# Meenu Rajvanshi v. Brijesh

- **Citation:** (2025) 5 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-22
- **Case number:** First Appeal No. 49 of 2025
- **Bench:** Vivek Chaudhary, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/meenu-rajvanshi-v-brijesh-53461
- **Pages:** 10

## Headnote

888 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Civil Procedure Code, 1908 -
Order VI, VIII, Rule 6 A, 17, 151, - Hindu
Marriage Act, 1955 - Section 13 - Indian
Penal Code, 1860 - Sections 498-A, 504 &
506 - The Dowry Prohibition Act, 1961 -
Sections 3 & 4 - Constitution of India,
1950 - Article 227- First Appeal - filed by the
appellant wife - challenges the Family Court's
order - allowing the respondent's amendment
application
-
appellant's
marriage
was
solemnized in year 2011 - matrimonial dispute -
under pressure of demand of dowry & other
compelling circumstances, she left the house of
her husband - criminal proceedings initiated
against husband lodged by wife - Suit for
divorce u/section 13 of HM Act, filed by wife -
respondent husband started delaying tactics, by
filing various types of Applications - however,
family court rejected respectively - petition
under Article 227 filed by wife for expedite
disposal of suit before High Court - disposed of
with direction to decide the suit within a period
four months - respondent husband again filed
Misc. Applications in suit - Rejected - First
Appeal - - Dismissed - husband did not stop
there - Husband filed Amendment Application
under Order VI Rule 17 read with Section 151 of
CPC - seeking amendment in the pleadings as
well as in the prayer clause, seeking restitution
of conjugal rights - objection - allowed -
present
Appeal
-
court
finds
that,
the
amendment application was filed after ten years
and just before the final hearing as well as after
opportunity for leading evidence was closed just
to delaying the proceedings - Despite prior
rejections
of
multiple
witness-summoning
applications and the High Court directive to
conclude the case within four months, the
Family Court allowed the amendment without
proper judicial scrutiny - held, in the light of
cited case of 'Nitaben Dinesh Patel Vs Dinesh
Dahyabhai Patel' the impugned order passed on
the
amendment
application
cannot
be
sustainable and the same is liable to be setaside - consequently, the appeal is allowed - the
Family Court is directed to decide the matter
within two months on a day-to-day basis,
without unnecessary adjournments. (Para -
13,15, 16,17, 19)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

5 All. Meenu Rajvanshi Vs. Brijesh
887
the evidence with care. Each case
presents its own features. In some case, the
failure of the prosecution to account for the
injuries of its story, while in others it may
have little or no adverse effect on the
prosecution case. It may also, in a given
case, strengthen, the plea of private
proposition of law of universal application
that as soon as it is found that the accused
had
received
injuries
in
the
same
transaction in which the complainant party
was assaulted, the plea of private defence
would stand prima facie established and the
burden would shift to the prosecution to
prove that those injuries were caused to the
accused in self defence by the complainant
party.

CONCLUSION

11. Thus, it can be concluded that
the Trial Court has not given due
consideration to the lacuna or infirmity
appearing in the prosecution case and
relied upon the testimony of P.W.-1 and
P.W.-2 without carefully scrutinizing
their testimony in correct perspective.
The failure of the prosecution to explain
the genesis and origin of the occurrence
has the effect of prosecution failing to
bring on record the correct version of the
event.
The
improbability
of
the
prosecution regarding the genesis and
events and the manner in which the
incident were unfolded, created a doubt
on the prosecution case, which has not
been examined by the Court below. The
defence has clearly probabilized its
version, which cannot be over looked.
The findings of the Trial Court that
prosecution had established its case
beyond
reasonable
doubt,
therefore,
cannot
be
sustained.
The
accused
appellants are clearly entitled to benefit
of doubt in the matter.
12. For the forgoing reasons and
discussion held above, the present appeal
succeeds and is allowed.

13. The Judgment and Order of
conviction dated 02.11.1982 passed by
learned Additional Sessions Judge IV,
Allahabad in Sessions Trial No.162 of
1980, is hereby set-aside.

