Amendment to divorce petition


DEAR SIRS,


I HAD FILED THE DIVORCE PETITION TWO YRS BACK IN FAMILY COURT. THE RESPONDENT WIFE WAS AWARDED INTERIM MAINTENANCE OF RS. 10000/ PM. I APPEALED IN THE HIGH COURT AGAINST THIS ORDER BUT HIGH COURT REJECTED THIS APPEAL.

AT PRESENT STAGE ISSUES ARE FRAMED BUT ARGUMENT HAS NOT YET STARTED. HOWEVER, RECENTLY I GOT NEW EVIDENCE AGAINST RESPONDENT SHOWING OTHER SOURCES OF INCOME WHICH SHE HAS NOT REVEALED TO THE HONOURABLE COURT. NOW I HAVE FILED THE AMENDMENT TO MY MAIN PETITION MENTIONING NEW FACTS AND PLEADED FOR CANCELLATION OF MAINTENANCE. HOWEVER THE RESPONDENT'S LAWYER HAS FILED A REPLY SAYING I CAN NOT INTRODUCE ANY AMENDMENT AT THIS STAGE. MY ADVOCATE IS GOING TO DEFEND OUR AMENDMENT IN THE NEXT HEARING WHICH IS IN THE NEXT MONTH. MY QUESTIONS ARE AS FOLLOWS,

1. CAN I INTRODUCE AMENDMENT AT THIS STAGE. IF YES, THEN PLEASE MAIL ME THE COPIES OF RELEVANT ORDERS BY HIGH COURTS/ SUPREME COURT AS REGARDS THIS WHICH ALLOWS AMENDMENT AT ANY STAGE. MY EMAIL ID-  amarchohan1974@yahoo.com

2. IS THERE ANY OTHER WAY BY WHICH I CAN BRING THESE NEW FACTS BEFORE THE COURT WHICH INFORMATION MIGHT HAVE AN IMPORTANT BEARING ON THE MAINTENANCE.

3. CAN AN INTERIM MAINTENANCE BE CANCELLED BY FAMILY COURT UNDER THE NEW JUDGE, AFTER THE HIGH COURT HAS UPHELD THE THE INTERIM MAINTENANCE ORDER BY THE FAMILY COURT BY AN EARLIER JUDGE. IF YES, IF YES, KINDLY MAIL ME THE RELEVANT ORDERS AS REGARDS THIS.

4. I DO REMEMBER A DIVORCE CASE INVOLVING A PARSEE OLD COUPLE IN THE BOMBAY HIGH COURT (PROBABLY IN 2011), WHERE HON. JUDGE ROSHAN DALVI HAD ALLOWED THE AMENDMENT BY THE PETITIONER HUSBAND GIVING NEW EVIDENCE WHICH HAD AN IMPORTANT BEARING ON THE OUTCOME OF THE CASE. IN THIS ORDER THE HON. JUDGE HAD OBSERVED THAT NEW EVIDENCE CAN BE INTRODUCED AT ANY STAGE OF THE CASE TO SEEK THE TRUTH. IF ANY ONE HAS THE COPY OF THIS ORDER KINDLY MAIL IT TO ME.


I AM EAGERLY WAITING FOR YOUR RESPONSES. PLEASE HELP ME.


THANK YOU.

AC

 
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Worker

if the new facts reveal her income, then file revision application. u dont need to amend the OP.


In  case there is an order  of maintenance pendente lite passed, it cannot be appealed against for it is just an order interlocutory and never a judgement.- S.H.Gupta.v.P.S.Gupta.AIR 1991 Bom.423.



some ref.

 

 

Civil Procedure Code 1908

ORDER VI

PLEADINGS GENERALLY

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 amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

1. Rules 17and 18 which were omitted by Act No. 46 of 1999, section 16.

2. Subs. by Act 22 of 2002, sec. 7 for rules 17 and 18 [as they stood immediately before their omission by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2000).

18. Failure to amend after order.

If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.

