Jomy Joseph vs Vilja Aliswa C.K.

A.N. Venugopal Gowda, J.—Respondent has instituted M.C. 114/2011 against the petitioner, in the Family Court at Bangalore, to pass a decree and dissolve the marriage solemnized on 28.04.2004. The petitioner has contested the case. Soon after examination of the respondent herein, the petitioner moved I.A. VI, for amendment of the statement of objections raising an additional plea. The prayer having been rejected on 23.07.2014 vide order as at Annexure-A, this writ petition was filed.

Smt. S. Susheela, learned advocate, contended that the impugned order being irrational and illegal, interference is called for.

Sri H. Mujtaba, learned advocate, on the other hand contended that the proposed amendment would have the effect of drastically altering the nature of defence and the same having been filed after commencement of trial, proviso under Rule 17 of Order 6 CPC, being attracted, the Court below is justified in dismissing I.A. VI. Learned counsel submitted that I.A. VI having been filed at a belated stage and there being lack of due diligence, the Court below is justified in dismissing I.A. VI, filed with mala fide intention to protract the case and cause hardship.

The only point for consideration in this writ petition is whether the petitioner herein has made out a case for amendment of the statement of objections in terms of Order 6 Rule 17 of CPC?

In Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , Apex Court, considering the scope of the amendment of the pleadings, while dealing with applications for amendments, has held as follows:

"63. 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."

On the date I.A. VI was filed, the trial had commenced. Hence, the Court should find out whether (i) there is lack of due diligence; (ii) the application is mala fide; (iii) if the amendment if permitted would cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) by refusing amendment would in fact lead to injustice or lead to multiple litigation and (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case.

It is trite that the purpose and object of Order VI Rule 17 of CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. However, amendment cannot be claimed as a matter of right and under all circumstances. The Courts while deciding the applications for amendment of pleadings should not adopt a hyper-technical approach and liberal approach should be the rule, particularly, in cases where the other side can be compensated with cost, in order to decide the real questions in controversy between the parties and also to minimise the litigation.

The amendment proposed in I.A. VI, reads thus:

"To add Para 23A as follows:-

23(A) The petitioner herein had originally filed O.P. 317/2008 on the file of family Court at Secunderabad. The petitioner herein had managed to get an Exparte decree of divorce in said case. Immediately after coming to know of it the respondent herein moved an application and got the order of exparte set aside. The petitioner herein then filed an application Under Order XXIII Rule 3 of C.P.C. seeking permission to withdraw the said petition with leave to file fresh petition. The Hon''ble Family Court dismissed her application by order dated 5/1/2010 stating that she cannot be permitted to file fresh petition. Said order became final and remained unchallenged. However subsequently the Family Court at Secunderabad came to a conclusion that, that court had no jurisdiction. Hence by order 23/9/2010, the petition in O.P. 317/2008 was returned for presentation before the proper Court. The petitioner herein instead of representing the same before this Hon''ble Court has filed a fresh petition in M.C. 114/2011, which is not maintainable in law. The said petition is liable to be dismissed as not maintainable in view of earlier order on application under Order 23 passed by the family Court at Secunderabad in O.P. 317/2008 and also in view of final order dated 23/9/2010. The present petition is hit by principles of Res judicata, constructive res judicata and also on Limitation. The petitioner has suppressed all these material facts before this Hon''ble Court in her pleadings."

The proposed amendment is only a matter of record, particularly with reference to the earlier proceedings and the legal consequences flowing therefrom. By the proposed amendment, there is no fundamental change in the nature and character of the defence and by permitting the same, there would not be any prejudice to the respondent herein, who could be compensated adequately in terms of money, on account of I.A. VI having been filed after commencement of the trial.

The Trial Judge, by adopting a hyper-technical and pedantic approach, without even noticing the proposed amendment, necessary for determining the real questions in controversy between the parties, has dismissed I.A. VI. Thus, the impugned order, opposed to settled principles of law, suffers from legal infirmities and is unsustainable.

I.A. VI having been filed, after commencement of the trial and before the commencement of the cross-examination, the original petitioner i.e., the respondent herein, can be permitted to depose further, so that there will not any prejudice caused to her.

In Abdul Rehman and Another Vs. Mohd. Ruldu and Others, , Apex Court, taking note of amendment made to Order VI Rule 17, as per Amendment Act 22 of 2002, has held as follows:

"11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others Vs. Gattu Mahesh and Others, and Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, ."

(emphasis supplied by me)

The view taken by the Trial Court to dismiss I.A. VI being contrary to the settled principles of law, noticed supra, there is need to interfere with the impugned order.

Resultantly, a case having been made out to permit the petitioner to amend the statement of objections, in the manner proposed in I.A. VI, extracted in para 8 supra, the impugned order of the Trial Court, as at Annexure-A, is set aside and I.A. VI is allowed, subject to payment of cost of Rs. 5,000/- before the Trial Court, on the next hearing date. Payment of cost by the petitioner to the respondent herein shall be a condition precedent to the incorporation of the amendment in the written statement of the petitioner.

Since the parties have been litigating from 2008, the Family Court is directed to decide the case/s with expedition and before 30.04.2015, by refusing unnecessary adjournment/s, if sought by either of the parties.