The main legal point established in the judgment is the limited scope of interference under Article 227 of the Constitution of India and the application of the test of due diligence in the context of amendment applications under Order 6, Rule 17 of the CPC.

Prakash Shrivastava, J.

Advocates Appeared :

For the Petitioner : Shri. Amit Panchal, learned counsel

For the respondent : Shri. Vikas Yadav, learned counsel

2. Heard finally with consent.

3. This writ petition under Article 227 of the Constitution of India has been filed by the non-applicant in the suit challenging the order of the Family Court dated 13.4.2015 rejecting the petitioner's application under Order 6, Rule 17 of the CPC for amending the written statement.

4. In brief the respondent has filed the application under Section 125 Cr.P.C. and after filing the reply the petitioner has filed an application under Order 6, Rule 17 CPC which has been rejected by the trial court.

5. Learned counsel for the petitioner submits that amendment was based upon the subsequent knowledge of necessary facts which ought to have been allowed.

6. Learned counsel for the respondent has opposed the application and has submitted that test of due diligence is not satisfied and the facts were within the knowledge of the petitioner from before.

7. Having heard learned counsel for the partoes and on perusal of the record, it is noticed that the trial Court has passed an elaborate order and has assigned due reason for rejecting the petitioner's application for amendment. Trial Court had noted that the application under Section 125 of Cr.P.C has been filed by the respondent in March 2011 and thereafter, the petitioner was proceeded ex-parte and on 21.7.2012, when the matter was fixed for the final argument at this stage, the counsel for the petitioner had appeared and he was permitted to file the reply. The reply was filed on 21.12.12 and when the matter reached at the stage of evidence again petitioner had filed the present application for amendment on 23.3.2015. Trial Court has also noted that the facts which the petitioner is trying to raise by way of amendment were within his knowledge from before and a part of these facts have already been mentioned in the reply. Since, the trial has already commenced and the matter has reached at the stage of evidence, therefore, placing reliance upon the judgment of the Supreme Court in the matter of Vidya Bai v. Padmalatha reported in 2009 (1) MPWN 69, trial Court has rightly held that test of due diligence is not satisfied and has rejected the application for amendment.

8. Supreme Court in the matter of Ajendra Prasad Ji N. Pandey and Another v. Swami Keshavprakeshdasji N. and others reported in (2006) 12 SCC Page 1, in somewhat similar circumstances in a matter where the issues were framed and plaintiff had filed the affidavit of examination-in-chief and at that stage defendant had filed the application for amendment seeking to insert in the written statement certain matters which were within his knowledge and had not been included at the appropriate stage and in the application for amendment no ground had raised about due diligence has held that proviso to Order 6, Rule 17 of the CPC is attracted.

9. Counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in the matter of Usha Devi v. Rijwan Ahmad and others, reported in 2008 (3) MPLJ 460 but that was a case where it has been held that the merits of the amendment is not relevant for allowing the prayer for amendment but in the present case the reason for rejection of the application for amendment is different in respect of not filing of the application at the earlier stage. Counsel for the petitioner has also placed reliance upon the judgment of the Supreme Court in the matter of Andhra Bank v. ABN Amro Bank N.V. & others reported in AIR 2007 SCC 2511 but that was a case where amendment was sought to introduce a new defence but in the present case it has been rightly noted by the trial Court that plea already exists in the reply of the petitioner. He has also placed reliance upon the judgment of the Supreme Court in the matter of Puran Ram v. Bhaguram and another reported in 2008(3) MPLJ 273 but in the present case the court ha