14. The appellant no.1 Lakhan
and the appellant no.2 Deshraj shall be
set free, if they are in jail and in the
event, they are on bail, their bail bonds
shall
stand
discharged
subject
to
compliance of Section 437-A of Cr.P.C.
provided that they are not wanted in any
other case.

15. Copy of this order be sent by
the Registrar (Compliance) to the Chief
Judicial Magistrate, Prayagraj for necessary
action.

16. Learned Amicus Curiae shall
be paid his remuneration/fees as per Rules.
----------
(2025) 5 ILRA 887
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.05.2025

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE BRIJ RAJ SINGH, J.

First Appeal No. 49 of 2025

Meenu Rajvanshi ...Appellant
Versus
Brijesh ...Respondent

Counsel for the Appellant:
Rishi Raj, Vaani Srivastava, Varun Singh

Counsel for the Respondents:
888 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Civil Procedure Code, 1908 -
Order VI, VIII, Rule 6 A, 17, 151, - Hindu
Marriage Act, 1955 - Section 13 - Indian
Penal Code, 1860 - Sections 498-A, 504 &
506 - The Dowry Prohibition Act, 1961 -
Sections 3 & 4 - Constitution of India,
1950 - Article 227- First Appeal - filed by the
appellant wife - challenges the Family Court's
order - allowing the respondent's amendment
application
-
appellant's
marriage
was
solemnized in year 2011 - matrimonial dispute -
under pressure of demand of dowry & other
compelling circumstances, she left the house of
her husband - criminal proceedings initiated
against husband lodged by wife - Suit for
divorce u/section 13 of HM Act, filed by wife -
respondent husband started delaying tactics, by
filing various types of Applications - however,
family court rejected respectively - petition
under Article 227 filed by wife for expedite
disposal of suit before High Court - disposed of
with direction to decide the suit within a period
four months - respondent husband again filed
Misc. Applications in suit - Rejected - First
Appeal - - Dismissed - husband did not stop
there - Husband filed Amendment Application
under Order VI Rule 17 read with Section 151 of
CPC - seeking amendment in the pleadings as
well as in the prayer clause, seeking restitution
of conjugal rights - objection - allowed -
present
Appeal
-
court
finds
that,
the
amendment application was filed after ten years
and just before the final hearing as well as after
opportunity for leading evidence was closed just
to delaying the proceedings - Despite prior
rejections
of
multiple
witness-summoning
applications and the High Court directive to
conclude the case within four months, the
Family Court allowed the amendment without
proper judicial scrutiny - held, in the light of
cited case of 'Nitaben Dinesh Patel Vs Dinesh
Dahyabhai Patel' the impugned order passed on
the
amendment
application
cannot
be
sustainable and the same is liable to be setaside - consequently, the appeal is allowed - the
Family Court is directed to decide the matter
within two months on a day-to-day basis,
without unnecessary adjournments. (Para -
13,15, 16,17, 19)

Appeal Allowed. (E-11)

List of Cases cited:
1. M. Revanna Vs Anjanamma (Dead) Legal
Representatives & ors.;(2019) 4 SCC 332.

2. Nitaben Dinesh Patel Vs Dinesh Dahyabhai
Patel (Civil Appeal Nos. 5901-5902 of 2021),

3. J. Samuel & ors.Vs Gattu Mahesh & ors.;
(2012) 2 SCC 300.

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This first appeal under Section 19
(1) of the Family Court Act, 1986 has been
filed against the order dated 20.2.2025
passed by the learned Additional Principal
Judge 6, Family Court, Lucknow in
Original Case No. 2977 of 2014 (Smt.
Meenu Rajvanshi Vs. Brijesh) filed under
Section 13 of the Hindu Marriage Act,
1955 (hereinafter referred to as the Act
1955), whereby the learned Family Court
has allowed the amendment application
filed by the respondent.

