The importance of due diligence and proper grounds for amendment under Order 6 Rule 17 C.P.C., and the need for cautious and careful framing of issues by the trial court.

This Writ Petition has been filed under Article 227 of the Constitution of India with the prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 06.02.2009 passed by Addl. Family Judge, Roorkee, District Haridwar in Petition No.66 of 2007 Kaviraj Yashvardhan Sastri Vs. Smt. Reena Verma under Section 13 of Hindu Marriage Act.

2. Brief facts of the case are that respondent-Kaviraj Yashvardhan Sastri filed a suit bearing No.66 of 2007 in the court of Principal Judge, Family Court, Haridwar under section 13 of the Hindu Marriage Act. Thereafter, the written statement was filed by the petitioner-Smt. Reena Verma. The evidence of respondent-husband has already been closed in the month of May 2008 and the case is going on for the evidence of the petitioner.

3. The petitioner has moved an application dated 30.01.2009 for framing the additional issue and this application is still pending for disposal. The petitioner has prayed in the application dated 30.01.2009 that an issue be framed as to whether the marriage took place in the year 1992 or 1993. Thereafter, respondent-Kaviraj Yashverdhan moved an amendment application dated 31.01.2009 before the trial court in which it was alleged that the marriage was solemnized on 13.04.1992 in presence of few special guests and due to the embarrassment in public a formal marriage took place on 28.05.1993 between Kaviraj Yashverdhan Shastri and Smt. Reena Verma. Thereafter, the petitioner- Smt. Reena Verma has filed an objection dated 06.02.2009 against the aforesaid amendment application. Thereafter, the trial court allowed the amendment application vide impugned order dated 06.02.2009. Feeling aggrieved by the said order, the present petition has been preferred by the petitioner.

4. I have heard learned counsel for the parties and perused the record.

5. At the outset, it needs to be mentioned here that it is not disputed that the marriage took place in between the parties. The only dispute is "whether the marriage was solemnized on 13.04.1992 or 28.05.1993". If the marriage is admitted between the parties there is no question of framing of such issue by the trial court.

6. It is admitted that the amendment applications were filed when the evidence of the parties have been closed. Order 6 Rule 17 C.P.C. provides 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 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial."

7. Plaintiff-Kaviraj Yashvardhan Shastri should have stated in the amendment application that inspite of due diligence he could not raise the pleas in his application and he should have also recorded the grounds for due diligence in the application or in the affidavit. If these facts have not been averred in the application moved by the plaintiff for amendment, the said application cannot be allowed by the trial court. Learned counsel for the respondent could not demonstrate before me that such fact, which is mandatory under the provision of Order VI Rule 7 CPC, has been indicated in the amendment application. In view of this, the trial court should have rejected the amendment application filed by the respondent-Kaviraj Yashvardhan Shastri. The trial court has committed a patent illegality in allowing the amendment application. The amendment application dated 31.01.2009 filed before the trial court is liable to be dismissed. It was pointed out by learned counsel for the parties that the trial court has already framed this issue. It is surprising to me that in a case where the marriage is admitted between the parties and a petition for divorce has been moved as