Sample application should mention –

1) Court details                                                         2) Title of the case    3) Memo of parties

4) Pleadings which are sought to be amended                                             5) Reasoning

6) Prayer clause to allow amendment the same                                           7) Prayer

Application for impleadment of party

1)    That above suit is pending in the court and fixed for _____

2)    That after enquiries the applicant has come to know that above suit has been filed without impleading applicant as a party 

3)    That if applicant is not impleaded great prejudice would be caused to him but if ______ is impleaded no prejudice would be caused to any one

4)    That impleading of applicant is necessary for proper adjudication of the suit

5)    It is therefore prayed that applicant be impleaded as defendant in the interests of justice 

6)    Dated this __ day of ____2011

 


 

Amendment

 

Rajesh Kumar Aggarwal vs. K.K. Modi  [(2006) 4 SCC 385

The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

·         Similar  views were also expressed in Andhra Bank vs. ABN  Amro Bank N.V. [(2007) 6 SCC 167].

·         AIR 2002 SUPREME COURT 1003 "Gurdial Singh v. Raj Kumar Aneja"

SUPREME  Court in Harcharan vs. State of Haryana [(1982) 3  SCC 408], where it was observed that amendment of  pleadings relating to the main controversy should  not be refused on mere technical grounds

 

IN REVAJEETU BUILDERS CASE BEFORE SUPREME COURT DECIDED IN OCTOBER 2009 THE FOLLOWING PRINCIPLES WERE QUOTED IN THE MATTER OF AMENDMENT OF PLEADINGS

On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

 

There was no  bar to the Appellate Court permitting amendment of pleadings to enable a party to raise a new plea, as  was held by SUPREME Court in Pandit Ishwardas vs.  State of M.P. [(1979) 4 SCC 163]. In fact, SUPREME  Court observed that all that was necessary was that  the Appellate Court should observe the well-known  principles subject to which amendments of pleadings  are usually granted. Naturally, one of the  circumstances which would be taken into consideration before an amendment was granted is  the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the Trial Court. 

 

1.    The Hon’ble Supreme court of India in Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] has held that “It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.

2.    The Hon’ble Supreme court of India in  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. Decided on 14/5/2008 and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp  “ It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”

3.    The Hon’ble Supreme court of India in Chander Kanta Bansal vs  Rajinder Singh Anand Decided on: 11/03/2008 and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp It is observed by court as follows “ It makes it clear that  after the commencement of trial, no application for  amendment shall be allowed.  However, if it is established that  in spite of "due diligence" the party could not have raised the  matter before the commencement of trial depending on the  circumstances, the court is free to order such application.  The  words "due diligence" has not been defined in the Code.   According to Oxford Dictionary (Edition 2006), the word  "diligence" means careful and persistent application or effort.   "Diligent" means careful and steady in application to one's  work and duties, showing care and effort.  As per Black's Law  Dictionary (Eighth Edition), "diligence" means a continual effort  to accomplish something, care; caution; the attention and care  required from a person in a given situation.  "Due diligence"  means the diligence reasonably expected from, and ordinarily  exercised by, a person who seeks to satisfy a legal requirement  or to discharge an obligation.  According to Words and Phrases  by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in  law, means doing everything reasonable, not everything  possible.  "Due diligence" means reasonable diligence; it means  such diligence as a prudent man would exercise in the  conduct of his own affairs. It is clear that unless the party  takes prompt steps, mere action cannot be accepted and file a  petition after the commencement of trial.”

4.    The Hon’ble Supreme court of India in N.Pandey & Anr.  Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1].  and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp In paragraph 57 of the decision, it was observed as follows :”It is submitted that the date of settlement of issues is the date of commencement of trial.”

5.    The Hon’ble Supreme court of India in Baldev Singh & Ors. Vs.  Manohar Singh & Anr. [2006 (6) SCC 498]. and Judgement can be seen in  http://judis.nic.in/supremecourt/chejudis.asp In paragraph 17 of the decision, it was held and observed as follows : “Before we part with this order, we may also  notice that proviso to Order 6 Rule 17 CPC  provides that amendment of pleadings shall not be  allowed when the trial of the suit has already  commenced.

6.    The Hon’ble Supreme court of India in South Konkan Distilleries & Anr.   Vs Prabhakar Gajanan Naik & Ors.[Decided on 09-09-2008]. and Judgement can be seen in http://judis.nic.in/supremecourt/chejudis.asp it was held and observed as follows : “we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and    the   counter      claim,   in   the    facts   and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.” 


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Hi

Can I file an amendment to prayer clause? if so, under which rule/order? The notice has been sent to the Respondent. Thanks

 
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