2. Brief facts of the case as per appellant
are that on 1.5.2011 marriage of the appellant
was performed with respondent according to
the Hindu Rites and Rituals at Lucknow. The
appellant went to the house of her husband and
performed her marital obligations but they
demanded a car and cash as dowry, therefore,
under the pressure of demand of dowry and
other
compelling
circumstances,
on
31.12.2012 the appellant left the house of the
respondent. On 18.4.2023, the appellant
lodged F.I.R. against the respondent and his
family members on 18.4.2013 bearing Case
Crime No. 171 of 2013 under Sections 498-A,
504, 506 I.P.C. & Section 3/4 of the D.P. Act,
Police Station- Madiyaon, District- Lucknow.
After investigation, charge sheet was filed and
the court concerned took cognizance in the
matter on 23.12.2013.

3. Since both the parties were living
separately for more
than one year,
5 All. Meenu Rajvanshi Vs. Brijesh
889
therefore, the appellant filed a suit for
divorce on 5.11.2014 bearing Original Case
No. 2977 of 2014 (Smt. Meenu Rajvanshi
Vs.Brijesh) under Section 13 of the Hindu
Marriage Act. In the said suit by adopting
the delaying tactics, the respondent filed
various types of applications and in
furtherance thereof he filed an application
for summoning the witnesses- Deepak
Kumar Rajvanshi, Jyoti Rajvanshi and Smt.
Pooja Raj, which was rejected by the
Family Court on 29.8.2023. Thereafter
respondent has also filed an application for
summoning the witnesses- Smt. Pooja and
Smt. Parul, which too was rejected by the
Family Court on 16.5.2024 and 23.8.2024
respectively.

4. Being aggrieved by the delaying
tactics adopted by respondent, the appellant
filed a petition under Article 227 of the
Constitution of India before this Court
bearing no. 4516 of 2024 for a direction to
decide her suit within the stipulated period.
The said petition was disposed of by this
Court vide order dated 21.9.2024 with a
direction to decide the suit of the appellant
within a period of four months. Thereafter,
the
respondent
again
filed
another
application for summoning the witness-
Himani Chaudhary, which was rejected by
the Family Court on 4.12.2024. Against the
said order dated 4.12.2024, the respondent
filed First Appeal Defective No. 20 of 2025
before this Court and this Court vide order
dated 10.2.2025 dismissed the first appeal.
However, the respondent did not stop there
and moved an application for amendment
under Order VI Rule 17 read with Section
151
C.P.C.
on
29.12.2024
seeking
amendment in the pleadings as well as in
the prayer clause for restitution of conjugal
rights, to which objection was filed by the
appellant on 8.1.2025. The Family Court
allowed the said amendment application on
20.2.2025, which is under challenge in this
appeal.

5. Learned counsel for the appellant
has submitted that time and again the
respondent
is
trying
to
delay
the
proceedings of divorce petition filed by the
appellant by one way or the other so that
she could not be able to restart her life. The
appellant has filed a writ petition no. 4516
of 2024 under Article 227 of the
Constitution of India before this Court in
which a direction was issued on 21.9.2024
to decide the divorce petition within four
months from the date of production of a
certified copy of the order. This Court
while disposing of the writ petition
observed that respondent is trying to delay
the proceedings. For ready reference, the
order dated 21.9.2024 passed by this Court
in the aforesaid petition is quoted herein
below:-

1. Heard learned counsel for
petitioner. In view of order being passed,
notices to opposite parties stand dispensed
with.

2. Petition has been filed under
Article 227 of the Constitution of India
seeking a direction to court concerned for
expeditious disposal of Suit filed by
petitioner under Section 13 of Hindu
Marriage Act.It is submitted that aforesaid
proceedings are pending consideration for
the
past
ten
years
without
final
adjudication. Learned counsel has drawn
attention
to
order
passed
by
court
concerned on 23.08.2024 to submit that the
court concerned itself has indicated that
final disposal of proceedings is delayed due
to non-cooperative attitude of defendant.

3.
Upon
consideration
of
submissions advanced and perusal of order
sheet, it does appear the court concerned in
its order dated 23.08.2024 has clearly
890 INDIAN LAW REPORTS ALLAHABAD SERIES
adverted to fact that final disposal of
proceedings is delayed due to noncooperative attitude of defendant who
keeps
on
filing
same
nature
of
Application(s) time and again despite its
continuous rejection.

