B. Jawahar Samuel vs J. Anney Alice Sharene

K. Sampath, J.—The respondent in I.D.O.P. No. 52/95 on the file of the District Court, Kanniyakumari, is the revision petitioner. The said

O.P. has been filed by the respondent herein seeking divorce of her marriage with the revision petitioner on the ground of adultery coupled with

cruelty. The original petition was filed on 6-4-1905. The revision petitioner filed his counter on 18-2-1996. Thereafter, in 1997 the respondent

filed an application in I.A. No. 246/97 seeking amendment of the petition. This application was opposed by the revision petitioner and the lower

Court having allowed the application for amendment, the present revision petition has been filed. The amendments sought for relate to deletion of

sentences 2 and 3 in paragraph 18 of the petition and addition of another sentence, deletion of paragraph 14 and addition of a different paragraph

14, deletion of paragraph 15 and addition of a new paragraph in the place of paragraph 15 and in the cause of action column, the date 1-8-1993

to be deleted and the date 18-5-1994 to be substituted.

According to the revision petitioner, the proposed amendments have been sought for by the respondent to circumvent her earlier admissions and

that if the amendments were allowed, he would be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the

respondent and that the amendments change the cause of action and the ultimate aim of the respondent was to fill up the lacunae pointed out by the

revision petitioner in his counter in this main petition.

The lower Court has found that what the respondent had sought for was to narrate the facts and events that had taken place from 1-3-1993 till

the date of the filing of the main O.P. The lower Court has found that the details sought to be introduced are necessary for the main O.P. The

lower Court also rejected the contention on behalf of the revision petitioner that in case the amendments were allowed, the application would go

outside the jurisdiction of the lower Court. The lower Court relied on the following decisions:

Md. Salih Sahib Vs. T.C. Adam Sahib,

Savithri Amma Seethamma Vs. Aratha Karthy and Others,

Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon (AIR 1969 SC 1264)

Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another,

The lower Court has also found that the revision petitioner, after the amendments are carried out, would get a further opportunity to file an

additional counter and that when the respondent got into the box, if the main petition lacked in material particulars, it would not be possible for her

to speak to the details.

So far as paragraph 14 is concerned, the respondent has given the date on which she came to her parents'' house at Nagercoil as 24-12-1992.

It is sought to be corrected as 24-12-1994 and the period during which the parties lived as husband and wife at Nagercoil to be corrected as the

period from 24-12-1993 to 27-12-1993 instead of 1-3-1993. It is not disputed that the details now sought to be introduced find a place in the

first information report filed by the respondent before the police. These details as has been rightly found by the lower Court are necessary for

elucidating her stand.

The learned counsel for the revision petitioner strenuously contended that the amendments sought for by the respondent changed the cause of

action and were intended to fill up the lacunae pointed out in the main counter to the petition filed by the respondent for divorce. The learned

counsel relied on the following decisions:

A.K. Gupta and Sons Vs. Damodar Valley Corporation,

Kanailal Das and Another Vs. Jiban Kanai Das and Another,

Sri Santosh Kumar Hui Vs. Sri Prakash Kumar Palit and others, and

C. Muthupandian Vs. Ramasamy Thevar alias Kattiamaram Ramiah Thevar and others,

In the first of the decisions relied on by the learned counsel it has been held that,

amendment of pleadings introducing new case cannot be allowed if suit on such case is barred and that in the matter of allowing amendment of

pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the

new cause of action is barred. However, where the amendment does not constitute the addition of a new cause of action or raise a different case,

but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the expiry of the statutory

period of limitation.

In the instant case, there is no question of limitation involved. It cannot also be said that there is an addition of a new cause of action or that a

different case is raised. The Supreme Court has gone to the extent of saying that when the amendment amounts to a different or additional

approach, such an amendment has to be allowed even when a new suit would be barred. This decision, in my view, does not help the case of the

revision petitioner.

The decision of the Calcutta High Court in Kanailal Das and another v. Jiban Kanai Das and another (AIR 1997 Calcutta 189) is to the effect

that substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject matter of or controversy

in the suit is not permissible. The Calcutta High Court has further observed that,

Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive

allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment and in

general, the amendments should not cause prejudice to the other side which cannot be compensated in costs.

On facts, the Calcutta High Court held that, ""there is no substitution of new case in place of original one and there was no change in respect of the

real nature of controversy or the subject matter of the suit."" Same is the position here also. There is no change in respect of the real nature of the

controversy. The respondent has sought for divorce on the ground of adultery coupled with cruelty. This ground is not given up and no new ground

is sought to be introduced by amendment. There is no change in respect of either the nature of the controversy or the subject matter of the

proceedings. There is no new case introduced.

