Nitaben Dinesh Patel vs Dinesh Dahyabhai Patel

Code of Civil Procedure, 1908 – Order VIII, r.6A – Counterclaim by defendant – Tenability – Held: It is true that as per Order VIII Rule 6A CPC, a defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not – However, in the present case, according to appellant-wife (defendant), the cause for counter claim (in divorce proceedings initiated by the husband) had accrued after she had delivered her defence (written statement) and more particularly when during cross-examination of the plaintiff (respondent-husband) the factum of marriage with another woman was admitted and the marriage certificate was produced – High Court, therefore, was not justified in refusing to allow the counter claim proposed by appellant-wife (defendant) – Hindu Marriage Act, 1955 – s.23A.

Code of Civil Procedure, 1908 – Order VI Rule 17, proviso – Amendment of pleadings – Restrictions as per proviso to Order VI Rule 17 – When not applicable – Held: It is clear from the proviso to Order VI Rule 17 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 – Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced – Pleadings – Amendment.

Partly allowing the appeals, the Court

HELD:1. Order VI Rule 17 CPC provides for amendment of the pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings (including written statement) 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 questions in controversy between the parties. Proviso to Order VI Rule 17 CPC further provides 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 the trial. Therefore, if some facts have come to the knowledge subsequently and subsequent to the commencement of trial, may be during the course of trial and if it is found that it is necessary for the purpose of determining the real questions in controversy between the parties, on a fair reading of Order VI Rule 17 CPC, such an application for amendment can be allowed even after the trial has commenced. In the present case, the factum of actual marriage on 14.12.2006 came to the knowledge of the appellantwife when the marriage certificate was produced during the crossexamination of the respondent-husband and immediately thereafter the application for amendment was made. Therefore, as such, and looking to the case on behalf of the appellant, so pleaded in the written statement, the Family Court was right and justified in allowing the amendment. The High Court committed error in misapplying the proviso to Order VI Rule 17 CPC and erred in rejecting the amendment. [Para 7][635-B-D; 636-A-D]

2.1. Now so far as the amendment sought, for incorporating prayer to declare the second marriage of respondent as illegal, void, voidable etc. is concerned, it was in the form of counterclaim. It is true that as per Order VIII Rule 6A CPC, a defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. However, in the present case, according to the appellant, the cause for counter claim had accrued after the appellantdefendant has delivered her defence (written statement) and more particularly when during the cross-examination of the plaintiff (respondent herein) the factum of marriage with ‘H’ on 14.12.2006 was admitted and the marriage certificate was produced. Therefore, the High Court is not justified and/or right in refusing to allow the counter claim as proposed on the ground that the same is not permissible after the appellant as defendant has delivered her defence by filing the written statement. [Para 8][636-D-H]

2.2. However, by way of counter claim, the respondent in any proceedings for divorce or judicial separation or restitution of conjugal rights can pray for the relief by way of counter claim only those reliefs which can be prayed and/or granted under the Hindu Marriage Act, namely, the relief under Section 9 (Restitution of conjugal rights); Section 10 (judicial separation); Sections 11 & 12 (declaration of marriage between the petitioner and the respondent void) and Section 13 (divorce). Therefore, the respondent to the proceedings in question can pray for the aforesaid reliefs only by way of counter claim and that too between the petitioner and the respondent. No relief can be prayed qua the third party. Under the provisions of the Hindu Marriage Act, the relief of divorce, judicial separation etc. can be between the husband and the wife only and cannot extend to the third party. Therefore, by virtue of Section 23A of the Hindu Marriage Act, it is not open for the appellant– original defendant to seek declaration to the effect that the marriage between the respondent – original plaintiff and the third party – ‘H’ is void. No relief can be prayed by way of counter claim even against the son born out of the alleged wedlock between the respondent – original plaintiff and the third party – ‘H’. In such a situation, the only remedy available to the appellant would be to file a substantive suit and/or initiate independent proceedings claiming such reliefs. But such reliefs cannot be claimed by way of counter claim under Section 23A of the Hindu Marriage Act in the petition for divorce filed by the respondent against the appellant. At the most, the appellant– original defendant by way of counter claim could have claimed the relief and prayed for divorce and/or judicial separation on the ground of husband’s adultery. Beyond that, no relief which cannot be granted under the provisions of the Hindu Marriage Act can be claimed by way of counter claim. [Para 9][637-F-H; 638-A-F]

Andhra Bank v. ABN Amro Bank (2007) 6 SCC 167 ; Chander Kanta Bansal v. Rajinder Singh Anand (2008)

5 SCC 117 : [2008] 4 SCR 748; Abdul Rehman v. Mohd. Ruldu (2012) 11 SCC 341 : [2012] 8 SCR 922 ;

Gurbakhsh Singh v. Buta Singh (2018) 6 SCC 567; Ashok Kumar Kalra v. Wing Commander Surendra

Agnihotri (2020) 2 SCC 394; Ajendraprasadji N.

Pandey v. Swami Keshavprakeshdasji N. (2006) 12 SCC 1 : [2006] 10 Suppl. SCR 477; M. Revanna v. Anjanamma (dead) by Lrs. (2019) 4 SCC 332; Vidyabai v. Padmalatha (2009) 2 SCC 409 : [2008] 17 SCR 505 – referred to.

Damodar v. Urmila, AIR 1980 Raj. 57 – approved.