) the expression psychopathic
disorder means a persistent disorder or
disability of mind (whether or not including
subnormality of intelligence) which results
in abnormally aggressive or seriously
irresponsible conduct on the part of the
other party, and whether or not it requires
or is susceptible to medical treatment; or]

 (iv)(****)

 (v) has (* * *) been suffering
from venereal disease in a communicable
form; or

 (vi) has renounced the world by
entering any religious order; or

 (vii) has not been heard of as
being alive for a period of seven years or
more by those persons who would naturally
have heard of it, had that party been alive;
(***)

 [Explanation--In this sub-section,
the
expression
desertion
means
the
desertion of the petitioner by the other
party to the marriage without reasonable
cause and without the consent or against
the wish of such party, and includes the
wilful neglect of the petitioner by the other
party to the marriage, and its grammatical
variations and cognate expressions shall be
construed accordingly.]

 [(1A) Either party to a marriage,
whether solemnized before or after the
commencement of this Act, may also
present a petition for the dissolution of the
marriage by a decree of divorce on the
ground:

 (i) that there has been no
resumption of cohabitation as between the
parties to the marriage for a period of [one
9 All. Chitranshi vs. Rajnarayan
871
year] or upwards after the passing of a
decree for judicial separation in a
proceeding to which they were parties; or

 (ii) that there has been no
restitution of conjugal rights as between
the parties to the marriage for a period of
[one year] or upwards after the passing of
a decree for restitution of conjugal rights in
a proceeding to which they were parties.]

 (2) A wife may also present a
petition for the dissolution of her marriage
by a decree of divorce on the ground,--

 (i) in the case of any marriage
solemnized before the commencement of
this Act, that the husband had married
again before such commencement or that
any other wife of the husband married
before such commencement was alive at the
time of the solemnization of the marriage of
the petitioner:

 Provided that in either case the
other wife is alive at the time of the
presentation of the petition; or

 (ii) that the husband has, since
the solemnization of the marriage, been
guilty of rape, sodomy or [bestiality; or]

 [(iii) that in a suit under
section 18 of the Hindu Adoptions and
Maintenance Act, 1956 (78 of 1956), or
in a proceeding under section 125 of
the Code of Criminal Procedure, 1973
(2 of 1974) (or under the corresponding
section 488 of the Code of Criminal
Procedure, 1898 (5 of 1898), a decree
or order, as the case may be, has been
passed against the husband awarding
maintenance
to
the
wife
notwithstanding that she was living
apart and that since the passing of such
decree or order, cohabitation between
the parties has not been resumed for
one year or upwards;

 (iv) that her marriage (whether
consummated or not) was solemnized
before she attained the age of fifteen years
and she has repudiated the marriage after
attaining that age but before attaining the
age of eighteen years.

 Explanation.This clause applies
whether the marriage was solemnized
before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68
of 1976).]"

8. Rule 17 of Order VI of C.P.C.
provides for amendment in the pleadings
and the same is quoted as under:

 "17. Amendment of pleadings.?The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings in such manner and on such terms
as may be just, and all such amendments
shall be made as may be necessary for the
purpose of determining the real questions in
controversy between the parties:

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

9. Order XIV of the C.P.C.
provides for settlement of issues and
determination of suit on issues of law or on
issue agreed upon. Order XIV Rule 1 of
C.P.C. is quoted as under.

 "1. Framing of issues.?(1) Issues
arise when a material proposition of fact or
872 INDIAN LAW REPORTS ALLAHABAD SERIES
law is affirmed by the one party and denied
by the other.

 (2) Material propositions are
those propositions of law or fact which a
plaintiff must allege in order to show a
right to sue or a defendant must allege in
order to constitute his defence.

 (3) Each material proposition
affirmed by one party and denied by the
other shall form the subject of a distinct
issue.

 (4) Issues are of two kinds:

 (a) issues of fact,

 (b) issues of law.

 (5) At the first hearing of the suit
the Court shall, after reading the plaint and
the written statements if any, and [after
examination under rule 2 of Order X and
after hearing the parties or their pleaders],
ascertain upon what material propositions
of fact or of law the parties are at variance,
and shall thereupon proceed to frame and
record the issues on which the right
decision of the case appears to depend.

 (6) Nothing is this rule requires
the Court to frame and record issues where
the defendant at the first hearing of the suit
makes no defence."

