The court affirmed that amendments to pleadings after trial commencement are not allowed unless due diligence is demonstrated.

JUDGMENT

M.B.Snehalatha.J Petitioners, who are the respondents in O.P.No.2854/2021 of Family Court, Ernakulam, assail Ext.P5 order of the said Court, by which it dismissed Ext.P3 application filed by them under Order VI Rule 17 of the Code of Civil Procedure (CPC) seeking amendment of the counterclaim.

2. O.P.No.2854/2021 was filed by the respondent herein/wife seeking return of her gold ornaments and patrimony from the petitioners herein. Petitioners, who are the husband and in-laws, filed counter statement along with a counter claim for return of 10 sovereigns of gold ornaments from the respondent/wife. After the evidence of the respondent/wife was closed and the case was posted for evidence of the petitioners, they filed Ext.P3 application for amendment of the counterclaim, stating that there occurred certain clerical and typographical errors in the description and weight of the gold ornaments claimed by them in the counterclaim and they omitted to include one diamond necklace in their counterclaim.

3. It was contended by them that due to the ill health of the

1^st petitioner/husband, he could not detect those clerical mistakes and omissions in the counterclaim and they could detect the mistakes only after the trial was commenced.

4. The learned counsel for the petitioners argued that the Family Court went wrong in dismissing Ext.P3 application seeking amendment on the ground that the amendment would prejudice the respondent/wife. It was contended that the Family Court misapplied the concept of commencement of trial for the purpose of Order VI Rule 17 of CPC.

5. Per contra, the respondent/wife contended that the proposed amendment sought by the petitioners after the examination of the respondent/wife would cause great prejudice to her; that originally the weight of the gold ornaments in the counterclaim was 10.75 sovereigns, which they want to enhance it by way of amendment. In addition to that, a new item of ornament, namely a diamond necklace, was also sought to be added in the counterclaim by way of amendment and if the said amendment is allowed after the examination of the respondent/wife it would cause great prejudice to her.

6. Admittedly, O.P.No.2854/2021 was filed by the wife/respondent herein seeking return of her gold ornaments and patrimony. Petitioners herein, who are the husband and in-laws, filed counter to the said O.P, along with a counterclaim seeking return of 10 3/4 sovereigns of gold ornaments, belongs to 1^st petitioner herein, which was taken away by her when she left the matrimonial home. After the examination of the respondent as PW1, petitioners filed Ext.P3 application under Order VI Rule 17 CPC seeking amendment of the counterclaim. A perusal of Ext.P3 application would show that by way of amendment, petitioners sought to amend the description and weight of gold ornaments and to add two new items of gold ornaments and one item of diamond necklace.

7. By the impugned order, the learned Family Court dismissed the application for amendment on the ground that evidence of the respondent herein was already completed and after completion of the evidence of the respondent/wife, if such an amendment is allowed, it would prejudicially affect the case of the respondent herein.

8. Before adverting to the point whether the Family Court erred in dismissing Ext.P3 application for amendment, let us have a look at Order VI Rule 17 CPC, which reads as under:

“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 determin