4. In view of aforesaid facts and
circumstances, the court concerned being
the Additional Principal Judge (Room
No.6), Family Court, Lucknow is directed
to decide Case No.2977 of 2014 (Smt.
Meenu Rajvanshi v. Brijesh) expeditiously
within a period of four months from the
date a certified copy of this order is
brought on record of the proceedings in
case there is no other legal impediment.

5. Benefit of this order shall be
available to petitioner only in case she
cooperates in early disposal of the
proceedings.

6. With aforesaid observations,
the writ petition stands disposed of.

6. Learned counsel for the appellant
has further submitted that respondent again
filed an application for summoning the
witness-Himani Chaudhary, which was
rejected by the Family Court on 4.12.2024.
The order dated 4.12.2024 was challenged
by the respondent by filing First Appeal
Defective No. 20 of 2024 before this Court,
which too was dismissed as withdrawn on
10.2.2025. It has further been submitted by
learned counsel for the appellant that on the
face of record, it is to be seen that
successive
applications
filed
by
the
respondent for summoning many witnesses
were rejected by the Family Court on
29.8.2023,
16.5.2024,
23.8.2024
and
4.12.2024 respectively. Thus, conduct of
the respondent is to be seen by this Court as
he
is
trying
to
delay
the
divorce
proceedings which are pending for more
than ten years. It has been submitted by
learned counsel for the appellant that while
allowing the amendment application of the
respondent, the Family Court has not
applied its judicial mind and has also
overlooked the provisions of Order VI Rule
17
C.P.C.
as
the
said
amendment
application was filed after ten years from
the date of institution of the suit as well as
after giving direction given by this Court
for deciding the case within four months.
For the sake of convenience, Order VI Rule
17 C.P.C. is quoted herein-below:-

"17. Amendment of pleadings.
The Court may at any stage of the
proceedings allow either party to alter or
amend his pleading 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.]"

7. It has further been submitted by
learned counsel for the appellant that
allowing the amendment application may
initiate claim of restitution of conjugal
rights and compensation which were never
pleaded by the respondent within ten years
of the pendency of the case. It has also
been submitted that Family Court has
ignored
its
own
observation
dated
23.8.2024 enclosed as Annexure-3 to the
appeal
wherein
it
is
observed
that
respondent
is
trying
to
delay
the
proceedings. Thus, the amendment at the
belated stage is not sustainable in the eyes
of law. Submission is that in case the
amendment is allowed, fresh cause of
5 All. Meenu Rajvanshi Vs. Brijesh
891
action will arise whereas the proceedings
are very close to attain its finality.

8. Learned counsel for the appellant
by placing reliance upon the judgment of
Hon'ble The Supreme Court in the case of
M. Revanna Vs. Anjanamma (Dead)
Legal Representatives And others;(2019) 4
SCC 332, has submitted that case of the
appellant is squarely covered by the ratio
laid down in the said judgment, wherein it
has been held that at the belated stage
amendment application may not be allowed
as allowing the amendment application
would certainly change the nature of the
case. The relevant paragraph nos. 7,8 and 9
of
the
said
judgment
are
quoted
hereinbelow:-

7. Leave to amend may be refused
if it introduces a totally different, new and
inconsistent
case,
or
challenges
the
fundamental character of the suit. The
proviso to Order VI Rule 7 of the C.P.C.
virtually prevents an application for
amendment
of
pleadings
from 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 the trial. The proviso, to
an extent, curtails absolute discretion to
allow amendment at any stage. Therefore,
the burden is on the person who seeks an
amendment after commencement of the
trial to show that in spite of due diligence,
such an amendment could not have been
sought earlier. There cannot be any dispute
that an amendment cannot be claimed as a
matter
of
right,
and
under
all
circumstances.
Though
normally
amendments are allowed in the pleadings
to avoid multiplicity of litigation, the Court
needs to take into consideration whether
the application for amendment is bona fide
or mala fide and whether the amendment
causes such prejudice to the other side
which cannot be compensated adequately
in terms of money.