In another Calcutta case reported in Sri Santosh Kumar Hui Vs. Sri Prakash Kumar Palit and others, where the suit was filed for specific

performance of contract, amendment was sought to introduce a right of pre-emption. It was held that, ""the right of pre-emption did not flow from

the alleged contract between the parties, that the amendment sought for was inconsistent and contradictory and therefore could not be allowed.

This case, in my view, has no application to the facts of the present case.

In the decision by a learned single Judge of this Court in C. Muthupandian v. Ramasamy Thevar (AIR 1095 Madras 277) in a suit for

declaration that the document in question was only a deed of mortgage and not a sale deed, an application was filed for amendment of plaint stating

that the said document was void and alternative prayer was also made for declaration to that effect. It was held that the application was liable to be

dismissed when in support of such alternative prayer, new set of facts was pleaded, namely that another document was also registered on the same

day by the parties which was a bogus document whereby the defendant had purchased some properly in the name of the plaintiff and that the

plaintiff had no connection with the said transaction. Only if the said document was proved to be a bogus one as pleaded in the proposed

amendment the plaintiff could succeed in the above said alternative prayer and therefore it was clear that a new cause of action was being set up by

the proposed amendment. The learned Judge held that the application for amendment could not be granted. In coming to that conclusion the

learned Judge relied on the decision in A.K. Gupta & Sons v. Damodar Valley Corporation already referred to.

It is now well established that,

all amendments ought to be allowed at any stage of the proceedings which satisfy the two conditions (a) of not working injustice to the other side,

and (b) of being necessary for the purpose of determining the real question in controversy between the parties.

Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but

the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a

plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by

limitation, the amendment must be refused: to allow it would be to cause the defendant an injury which could not be compensated in costs by

depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to

the other side, or can it not?"" (Kishandas Rupchand and another v. Rachappa Vithoba Shilwant and others (I.L.R. 33 Bombay 644)

It has been held in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., ) that,

it is no doubt true that Courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on

the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered,

and does not affect the power of the Court to order it, if that is required in the interests of justice.

In Nichhalbhai Vallabhai and Others Vs. Jaswantlal Zinabhai and Others, the Supreme Court observed that,

the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits and that if the amendment were refused the plaintiff

would have-to bring another suit. It is well known canon of interpretation that it is the duty of the Court not to confine itself to the force of a

particular expression but to collect the intention from the whole instrument taken together.

In Gaganan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990-I SCC 166) the principle has been reiterated that the interests of justice

should be the criterion.

In Kenchegowda v. Siddegowda Motegowda (1994-4 SCC 294) the Supreme Court held that, ""when causes of action and reliefs are

different, no amendment can be allowed. It cannot be said in the instant case that there is any change of cause of action or the relief sought for is

different. Ultimately, the object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistakes and

punishing for mistakes is, of course, not administration of justice. A.K. Gupta and Sons Vs. Damodar Valley Corporation,

In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, it has been held that,

a party cannot be refused relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court

always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, caused

injury to his opponent which may not be compensated for by an order of costs.

It has no doubt been held in Smt. Ganga Bai Vs. Vijay Kumar and Others, that,

the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of

limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the

discretion, greater ought to be the care and circumspection on the part of the Court.

It has been held by a Division Bench of this Court in T.T.K. Pharma Ltd. v. Ag. Robapharam (1998-II CTC 108) that,

as a cardinal rule, ordinarily, amendment of pleadings is permissible at any stage of the proceedings provided it does not (i) change the nature; (ii)

takes away any right accrued in favour of opposite party; or (iii) causes substantial prejudice

The lower Court has found that by reason of the amendment the revision petitioner is not in any way handicapped and the amendment had

been sought for to avoid unnecessary delay being caused during trial when objections could be raised that the party is leading evidence for which

no basis has been laid in the pleadings. It has also been found by the lower Court that absolutely no prejudice or hardship would be caused to the

revision petitioner, when its discretion is exercised.

In P. Jayabaskar and others v. R. Saraswathi and others (1999-3 LW 396) it has been held that, ""unless it is found as illegal or capricious,

ordinarily, u/s 115 of the Code of Civil Procedure, this Court will not interfere.

The lower Court is not shutting out the revision petitioner. It is open to raise all conceivable objections to the averments in the amended plaint

by filing necessary additional written statement. The trial is not yet commenced. The matter has been pending for five years now. This is a case

where one of the spouses wants to separate and the question should not be allowed to hang fire for a long time. In the interests of the parties

themselves a quietus should be given to the matter and the parties should know ere long as to where they are placed. In as much as it is held that in

the amendment sought for no new cause of action comes into existence and no prejudice is caused to the revision petitioner, the decision of the

lower Court does not warrant interference. The Civil Revision Petition fails and it is dismissed. There will be no order as to costs. Consequently,

the stay petition C.M.P. No. 32/2000 is closed.