10. Order XVIII of C.P.C. provides
for hearing of the suits and examination of
evidence. Rule 1 of Order XVIII provides
that plaintiff has the right to begin unless
the defendant admits the facts alleged by
the plaintiff and contends that either in
point of law or on some additional facts
alleged by the defendant the plaintiff is not
entitled to any part of the relief which he
seeks, in which case the defendant has the
right to begin. Rule 2 of Order XVIII of
C.P.C.
provides
for
settlement
and
production of evidence. Rules 1 and 2 of
Order XVIII of C.P.C. are quoted as
under:-

 "1. Right to begin.?The plaintiff
has the right to begin unless the
defendant admits the facts alleged by the
plaintiff and contents that either in point
of law or on some additional facts
alleged by the defendant the plaintiff is
not entitled to any part of the relief which
he seeks, in which case the defendant has
the right to begin.

 2. Statement and production of
evidence.?(1) On the day fixed for the
hearing of the suit or on any other day to
which the hearing is adjourned, the party
having the right to begin shall state his
case and produce his evidence in support of
the issues which he is bound to prove.

 (2) The other party shall then
state his case and produce his evidence (if
any) and may then address the Court
generally on the whole case.

 (3) The party beginning may then
reply generally on the whole case.

 [(3A) Any party may address oral
arguments in a case, and shall, before he
concludes the oral arguments, if any,
submit if the Court so permits concisely
and
under
distinct
headings
written
arguments in support of his case to the
Court and such written arguments shall
form part of the record.

 (3B) A copy of such written
arguments
shall
be
simultaneously
furnished to the opposite party.
9 All. Chitranshi vs. Rajnarayan
873
 (3C) No adjournment shall be
granted for the purpose of filing the written
arguments unless the

 Court, for reasons to be recorded
in writing, considers it necessary to grant
such adjourment.

 (3D) The Court shall fix such
time-limits for the oral arguments by either
of the parties in a case, as it thinks fit.]

 (4) [***]

11.
Learned
counsel
for
the
petitioner in this regard relied upon
judgment of the Hon'ble Supreme Court in
case of Raj Kumar Gurawara Vs. S.K.
Sarwagi and Company Private Limited
and another reported in (2008) 14 SCC
364 and Nitaben Dinesh Patel Vs. Dinesh
Dayabhai Patel; (2021) 20 SCC 210 .

12. So far as submission of learned
counsel for the petitioner that after framing
of issues an amendment application cannot
be allowed as the same will be hit by
proviso to Rule 17 of Order VI of C.P.C. is
concerned, is not an absolute proposition of
law for the reason that amendment
application for amendment in pleading can
be allowed after commencement of the
trial, if the court comes to the conclusion
that in spite of due diligence the party
could not have raised the matter before
commencement of the trial. There can also
be a situation where the facts affecting the
parties came in existence after the filing of
the suit or even after the settlement of the
issues, then the said facts can be brought by
way of amendment in order to do complete
justice between the parties. Further in case,
any relief is added or any cause of action is
added for which the plaintiff is entitled to
bring a fresh suit, there is no impediment in
allowing the amendment adding that cause
of action or the relief, in order to avoid the
multiplicity
of
proceedings.
Merely
framing of issue cannot be said to be
commencement of trial. The Hon'ble
Supreme Court in case of Mohinder
Kumar Mehra Vs. Roop Rani Mehra
and others reported in (2018) 2 SCC 132
in paragraph Nos. 13 to 24 has held as
under:-

 "13. Order VI Rule 17 of C.P.C.
as it now exists is as follows:-

 "17. Amendment of Pleadings.-
The Court may at any stage of the
proceedings allow either party to alter or
amend his pleadings in such manner and
on such terms as may be just, and all such
amendments shall be made as may be
necessary for the purpose of determining
the real questions in controversy between
the parties:

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

 14. By Amendment Act 46 of 1999
with a view to shortage litigation and speed
of the trial of the civil suits, Rule 17 of
Order VI was omitted, which provision was
restored by Amendment Act 22 of 2002 with
a rider in the shape of the proviso limiting
the power of amendment to a considerable
extent. The object of newly inserted Rule 17
is to control filing of application for
amending the pleading subsequent to
commencement of trial. Not permitting
amendment subsequent to commencement
of the trial is with the object that when
874 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence is led on pleadings in a case, no
new case be allowed to set up by
amendments.
The
proviso,
however,
contains an exception by reserving right of
the Court to grant amendment even after
commencement of the trial, when it is
shown that in spite of diligence, the said
pleas could not be taken earlier. The object
for adding proviso is to curtail delay and
expedite adjudication of the cases.