8. As mentioned supra, the suit
was filed in the year 1993 and at that point
of time, Defendant Nos. 4 to 6 were not
made parties to the suit. Plaintiff Nos. 1 to
5 and Defendants Nos. 1 to 3 were the only
parties. They had filed a joint memorandum
for the dismissal of the suit on 22.04.1993,
which was within one or two months of the
filing of the suit. The compromise petition
came to be rightly dismissed by the High
Court in RFA No. 297/1994. In the
compromise petition, curiously, it was
noted that the joint family properties were
divided by metes and bounds in the year
1972. If the partition had really taken place
in the year 1972 and was acted upon as per
the Panchayat Parikath, then Plaintiff Nos.
1 to 5 would not have filed a suit for
partition and separate possession in the
year 1993. Be that as it may, it is clear
from records that the suit was being
prolonged on one pretext or the other by
the Plaintiff Nos. 1 to 5 and ultimately, the
application for amendment of the plaint
came to be filed on 01.09.2008. By that
time, the evidence of both the parties had
been recorded and the matter was listed for
final hearing before the Trial Court. If
there indeed was a partition of the joint
family properties earlier, nothing prevented
Plaintiff Nos. 1 to 5 from making the
necessary application for the amendment of
the plaint earlier. So also, nothing
prevented them from making the necessary
averment in the plaint itself, inasmuch as
the suit was filed in the year 1993. Even
according to Plaintiff Nos. 1 to 5, they
came to know about the compromise in the
year 1993 itself. Thus, there is no
explanation by them as to why they did not
file the application for amendment till the
892 INDIAN LAW REPORTS ALLAHABAD SERIES
year 2008, given that the suit had been filed
in 1993. Though, even when Plaintiff Nos.
1 to 5 came to know about the partition
deed
dated
18.05.1972
(Panchayat
Parikath) on 22.04.1993, they kept quiet
without
filing
an
application
for
amendment
of
the
plaint
within
a
reasonable time. On the contrary, they
proceeded
to
cross
examine
PW-1
thoroughly and took more than five years'
time to get the examination of PW-2
completed, and only thereafter filed an
application seeking amendment of the
plaint on 01.09.2008, that too when the suit
was posted for final arguments. As
mentioned supra, the suit itself is for
partition and separate possession. Now, by
virtue of the application for amendment of
pleadings, Plaintiff Nos. 1 to 5 want to
plead that the partition had already taken
place in the year 1972 and they are not
interested to pursue the suit. Per contra,
Plaintiff No. 6/Respondent No.1 herein
wants to continue the proceedings in the
suit for partition on the ground that the
partition had not taken place at all.

9. Having regard to the totality of
the facts and circumstances of the case, we
are of the considered opinion that the
application for amendment of the plaint is
not only belated but also not bona fide, and
if allowed, would change the nature and
character of the suit. If the application for
amendment is allowed, the same would
lead to a travesty of justice, inasmuch as
the Court would be allowing Plaintiff Nos.
1 to 5 to withdraw their admission made in
the plaint that the partition had not taken
place earlier. Hence, to grant permission
for amendment of the plaint at this stage
would cause serious prejudice to Plaintiff
No. 6/Respondent No. 1 herein".

9. On the other hand, the respondent
in person has made submission that he
wanted to live with his wife/appellant but
she refused and for the last 10 years he
along with his family members are being
mentally
harassed
by
the
appellant,
therefore, his application for amendment
regarding the prayer for restitution of
conjugal rights as well as other pleadings
may be allowed so that he can lead
evidence to that extent and set up his
counter claim in view of provision of Order
VIII Rule 6 A of C.P.C. The provisions of
Order VIII Rule 6 A of the C.P.C. is quoted
herein-below:-

6-A. Counter-claim by defendant
(1) A defendant in a suit may, in addition to
his right of pleading a set-off under Rule 6,
set up, by way of counter-claim against the
claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the
defendant against the plaintiff either before
or after the filing of the suit but before the
defendant has delivered his defence or
before the time limited for delivering his
defence has expired, whether such counterclaim is in the nature of a claim for
damages or not:
Provided that such counter-claim shall not
exceed
the
pecuniary
limits
of
the
jurisdiction of the Court.

