Abhishek Singh vs Mamta Panwar

U.C. Dhyani, J. (Oral) - By means of present writ petition, the petitioner seeks following reliefs, among others:

"i) Issue an order or direction to setting aside the order dated 30.04.2016 (Annexure 6) rejecting the amendment application (Annexure 4).

ii) Issue an order or direction to struck off the amendment incorporated by the respondent from the plaint.

iii) Issue an order or direction for setting aside the order dated 09.05.2016 (Annexure 7).

iv) Issue an order or direction in alternate to allow the petitioner to file additional written statement against the amended plaint and the court of Principal Judge, Family Court, Dehradun be directed to frame fresh issues on the basis of pleadings of parties."

Plaintiff (respondent herein) filed a suit under Section 13 of the Hindu Marriage Act before Principal Judge, Family Court, Dehradun with the following prayers:

(i) the marriage dated 25.06.2012 between the plaintiff and defendant (respondent and petitioner herein) be dissolved by a decree of divorce.

(ii) costs of the suit.

(iii) relief.

Thereafter, an application under Order 6, Rule 17 CPC read with Section 10 of Family Courts Act and Section 21 of Hindu Marriage Act was filed by the respondent, which was allowed by the court below, vide order dated 30.04.2016. The amendment sought to be incorporated by the plaintiff (respondent herein) was allowed and a date was fixed for settlement of issues. Aggrieved against the same, present writ petition has been filed by the petitioner/husband.

An amicable settlement took place between the parties on 01.04.2014, outside the court and what happened thereafter was narrated by the respondent in her application filed under Order 6, Rule 17 CPC. By way of amendment, the respondent / wife wanted to incorporate those facts, which have been allowed by the court below. A prayer was also added in the plaint that, besides a decree for dissolution of marriage, a permanent alimony to the tune of Rs. 50 lacs be also awarded to the respondent / wife.

Learned counsel for the petitioner drew attention of this Court towards a decision rendered by Hon�ble Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & sons and others, 2010 (1) Civil Court Cases 001 (S.C.), wherein in the operative portion of the judgment, the following was observed:

"Factors to be taken into consideration while dealing with applications for amendments:

On critically analysing 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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive.

The decision on an application made under Order 6, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.

We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."

After hearing learned counsel for the parties and having gone through the impugned order, this Court is of the opinion that there is no infirmity in the order impugned whereby the amendment application was allowed. The reasons are not far to seek. A decree of dissolution of marriage was prayed for by the respondent/wife. Thereafter, amicable settlement took place between the parties outside the court. The said settlement failed. The respondent / wife started living with the petitioner / husband and thereafter, by way of the amendment, the wife wanted to incorporate certain facts in the plaint, which occurred during restitution of married life, which were allowed by the court below. The nature of the suit does not change by permitting such amendment. It also cannot be said that those facts were within the knowledge of the petitioner while drafting the plaint originally. Only the subsequent events were brought on record. The court below has appropriately dealt with the issue. Therefore, no interference is called for in the same to this extent. This Court, therefore, holds that the amendments, which have been allowed by the court below, need not be interfered with by this Court in the present writ petition. They meet the test laid down by Hon�ble Apex Court in Revajeetu Builders and Developer�s decision (supra).

But, there is another aspect of the matter. A big paragraph has been added by the plaintiff / wife in her plaint. She has also added relief of permanent alimony. The same definitely requires introduction of additional written statement, for which the petitioner (defendant) ought to have been given opportunity to rebut the same. The new facts introduced in the plaint, definitely require an opportunity for rebuttal by the petitioner / husband. Learned court below has committed an illegality in not granting time to the defendant / petitioner to file the additional written statement. Impugned order is, therefore, interferrable to this extent.

Additional written statements shall, therefore, be permitted to be filed by the court below (within four weeks� from today). Thereafter, the court below shall be obliged to settle the issues afresh. Order dated 09.05.2016, passed by the court below, is also set aside. The petitioner / husband is granted time to file the additional written statement before the court below on or before 16.06.2016.

With the observation as above, writ petition stands disposed of.

Let copy of the order be supplied to learned counsel for the petitioner today itself on payment of usual charges.

Stay application no. 4660 of 2016 also stands disposed of.