 15. This Court in Salem Advocate
Bar Association, T.N. Vs. Union of India,
(2005) 6 SCC 344 has noted the object of
Rule 17 in Para 26 which is to the
following effect:

 "26. Order 6 Rule 17 of the Code
deals with amendment of pleadings. By
Amendment Act 46 of 1999, this provision
was deleted. It has again been restored by
Amendment Act 22 of 2002 but with an
added proviso to prevent application for
amendment being allowed after the trial
has commenced, unless the court comes to
the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial. The proviso, to some extent, curtails
absolute discretion to allow amendment at
any stage. Now, if application is filed after
commencement of trial, it has to be shown
that in spite of due diligence, such
amendment could not have been sought
earlier. The object is to prevent frivolous
applications which are filed to delay the
trial. There is no illegality in the
provision."

 16. The judgment on which much
reliance has been placed by learned
counsel for the appellant is Rajesh Kumar
Aggarwal & Ors. Vs. K.K. Modi & Ors:
(2006) 4 SCC 385. This Court had
occasion to consider and interpret Order
VI Rule 17 in Paragraphs 15 and 16, in
which following has been held:-

 "15. The object of the rule is that
the courts should try the merits of the case
that come before them and should,
consequently, allow all amendments that
may be necessary for determining the real
question in controversy between the parties
provided it does not cause injustice or
prejudice to the other side.

 16. Order 6 Rule 17 consists of
two parts. Whereas the first part is
discretionary (may) and leaves it to the
court to order amendment of pleading. The
second part is imperative (shall) and
enjoins the court to allow all amendments
which are necessary for the purpose of
determining
the
real
question
in
controversy between the parties."

 17. Although Order VI Rule 17
permits amendment in the pleadings "at
any stage of the proceedings", but a
limitation has been engrafted by means of
Proviso to the effect that no application for
amendment shall be allowed after the trial
is commenced. Reserving the Court's
jurisdiction to order for permitting the
party to amend pleading on being satisfied
that in spite of due diligence the parties
could not have raised the matter before the
commencement of trial. In a suit when trial
commences? Order XVIII of the C.P.C.
deal with "Hearing of the Suit and
Examination of Witnesses". Issues are
framed under Order XIV. At the first
hearing of the suit, the Court after reading
the plaint and written statement and after
examination under Rule 1 of Order XIV is
to frame issues. Order XV deals with
"Disposal of the Suit at the first hearing",
when it appears that the parties are not in
issue of any question of law or a fact. After
9 All. Chitranshi vs. Rajnarayan
875
issues are framed and case is fixed for
hearing and the party having right to begin
is to produce his evidence, the trial of suit
commences.

 18. This Court in Vidyabai &
Ors. Vs. Padmalatha & Anr., (2009) 2 SCC
409 held that filing of an affidavit in lieu of
examination-in-chief
of
the
witnesses
amounts to commencement of proceedings.
In Paragraph 11 of the judgment, following
has been held:-

 "11. From the order passed by
the learned trial Judge, it is evident that the
respondents had not been able to fulfill the
said precondition. The question, therefore,
which arises for consideration is as to
whether the trial had commenced or not. In
our opinion, it did. The date on which the
issues are framed is the date of first
hearing. Provisions of the Code of Civil
Procedure envisage taking of various steps
at different stages of the proceeding. Filing
of an affidavit in lieu of examination-inchief of the witness, in our opinion, would
amount
to
"commencement
of
proceeding"."