(2) Such counter-claim shall have
the same effect as a cross-suit so as to
enable the Court to pronounce a final
judgment in the same suit, both on the
original claim and on the counter-claim.

(3) The plaintiff shall be at liberty
to file a written statement in answer to the
counter-claim of the defendant within such
period as may be fixed by the Court.

(4) The counter-claim shall be
treated as a plaint and governed by the
rules applicable to plaints.

10. In support of his submission, the
respondent has also placed reliance upon
5 All. Meenu Rajvanshi Vs. Brijesh
893
the judgment of Hon'ble The Supreme
Court in the case of Nitaben Dinesh Patel
Vs. Dinesh Dahyabhai Patel (Civil Appeal
Nos. 5901-5902 of 2021) and the relevant
paragraph no. 8 of the said judgment is
quoted hereinbelow:-

"Now so far as the amendment
sought qua para 37 in Ex.281 application
is concerned, at the outset, it is required to
be noted that it was in the form of counterclaim. It is true that as per Order VIII Rule
6A CPC, a defendant in a suit may, in
addition to his right of pleading a set-off
under rule 6, set up, by way of counterclaim against the claim of the plaintiff, any
right or claim in respect of a cause of
action accruing to the defendant against
the plaintiff either before or after the filing
of the suit but before the defendant has
delivered his defence or before the time
limited for delivering his defence has
expired, whether such counter-claim is in
the nature of a claim for damages or not.
However, in the present case, according to
the appellant, the cause for counter claim
had accrued after the appellant-defendant
has
delivered
her
defence
(written
statement) and more particularly when
during
the
cross-examination
of
the
plaintiff (respondent herein) the factum of
marriage with Hinaben Manubhai Panchal
on 14.12.2006 was admitted and the
marriage
certificate
was
produced.
Therefore, the High Court is not justified
and/or right in refusing to allow the
counter claim as proposed in para 37 on
the ground that the same is not permissible
after the appellant as defendant has
delivered her defence by filing the written
statement. On the aforesaid ground, the
High Court ought not to have rejected the
amendment sought qua para 37.

However, at the same time, the
core question which is required to be
considered is, whether the appellant-wife
could have claimed the relief sought qua
para 37 by way of counter claim in a
marriage petition filed by the respondenthusband for dissolution of the marriage?

11. We have heard Sri Rishi Raj,
learned counsel for the appellant as well as
the respondent (in person) and perused the
record.

12. In various judgments, Hon'ble The
Supreme Court has held that exercise of
due diligence is requirement for counter
claim, which cannot be dispensed with and
the term "due diligence" determines the
scope of a party's constructive knowledge.
Hon'ble The Supreme Court has also held
that application at the belated stage may be
permitted under Order VI Rule 17 of the
C.P.C. but only with plausible explanation.
However,
in
the
present
case
the
respondent is unable to give any plausible
explanation as to how he kept silence over
the matter for the last 10 years and now
when date for final hearing has been fixed,
he moved an application for amendment
and for setting up his counter claim.
Hon'ble The Supreme Court has pondered
in detail about the words "due diligence" in
the case of J. Samuel and others Vs. Gattu
Mahesh and Others; (2012) 2 SCC 300
and the relevant paragraph nos. 18 to 20
are quoted herein- below:-

"18. The primary aim of the court
is to try the case on its merits and ensure
that rule of justice prevails . For this the
need is for the true facts of the case to be
placed before the court so that the court
has access to all the relevant information in
coming to its decision. Therefore, at times
it is required to permit parties to amend
their plaints. The court's discretion to grant
permission for a party to amend his
894 INDIAN LAW REPORTS ALLAHABAD SERIES
pleading lies on two conditions, firstly, no
injustice must be done to the other side and
secondly,
the
amendment
must
be
necessary for the purpose of determining
the real question in controversy between
the parties. However, to balance the
interests of the parties in pursuit of doing
justice, the proviso has been added which
clearly states 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."(emphasis supplied)

19. Due diligence is the idea that
reasonable
investigation
is
necessary
before certain kinds of relief are requested.
Duly diligent efforts are a requirement for
a party seeking to use the adjudicatory
mechanism to attain an anticipated relief.
An advocate representing someone must
engage in due diligence to determine that
the representations made are factually
accurate and sufficient. The term "due
diligence" is specifically used in the Code
so as to provide a test for determining
whether to exercise the discretion in
situations of requested amendment after the
commencement of trial.

