Smt. Shikha Thakur vs Mukesh Thakur

Hon''ble Servesh Kumar Gupta, J.—Sri Arvind Vashisth and Smt. Monika Pant, Advocates for the petitioner.

Sri Ravi Joshi, Advocate for the respondent.

This Court has rendered hearing to learned counsel for the parties at length.

Petitioner has preferred this petition challenging the order dated 5.3.2012, passed by Principal Judge, Family Court, Dehraadun, whereby the amendment application (Paper No. 58-A), moved by the petitioner, under Order 6 Rule 17 r/w Section 151 of the CPC (CPC), has been rejected.

It appears that both the parties were espoused on 29/30.4.2006 and after a couple of months of wedding, the differences cropped up between the couple for sundry reasons, making them estranged to each other. Ultimately, petitioner Smt. Shikha Thakur was constrained to leave the matrimonial house and for last four years, she is residing with her parents at Dehradun. Respondent Mukesh Thakur filed a divorce petition u/s 13 of the Hindu Marriage Act, before the Principal Judge, Family Court, Dehradun on 19.2.2012. He got his complaint amended on 20.7.2011 and just after one and half month, he filed a petition bearing No. 1909 (M/S) of 2011, which was disposed of by this Court on the same day with a direction to the court below to decide the divorce petition expeditiously, preferably within six months. The evidence commenced in the court and after examination of respondent in the court below, petitioner moved the impugned amendment application, seeking certain amendments in her written statement. She also explained the cause of her failure to bring those averments earlier, while filing the written statement on 18.5.2011, as also the additional written statement, filed in response to the amendment of the complaint done on 20.7.2011. It appears that by the impugned amendment application, she has more elaborately explained the entire facts and circumstances, disclosing the differences and the relations between the duo more eloquently.

Learned counsel for the petitioner, in his support, has relied upon the following precedents of Hon''ble Apex Court: -

Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others,

Steel Authority of India Ltd. and Another Vs. State of West Bengal and Others, .

In the case of Revajeetu Builders, the Hon''ble Apex Court has discussed another judgment, which it passed in the case of Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, . The Hon''ble Apex Court reiterated the stand taken in Usha Balashaheb Swami''s case that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

In the case of Steel Authority of India (Supra), the earlier stand taken by the Hon''ble Apex Court was further reiterated. In that case also, the application for amendment of the written statement was rejected by the lower court and the High Court, on the ground that an inconsistent plea could not be allowed to be taken.

The Hon''ble Apex Court did not agree and appreciate the ground of rejection made by the High Court as well as by the trial court and expressed its view that the amendment of written application could not have been rejected on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.

It was further argued on behalf of petitioner that the sought amendment must have been allowed by the court below, fortiori for the reasons that she was a destitute wife, remaining under so much adverse conditions of living and even facing the death of her minor child made her perturbed and disturbed, not to explain the entire facts and circumstances, in detail, to his lawyer also.

Per contra, learned counsel on behalf of respondent, has drawn the attention of this Court towards the Proviso of Order 6 Rule 17 CPC, which reads as under:-

Provided 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.

A bare reading of the above Proviso makes it clear that although the amendment application shall not be allowed normally, after the trial has commenced but it does not draw a clear cut bar from making such amendments. It still gives a discretion to the Court that where in spite of due diligence, the party could not raise the matter before the commencement of the trial, then the amendment application can be allowed. Considering the adverse circumstances of a destitute wife, in which she has been constrained, not only to pass her days and to survive in the society, but also to contest the massive litigation launched by respondent Mukesh Thakur, there would have been a bit little liberalness on the part of the court below to allow the amendment application. Besides, the precedent of Hon''ble Apex Court (Supra), as relied upon by learned counsel for the petitioner, is the explanation of the Proviso, inserted by the Legislature in the year 2002.

In view of what has been stated above, the Court feels that amendment application deserves to be allowed. Accordingly, the impugned order dated 5.3.2012 is set aside. The amendment application moved by petitioner (Paper No. 58-A) is hereby allowed. Let the amendment, as prayed, be incorporated in the written statement within 15 days. Thereafter, the respondent will have further liberty to file additional pleadings (if any) and also to adduce his evidence, in order to prove the newly added/amended pleadings. As regards time limitation for early disposal of the divorce petition, the same is hereby further extended to next three months, in addition to six months, earlier granted by this Court.

Subject to above, the petition is disposed of finally.