 19. Coming to the facts of the
present case, it is clear from the record that
issues were framed on 17.05.2010 and case
was fixed for recording of evidence of
plaintiff on 10.08.2010. The plaintiff did not
produce the evidence and took adjournment
and in the meantime filed an application
under Order VI Rule 16 or 17 on 17.01.2011.
Thereafter the Court on 26.07.2011 has
granted four week's time as the last
opportunity to file the examination-in-chief. It
is useful to quote Paragraph 4 of the Order,
which is to the following effect:-

 "4. In view of the above, it is
directed as follows:-
 (i) Having regard to the delay
which has ensued, subject to the plaintiff
paying costs of Rs.5,000/- each to the
contesting defendant No.1 and 5 within a
period of one week, the plaintiff is
permitted four weeks time as a last
opportunity to file the examination-in-chief
of his witnesses on affidavit.

 ii) The matter shall be listed
before the Joint Registrar for recording of
plaintiffs evidence on 29 August, 2011.

 (iii) The case shall be listed
before court for direction on 18.01.2012.

 (iv) Needless to say in case IA
No. 1001/2011 is allowed, appropriate
orders for evidence of the plaintiff would be
made."

 20.Thus
technically
trial
commenced when the date was fixed for
leading evidence by the plaintiff but
actually the amendment application was
filed before the evidence was led by the
plaintiff. The parties led evidence after the
amendment application was filed. In this
context, it is necessary to notice the order
of the High Court dated 14.02.2014, which
records that evidence of both the parties
have been concluded. Most important fact
to be noticed in the order is that the Court
recorded the statement of plaintiff's counsel
that parties have led evidence in view of the
amendment sought in the plaint. The order
dated 14.02.2014 is to the following effect:-

 "The evidence of both the parties
has been concluded. The matter has been
listed for final disposal. The learned
counsel for the plaintiff has pointed out the
order dated 26th July, 2011 wherein
observation was made that in case I.A. No.
1001/2011 under Order VI Rule 17 CPC
876 INDIAN LAW REPORTS ALLAHABAD SERIES
for amendment of the plaint is allowed,
appropriate order for evidence of the
plaintiff would be made. As a matter of
fact, plaintiffs counsel stated that the
parties have also led evidence in view of
amendment sought in the plaint and the
same covered in the evidence produced by
the parties. The defendants, however,
alleged that the said amendment was
unnecessary and was opposed by the
defendants and issue involved in the said
circumstances be considered at the time of
final hearing of suit as defendant No.1 is
more than 85 years old lady, the suit itself
be decided.

 List this matter in the category of
Short cause on 22 May, 2014...."

 21.By
same
order
dated
14.02.2014, the Court directed that the
amendment application be taken at the time
of final hearing. As noticed above, when
plaintiff sought for framing additional
issues which application was rejected, the
matter was taken before the Division Bench
and the Division Bench ultimately has
directed the learned Single Judge to
consider
the
amendment
application.
Subsequently, the amendment application
was rejected on 24.10.2016.

 22 .The Proviso to Order VI Rule
17 prohibited entertainment of amendment
application after commencement of the trial
with the object and purpose that once
parties proceed with the leading of
evidence, no new pleading be permitted to
be introduced. The present is a case where
actually before parties could led evidence,
the amendment application has been filed
and from the order dated 14.02.2014, it is
clear that the plaintiff's case is that parties
has led evidence even on the amended
pleadings and plaintiff's cases was that in
view of the fact that the parties led evidence
on amended pleadings, the allowing the
amendment
was
mere
formality.
The
defendant in no manner can be said to be
prejudiced by the amendments since the
plaintiff led his evidence on amended
pleadings also as claimed by him.

 23. This Court in Chander Kanta
Bansal Vs. Rajinder Singh Anand, (2008) 5
SCC 117 has noted the object and purpose of
amendment made in 2002. In Para 13,
following has been held:-

 "13. The entire object of the said
amendment is to stall filing of applications
for amending a pleading subsequent to the
commencement of trial, to avoid surprises
and the parties had sufficient knowledge of
the other's case. It also helps in checking the
delays in filing the applications. Once, the
trial commences on the known pleas, it will
be very difficult for any side to reconcile. In
spite of the same, an exception is made in the
newly inserted proviso where it is shown that
in spite of due diligence, he could not raise a
plea, it is for the court to consider the same.
Therefore, it is not a complete bar nor shuts
out entertaining of any later application. As
stated earlier, the reason for adding proviso
is to curtail delay and expedite hearing of
cases."

