1 WP-4928-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4928 OF 2011 Ankit Harinbhai Shah ..Petitioner Vs Rupali Ankit Shah ..Respondent -- Mr.Vaibhav Patankar, for petitioner. -- CORAM : R.G.KETKAR, J. DATE : 21 st SEPTEMBER, 2011 P.C.: Heard Mr.Vaibhav Patankar, learned counsel for the petitioner. 2] By this petition, the husband has challenged the judgment and order dated 4 th March, 2011 passed by the learned Principal Judge, Family Court No.1, Pune in application at Exhibit 31 in Petition No.647 of 2005. By that order, the learned Judge allowed the application 2 WP-4928-11.sxw made by the respondent – wife under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short “C.P.C.”) for amending the written statement. 3] Mr.Patankar contended that the respondent had filed written statement in December, 2005 and though in the proposed amendment she had pleaded subsequent developments after filing the written statement, all these developments took place in the year 2006 to 2008. However, the present application for amendment is filed on 19 th January, 2011. Thus, there is a gross delay in filing the application and the same is also not explained. He further submits that even the application is not duly verified or affidavit in support of the said application is not filed by the respondent. Apart from that, he submits that the learned Judge, while allowing the application, has not considered the submissions made by the petitioner opposing for 3 WP-4928-11.sxw application for amendment. 4] I have considered the submissions made by Mr.Patankar. It is not in dispute that the respondent had filed the written statement in December, 2005. Perusal of the application for amendment of written statement would indicate that the respondent wants to bring on record the developments that took place between 2006 and 2008. It is, equally, true that the respondent had filed the application seeking to incorporate these developments in January, 2011. However, mere delay in filing the application for amendment is not fatal having regard to the proviso of Order 6 Rule 17 of C.P.C. Proviso to Rule 17 of Order 6 lays down that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. IN paragraph 4 WP-4928-11.sxw 17, the Apex Court in the case of Baldev Singh Vs. Manohar Singh, 2006, 2006(5)Mh.L.J.634 has considered the expression commencement of trial. The said paragraph reads as under :- “ Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written 5 WP-4928-11.sxw statement at any stage of the proceedings. 5] In the instant case, the petitioner is under cross-examination and the evidence is not yet over. Thus, it cannot be said that the application for amendment was hit by proviso of Order 6 Rule 17 of C.P.C. The order passed by the trial Judge is purely discretionary and therefore, does not call for any interference. The impugned order is interlocutory and if at all, ultimately, the petition is decided against the petitioner, he would be at liberty to raise this point as one of the grounds in the appeal memo at the time of filing a substantive appeal. I, therefore, do not find any reason to interfere with the impugned order. In the result, petition fails and the same is dismissed. [R.G.KETKAR, J.]