Tridib Majumdar vs Joyeeta Majumder

Ishan Chandra Das, J.—Heard the learned Counsel for both the parties.

Assailing the Order dated 16th July, 2013 passed by learned Additional District Judge, 9th Court, Alipore, South 24-Parganas in Matrimonial Suit No. 64 of 2010 the present revisional application has been filed wherein by the order impugned the prayer for amendment of the plaint for conversion of the suit for restitution of conjugal rights to a suit for divorce has been rejected by the learned court below.

Now, the point for consideration before this court is that whether the learned trial court was justified in rejecting the prayer for amendment of the plaint. The fact remains that the petitioner herein filed the suit for restitution of conjugal rights since the wife/opposite party was not showing interest to live with the husband/petitioner and the schedule of the application under Order VI, Rule 17 of the Code at page 18 (annexure-''A'') reveals the grounds for such conversion from the suit for restitution of conjugal rights to a suit for divorce.

The learned Counsel for the opposite party, in course of hearing, submitted that after the commencement of trial the prayer for amendment should not be considered favourably at this belated stage. He drew my attention to the proviso of Order VI, Rule 17 wherein it is provided that "no application for amendment shall be allowed after the trial has commenced".

The nature of the original suit, as it appears, was for restitution of conjugal rights and the proposed amendment shows that the wife/opposite party had caused mental agony to the husband/petitioner and the other members of the petitioner''s family including his mother.

Drawing my attention to paragraphs 22 to 24 of the revisional application, he submitted that he advised his client to file an application for amendment of the plaint for the purpose of converting the suit for restitution of conjugal rights to a suit for divorce since some subsequent events cropped up during pendency of the suit for the wrongful acts of the opposite party/wife which justify that the proposed amendment should not be denied on the ground that the commencement of trial has already begun - he added.

In support of his contention, he relied on a decision of this court in the case of Ajay Kumar Paul & Anr. v. Sushil Kumar Sah & Ors., reported in , 2013 (1) CLJ (Cal) 10 and pointed out that the court can allow the amendment of the plaint for shortening the litigation and there is judicial recognition to take more liberal approach and pragmatic view under the amendment of 2002, in case of a belated application for amendment of pleadings, despite the fact that such amendment will change the nature and character of the suit. He also relied on another decision of this Court in the case of Sasanka Sekhar Bhowmic & Ors. v. Meghnath Tanti & Ors., reported in 2012 (1) CLJ (Cal) 322 wherein similar view was expressed by this Court relying on a decision of the Hon''ble Apex Court Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., where the Hon''ble Apex Court was categorical in holding in the following terms, quoted herein:

"the Court should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss in caused to the other side or on the ground that the prayer for amendment was not a bonfide one".

Identical approach was expressed by another single Bench of this Court in an unreported decision in C.O. 1846 of 2014.

Taking into consideration the facts and circumstances of the case in the light of the observations as above, I firmly conclude that learned trial court was not justified in rejecting the prayer for amendment of the plaint.

Hence, the order impugned stands set aside and the learned trial court is directed to cause amendment of the plaint in terms of the prayer of the petitioner by his application dated 5th March, 2013.

However, liberty is given to the opposite party/wife to file additional written statement and thereafter fresh trial may be started by learned court below after framing of additional issues if he feels it necessary for proper adjudication of the suit.

I make it clear that the opposite party/wife herein will be entitled to a sum of Rs. 2,000/- as cost for additional trouble to be taken by her.

The revisional application is thus allowed.

I make no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.