 24.Looking to the object and
purpose by which limitation was put on
permitting amendment of the pleadings, in
substance, in the present case no prejudice
can be said to have caused to the defendant
since the evidence was led subsequent to the
filing of the amendment application. We thus
are of the view that looking to the purpose
and object of the Proviso, the present was a
case where it cannot be held that amendment
application filed by the plaintiff could not be
considered due to bar of the Proviso."
9 All. Chitranshi vs. Rajnarayan
877
13. The law as laid down by
Hon'ble
Supreme
Court
in
case
of
Mohinder Kumar Mehra Vs. Roop Rani
Mehra (supra) is that technically the trial
commences when the date is fixed for
leading evidence by the plaintiff. In
Mohinder Kumar Mehra Vs. Roop Rani
Mehra
(supra),
the
Supreme
Court
considering the facts of the case allowed
the application for amendment as the same
was filed before leading evidence by the
plaintiff, despite the fact that the issues
were framed and date was fixed for leading
evidence by the plaintiff. In the present
case, it is not the case of any of the parties
that the evidence has begin, only objection
of the counsel for the petitioner is that the
issues were settled before moving an
application under Order VI Rule 17 of the
C.P.C.

14. In judgment relied upon by
counsel for the petitioner Nitaben Dinesh
Patel Vs. Dinesh Dayabhai Patel (supra), in
paragraph Nos. 8, 9, 10, 11 of the
judgment, the Supreme Court has held as
under:-

 "8. Order VI Rule 17 CPC
provides for amendment of the pleadings. The
Court may at any stage of the proceedings
allow either party to alter or amend his
pleadings (including written statement) in
such manner and on such terms as may be
just, and all such amendments shall be made
as may be necessary for the purpose of
determining
the
real
questions
in
controversy between the parties. Proviso to
Order VI Rule 17 CPC further provides that
no application for amendment shall be
allowed after the trial has commenced,
unless the Court comes to the conclusion
that in spite of due diligence, the party could
not have raised the matter before the
commencement of the trial.
 9. Relying upon the proviso to
Order VI Rule 17 CPC, the High Court has
refused
the
amendment
sought
qua
paragraphs 35 and 36. However, it is
required to be noted that as per the case of
the appellant-wife, she actually came to
know about the actual marriage between
the respondent and Hinaben Manubhai
Panchal on 14.12.2006 only during the
cross-examination of the respondent and
when
the
marriage
certificate
was
produced on record. It is required to be
noted that right from the very beginning, it
was the specific case on behalf of the
appellant that the respondent-husband is
living in adultery with Hinaben Manubhai
Panchal and in the rejoinder affidavit filed
by the respondent-husband, the respondent
-husband denied the allegation of adultery
and stated that Hinaben Manubhai Panchal
is manager in the hospital run by him and
she is looking after the hospital and
accounts as a job. Though, the respondenthusband
had
married
with
Hinaben
Manubhai Panchal on 14.12.2006, he did
not disclose the correct and true facts and
suppressed the material facts. Only in the
cross-examination,
he
admitted
the
marriage with Hinaben Manubhai Panchal
on 14.12.2006 and produced the marriage
certificate. Therefore, in view of the above,
the restrictions as per the proviso to Order
VI Rule 17 CPC shall not be applicable.

 10. The proviso to Order VI Rule
17 CPC provides that no application for
amendment shall be allowed after the trial
has commenced unless the court comes to
the conclusion that in spite of due diligence
the party could not have raised the matter
before
the
commencement
of
trial.
Therefore, if some facts have come to the
knowledge subsequently and subsequent to
the commencement of trial, may be during
the course of trial and if it is found that it is
878 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary for the purpose of determining
the real questions in controversy between
the parties, on a fair reading of Order VI
Rule 17 CPC, such an application for
amendment can be allowed even after the
trial has commenced. In the present case,
as observed hereinabove, the factum of
actual marriage on 14.12.2006 came to the
knowledge of the appellant-wife when the
marriage certificate was produced during
the cross- examination of the respondenthusband and immediately thereafter the
application (Ex.281) for amendment was
made.

 11. Therefore, as such, and
looking to the case on behalf of the
appellant, so pleaded in the written
statement, the learned Family Court was
right
and
justified
in
allowing
the
amendment sought qua paras 35 and 36.
The High Court has committed an error in
misapplying the proviso to Order VI Rule
17 CPC and has erred in rejecting the
amendment sought qua paras 35 and 36 in
application (Ex.281)."