20. A party requesting a relief
stemming out of a claim is required to
exercise due diligence and it is a
requirement which cannot be dispensed
with. The term "due diligence" determines
the
scope
of a
party's
constructive
knowledge, claim and is very critical to the
outcome of the suit."

13. After hearing learned counsel for
the parties and perusing the record, we find
that amendment application under Order VI
Rule 17 read with Section 151 C.P.C. was
filed by the respondent after 10 years of the
institution of the suit by the appellant.
Apart from it, this Court while disposed of
the petition filed by the appellant bearing
no. 4516 of 2024 vide order dated
21.9.2024 directed the Family Court to
decide the case within four months taking a
note that perusal of the order sheet of the
Family Court reveals that respondent is
trying to delay the proceedings by filing
applications after applications, which were
rejected. In spite of the aforesaid order
passed by this Court, the Family Court
entertained and allowed the amendment
application filed by the respondent on
4.12.2024. It is also relevant to note here
that the amendment, which is sought by
way
of
amendment
application,
was
already in the knowledge of the respondent
since the institution of suit but he has filed
amendment application only when the
proceedings are at final stage which is
certainly a delaying tactics and the same
would change the nature of the case.
Therefore, the respondent has no case for
the reason that his successive applications
filed
before
the
Family
Court
for
summoning the witnesses were rejected on
29.8.2023,
16.5.2024,
23.8.2024
and
4.12.2024 respectively and the writ petition
filed by the appellant was also disposed of
by this Court with a direction to the Family
Court to decide the suit within four months.
Lastly, the respondent has recently filed an
application for amendment just to delay the
proceedings and to harass his deserted wife,
who is running from pillar to post for the
last 10 years. The provisions of Order VI
Rule 17 C.P.C. is to be seen in the
perspective of the given facts that unless
the court comes to the conclusion that in
spite of due diligence the party could not
have raised the matter before the court. In
the present case, for the last 10 years the
respondent was silent over the matter and
when the proceedings were at final stage,
5 All. Meenu Rajvanshi Vs. Brijesh
895
he moved the amendment application,
which is against the spirit of the provisions
of Order VI Rule 17 of C.P.C.

14. On bare reading of the provisions
of Rule 6 A it is clear that counter claim
can be filed against the plaintiff in respect
of a cause of action accruing to the
defendant against the plaintiff either before
or after filing of the suit but before the
defendant has delivered his defence or
before the time limited for delivering his
defence has expired. In the present case,
after passing the order for closing the
evidence on 4.12.2024 the application for
amendment moved by the respondent on
19.12.2024 is not sustainable.

15. After going through the order
dated 21.9.2024 passed by this Court in the
petition filed by the appellant bearing nom
4516 of 2024, it is quite surprising that
amendment application has been allowed
by
the
Family
Court
on
20.2.2025
especially when this Court had already
given a direction to the Family Court to
decide the case within four months and
even no modification application was
moved in this regard. Therefore, the
impugned order cannot be sustainable and
the same is liable to be set aside.

