Prasenjit Mandal - (1.) THIS application is at the instance of the respondent and is directed against the Order dated January 6, 2012 passed by the learned Additional District Judge, 1 st Court, Purulia in Matrimonial Suit No.10 of 2009 thereby dismissing an application for amendment of the written statement. The wife/opposite party herein instituted a matrimonial suit being Matrimonial Suit No.10 of 2009 against husband/petitioner herein praying for divorce on the ground of cruelty and desertion. The husband/petitioner herein is contesting the said suit and the suit was at the stage of peremptory hearing. At that stage, the husband filed an application for the amendment of the written statement and that prayer was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained.
(2.) UPON hearing the learned Counsel for the parties and on going through the materials-on-record, I find that by the proposed amendment, the husband has wanted to incorporate a fact that his wife was leading to an unchaste life and as a result she gave birth of a female child and all this happened before the filing of the suit. The petitioner has contended that he had no knowledge of the fact at the time of filing his written statement. The learned Trial Judge has dismissed the application holding that the allegations proposed to be incorporated are definitely beyond the scope of the suit. There is no justification to amend the written statement. On perusal of his application for amendment, I find that the petitioner has simply recorded that recently he came to know that the wife gave birth of a female child but he did not state any date or month when he came to know such fact. The petitioner has wanted to show that the wife/opposite party herein is leading an immoral life and such amendment was sought for at the stage of peremptory hearing of the suit. So, the petitioner is required to prove that in spite of due diligence, he could not pray for amendment before the commencement of the trial. But the ground as noted above is not enough to hold that the petitioner could not pray for amendment at the earlier stage in spite of due diligence. This being the position, the application comes within the mischief of the proviso to Order 6 Rule 17 of the Civil Procedure Code and as such, I am of the view that the learned Trial Judge has rightly rejected the prayer for amendment of the written statement but on different ground. Accordingly, I am of the view that there is no scope of interference with the impugned order. The application is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.;