15. In the present case also the
facts which were sought to be added by
means of the proposed amendment came to
the knowledge of the plaintiff-respondent
subsequently as held by the Principal
Judge,
Family
Court,
the
proposed
amendment is quoted as under:-

 "1. यह मक वादपत्र के "पैरा- 7" मेंइबारत "तैयार
ह"ेै के आगे"बमकक मेरेऊपर सन्देह करती हैतथा दूसरी मस्त्रयों से
सम्बन्ध होने का आरोप लगाती ह, का इजाफा ेै फ्रमाया जाये।

 2. यह मक यामचका के "पैरा- 11" की चौथी
लाइन मेंदजटशब्द "भगा मदया" के बाद इबारत "मवपक्षी अपनी
मनयुमि के टथान मौदहा ब्लॉक मेंराष्री य ग्रामीण आजीमवका ममशन
के कायाटलय मेंअपनेसहकमी उमाकान्त नामदेव के साथ टवच्छन्द
रूप सेघूमती मफरती हैतथा उि व्यमि का मवपक्षी के घर मौदहा
मेंआना आना रहता ह,ेै मजसेवहााँके लोगों नेभी देखा हैतथा
ऑमफस मेंभी मवपमक्षया एवं उसके सहकमी का व्यवहार अमयाटमदत
हैतथा उनका व्यवहार पूणटरूप सेदशाटता हैमक मवपक्षी व उसके
सहकमी के मध्य बहुत घमनष्ठ सम्बन्ध ह,ेै जोमक ममत्रता की श्रेणी
मेंहरमगज़ नहीं ह.।ेै याची मवपक्षी की इन हरकतों सेबहुत दुखी हैएवं
अब याची व मवपक्षी के मध्य पमत पत्नी केररमते का आगे भी रह
पाना सम्भव नहीं ह।ेै

 3. यह मक वादंपत्र के पैरा 14 मेंदजटशब्द "लगा
मदया" के आगे"इसी प्रकार मदनांक 29.07.2022 को मवपक्षी
एवं उसके सहयोगी उमाकान्त नामदेव नेयाची के साथ गाली गलौज
मकया तथा जान सेमारनेकी धमकी दी गयी, मजसकी ररपोटट थाना
मौदहा मेंअन्तगटत धारा-504, 506 भा०द०सं० केअन्तगटत याची
नेदजट करायी, मजसकी पेशबन्दी मेंमवपक्षी द्वारा झूठेतथ्यों के आधार
पर पुमलस अधीक्षक हमीरपुर को प्राथटना पत्र महज याची द्वारा की
गयी प्रथम सूचना ररपोटट सेबचनेहतुेे प्रटतुत मकया गया ह।ेै याची
का मवपक्षी केसाथ रहने में उसकी टवयं की जान को खतरा ह इस
कारण भी व ेै ेैवामहक सम्बन्ध मवच्छेद मकया जाना आवमयक
ह"ेै

16.
Considering
the
rival
submissions of the counsel for the parties
as well as the facts of the case, I am of the
view that amendment sought by the
plaintiff-respondent
has
been
rightly
allowed by the Principal Judge (Family
Court), Hamirpur and mere framing of
issues before filing of application of
amendment will not be an impediment in
allowing the amendment sought by the
plaintiff-respondent. If some facts have
come to the knowledge of the party to the
suit subsequent to the commencement of
trial, may be during the course of trial and
if it is found that it is necessary for the
purpose of determining the real questions
in controversy between the parties, on a fair
reading of Order VI Rule 17 CPC, such an
application for amendment can be allowed
even after the trial has commenced.

17. So far as the other contention
of learned counsel for the petitioner that by
9 All. Lohar & Ors. Vs. State
879
the
proposed
amendment,
the
plaintiff-respondent has tried to change the
cause of action for filing the divorce
petition
by
adding
new
ground
is
concerned, is also misconceived for the
reason that Section 13 of the Hindu
Marriage Act, 1955 provides that a petition
for divorce can be filed by either husband
or wife on the grounds mentioned in the
Section 13 of the Hindu Marriage Act,
1955. There is no prohibition for either of
the party to file a petition on one or more
grounds specified in Section 13 of the
Hindu Marriage Act. Even assuming that
by the proposed amendment, a new ground
is being sought to be added by the plaintiffrespondent in his divorce petition, will not
be an impediment for moving such an
application.