16. The judgment of Hon'ble the
Supreme Court passed in Nitaben Dinesh
Patel Vs. Dinesh Dahyabhai Patel (Supra)
relied by the respondent also will not be
applicable in the present case for the reason
that in the aforesaid case it is to be seen 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. Though, the
respondent-husband
had
married
with
Hinaben Manubhai Panchal on 14.12.2006,
but 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, after going through the
facts of the aforesaid case, it is clear that in
the said case the amendment was filed as
soon as the document was brought on
record, whereas in the present case the suit
was filed in the year 2014 and the
amendment application has been filed after
10 years by the respondent just to defeat the
purpose of the litigation because prayer for
restitution of conjugal rights could have
been made at the time of institution of the
suit but he did not choose to file his claim
which was within his knowledge. It is also
pertinent to mention here that after passing
the order for closing the evidence on
4.12.2024 as well as after fixing the date for
final hearing on 23.12.2024 by the Family
Court, the respondent filed his amendment
application on 19.12.2024 with malafide
intention.

17. The order dated 4.12.2024 which
has been filed as Annexure No.5 to the appeal
indicates that Family Court recorded a
finding that respondent was afforded ample
opportunity to lead evidence and thereafter
opportunity for leading evidence was closed
and the matter was fixed for hearing on
23.12.2024. However, respondent in order to
delay the proceedings moved the amendment
application on 19.12.2024 and the Family
Court without application of proper judicial
mind allowed the said application

18. The appeal is accordingly
allowed. The order dated 20.2.2025 passed
by the learned Additional Principal Judge,
6, Family Court, Lucknow is set aside.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Though the learned Single Judge
on application bearing no. I.A. No. 2 of
2025 filed in writ petition bearing no. 4516
of 2024 vide order dated 5.3.2025 directed
the Family Court to decide the case within
a further period of eight months from the
date of production of certified copy of the
order is brought on record, but looking into
the peculiar fact and circumstances i.e. it is
an old matter, the Family Court concerned
is directed to proceed with the case on dayto-day basis and decide the same within
two months from today without granting
any unnecessary adjournments including
ground of strike of lawyers.

20. No order as to cost.
----------
(2025) 5 ILRA 896
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ - A No. 3505 of 2024

Ram Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vinay Kumar Singh

Counsel for the Respondents:
C.S.C., Mayank Sinha, Neerav Chitravanshi,
Ran Vijay Singh

A. Service Law - Payment of Gratuity Act,
1972 - Sections 7(3-A) & 8 - Gratuity -
Interest
on
delayed
payment
-
Entitlement
-
Nature
of
Gratuity
explained - Held, pension and gratuity
are not mercy or courtesy shown by the
Government, after the retirement of the
employee, rather it is valuable right and
therefore, if there is any delay in
settlement and disbursement of the
same, the same would visit the penalty of
payment of interest - The interest on
such delayed payment of gratuity is
neither penal nor compensatory in nature
and further it is a necessary corollary to
the retention of money by other person.
(Para 18 and 19)
B. Practice and Procedure - Modification
Application
-
Maintainability
Writ
petition was finally decided - However,
the interest on delayed payment was
claimed
by
way
of
modification
application - How far substantive prayer
can
be
granted
on
modification
application - Held, for reviving the
proceedings in a finally decided writ
petition, no Miscellaneous Application
would be maintainable - The prayer for
payment of interest on the gratuity
amount in all senses, are the substantial
prayer - This Court after passing the
order has become functus officio and
does
not
retain
the
jurisdiction
to
entertain an application for substantially
decided issues - High Court rejected the
modification application leaving it open
to avail the remedy of filing the review
petition. (Para 24, 29, 30, 32 and 33)
Modification Application rejected. (E-1)
List of Cases cited:
1. H. Gangahanume Gowda Vs Karnataka Agro
Industries Corp. Ltd (2003) 3 SCC 40
2.
D.D.
Tewari
(Dead)
Through
legal
representatives Vs Uttar Haryana Bijli Vitran
Nigam & ors.. (2014) 8 SCC 894
3. St. of U.P. Vs Brahm Datt Sharma & anr.
reported in (1987) 2 SCC 179
4. in Civil Appeal No. 5041 of 2021; Supertech
Limited Vs Emeraled Court Owner Resident
Welfare Association & ors. (On Miscellaneous
Application No. 1572 of 2021)
5. Jaipur Vidyut Vitran Nigam Ltd. Vs Adani
Power Rajasthan Ltd., reported in 2024 SCC
OnLine SC 313