The proviso to Order 6 Rule 17 of the Code of Civil Procedure cannot be applied to pleadings filed before the commencement of the Code of Civil Procedure (Amendment) Act, 2002.

1. AFFIDAVIT-of-Service filed before this Court today, be kept with the record.

2. INSPITE of service of notice the opposite party did not choose to appear.

This revisional application is directed against Order No.57, dated August 28, 2007 passed by the First Additional District Judge, Barasat in Matrimonial Suit No.79 of 2007.

3. THE petitioner filed an application under section 13 of the Hindu Marriage Act seeking for dissolution of marriage inter alia on the ground of cruelty.

4. THE suit is contested by the wife. THE trial was ultimately commenced and affidavit as to examination-in-chief was filed. At such stage, an application under Order 6 Rule 17 of the Code of Civil Procedure was taken out by the petitioner seeking an amendment of the original application for divorce by incorporating the following: That during continuance of the instant matrimonial suit at the instance of the respondent a false criminal case has been initiated under sections 498A/506/34 of the Indian Penal Code and in such matter, the petitioner had been arrested in connection with Dum Dum Police Station Case No.185 dated 17.07.2005 and the petitioner was detained in the jail custody for about four days and after such detention, the petitioner was released on bail. It is needless to mentioned here that the respondent with an ulterior motive and intention implicated the brother of the petitioner Achinta Das and three sisters of the petitioner namely, Smt. Rama Das, Smt. Moli Das and Smt. Ila Paul as accused and after such bail of the petitioner, all the alleged accused, i.e., the brother and three sisters of the petitioner were released on bail. It is needless to mention here that the respondent with an ulterior motive and intention only to degrade the petitioner in his society initiated such proceeding by making some false allegations. THE petitioner submits that the marriage between the petitioner and the respondent been irrevocably broken down due to such act of cruelty and the proceeding as initiated by the respondent is false and has been initiated by the respondent only to degrade the family prestige, position, dignity of the petitioner and of his other family members. THE petitioner craves leave to refer the papers with regard to such criminal proceedings at the time of hearing of the instant application."

The said application for amendment was contested by the opposite party and primary objection taken was that the said application cannot be allowed after the commencement of trial.

5. THE Trial Court rejected the said application for amendment holding that the proviso to Order 6 Rule 17 of the Code of Civil Procedure postulates that after the commencement of trial, no application for amendment shall be allowed unless the Court comes to the conclusion that in spite of a due diligence the party seeking an amendment could not have raised the matter.

6. MR. Basu, Learned Advocate appearing for the petitioner submitted that the Trial Court had acted illegally and with material irregularity in dismissing the said application far amendment by invoking the proviso inserted under the provision of Order 6 Rule 17 of the Code of Civil Procedure. He further submits that the said proviso cannot be made applicable inasmuch as the pleadings have been filed prior to coming in force of the Code of Civil Procedure (Amendment) Act, 2002.

Upon hearing Mr. Basu, I am of the view that the order impugned cannot be sustained. The Code of Civil Procedure (Amendment) Act, 2002 came into force on and from 1st July, 2002. Initially the provision under Order 6 Rule 17 was omitted by the Code of Civil Procedure (Amendment) Act, 1999 (hereinafter referred to as the said Act of 1999). The said provision with an added proviso was reintroduced by the Code of Civil Procedure (Amendment) Act, 2002 (hereinafter referred to as the said Act of 2002). Section 16(2)(b) of the said Act of 2002 specifically provides that the provisions of rules 5, 15, 17 and 18 of Order VI of the