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Punjab High Court · body

2000 DIGILAW 1426 (PNJ)

Neelam Maan v. Charanjeet Singh Maan

2000-11-22

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. - This is revision filed by Smt. Neelam Mann (wife) against the order of Additional District Judge, Ambala dated 9.5.2000 whereby he allowed the respondents (husband) to amend his petition filed under Section 10 of the Hindu Marriage Act (hereinafter referred as Act) for judicial separation into one under Section 13 of the Hindu Marriage Act (for the divorce) subject to payment of Rs. 500/- as costs. 2. Husband filed petition under Section 10 of the Act for judicial separation against the wife on the ground of cruelty. During the pendency of the petition for judicial separation, the husband made an application under Order 6 Rule 17 CPC whereby he prayed to the Court to permit him to amend his petition for judicial separation into one for divorce under Section 13 of the Act. It was alleged in the application that after filing of the petition for judicial separation, they had entered into compromise and in the wake of that compromise, the wife stayed with him for about four months. On 9.9.98, when he was away on some official work, her father took her secretly without his knowledge to his house at Mohali. Thereafter, she filed complaints against him (husband) with intent to harm him and his old parents in false cases of dowry. He was thinking of withdrawing this petition for judicial separation but in view of the subsequent conduct of the wife, he thought that he should convert this petition into one under Section 13 of the Act on the ground of cruelty. 3. Wife opposed this application. She denied that there was any compromise. She also denied the charge of cruelty against her. It was urged that the proposed amendment would alter the nature of the relief claimed originally and no amendment could be allowed the effect of which was change in the nature of the relief sought originally. 4. Vide order dated 9.5.2000, Additional District Judge, Ambala allowed this application. He allowed him to amend the petition subject to payment of Rs. 500/- as costs. 5. Learned counsel for the wife-petitioner submitted that the respondent (husband) had initially sought judicial separation under Section 10 of the Act on the ground of cruelty. 4. Vide order dated 9.5.2000, Additional District Judge, Ambala allowed this application. He allowed him to amend the petition subject to payment of Rs. 500/- as costs. 5. Learned counsel for the wife-petitioner submitted that the respondent (husband) had initially sought judicial separation under Section 10 of the Act on the ground of cruelty. He could not be allowed to convert that petition for judicial separation into one under Section 13 of the Act for divorce through amendment because such amendment, if allowed would permit him to introduce a new cause of action and a new relief. Initially, he had claimed judicial separation on the ground of the cruelty and through amendment he had sought to claim divorce, which is a greater relief. It was submitted that through amendment, the relief claimed could not be greater than the relief originally claimed. It was submitted that it is true that amendment can be allowed at any stage of the proceedings for the purpose of determining the real question of controversy between the parties but it is equally true that such amendment should not be based on new facts and new cause of action and at the same time amendment should not cause prejudice to the order side. If amendment amounts to merely a different or additional approach to the same facts, the amendment can be allowed even after the expiry of the statutory period of limitation. In support of this contention, he drew my attention to Mettu Naresh Kumar Reddy v. Nellore Ramamma, 1997(2) Civil Court Cases 569 (A.P.) where it was held that "amendment should not be based on new facts and new cause of action." He submitted that in this case, the respondent in his wisdom asked for judicial separation under Section 10 of the Act in the beginning. During the pendency of the petition, he sought to claim the relief of divorce on the same ground of cruelty, which is not permissible. 6. It was submitted that in the garb of amendment, the respondent has sought to bring an altogether new petition in substitution of his original petition inasmuch as in the new petition are contained the alleged further acts of cruelty resulting from the facts and causes of action occurring after 16.4.97 i.e. after the institution of the original petition. 6. It was submitted that in the garb of amendment, the respondent has sought to bring an altogether new petition in substitution of his original petition inasmuch as in the new petition are contained the alleged further acts of cruelty resulting from the facts and causes of action occurring after 16.4.97 i.e. after the institution of the original petition. He drew my attention to Sushi Bhusan Banerjee v. Tulsi Charan Basu and others, AIR (37) 1950 Calcutta 107 where, it was held that "no amendment can be allowed, which if allowed would introduce an entirely new cause of action." 7. In Sushi Bhusan Banerjees case (supra), the plaintiffs case was that the defendant-petitioner erected a building on his premises in contravention of the rule regarding side space. The rule then in existence provided that there should be a three feet side space. In 1937 the rule was amended and it prescribed a four feet wide space. Before the new rule had been introduced the defendant had obtained sanction of the Tollygunge Municipality and had erected the first storey of his building in accordance with these rules. In 1946, the defendant erected a second storey in accordance with the old plan which had provided for two storied building and had practically finished construction when the present suit was instituted against the defendant by the plaintiffs alleging a breach of the rule regarding side space. In November, 1947 for the first, time the plaintiffs applied for an amendment of their plaint. They alleged that not only had the side space rule been infringed but that the defendant had also infringed the rule regarding back space and they wished to amend their plaint by adding that the defendant had infringed the rule regarding back space. The defendant opposed this amendment on the footing that it introduced an entirely new cause of action. The learned Munsif allowed amendment. High Court set aside the order of the Munsif allowing the amendment holding that entirely new cause of action could not be introduced through amendment." He drew my attention to Gorantla Kondalarayudu v. M/s. Marvel Organics, 1998(2) Civil Court Cases 465 where it was held that "no amendment of pleadings can be allowed if it will result into the introduction of the inconsistent and new facts." 8. It was submitted that initially the respondent had claimed judicial separation on the ground of cruelty. It was submitted that initially the respondent had claimed judicial separation on the ground of cruelty. He cannot be allowed to urge any more instances of cruelty that allegedly arose during the pendency of the petition for judicial separation and claim divorce. It was submitted that if the proposed amendment is allowed, that will prejudice the petitioner, inasmuch as, whereas earlier, she would have to rebuff the petitioners claim to a lesser relief. If the proposed amendment is allowed, she would have to rebuff his claim to a greater relief. In case, relief for judicial separation is allowed, there would not be that threat to their marriage, which there would be, if marriage is dissolved by the decree of divorce. Relief claimed is not based on old facts. It is based on new facts, which are sought to be introduced through amendment. 9. Learned counsel for the respondent, on the other hand, submitted on the strength of the observations of the Privy Council in Ma Shew Mya v. Maung Mo Hnaung, AIR 1922 PC 249 that "all rules of courts are nothing but provisions intended to secure the proper administration of justice, that they should be made to serve that purpose and that powers of amendment should be liberally exercised." Learned counsel for the respondent submitted that events subsequent to the institution of the suit so far they are in consonance with original cause of action, should be permitted to be brought on record by way of amendment. This would help in complete determination of issues as well as would avoid unnecessary multiplication of the litigation." In support of this submission, he drew my attention to Kishan Singh v. Krishan Lal Bhatia, 1999(2) RCR(Civil) 437. It was submitted that if the proposed amendment is not allowed, the respondent will have to bring another petition under Section 13 of the Act for divorce. It was submitted that there would thus be unnecessary multiplicity of litigation. If the controversy between the parties can be decided once for all in the same litigation, they should not be dragged to another litigation. It was submitted that ground of cruelty has already been pleaded. In support of this ground, additional facts have to be pleaded. Pleading of additional facts should be allowed through amendment. It was submitted that all amendments necessary to determine the questions in controversy should be allowed. It was submitted that ground of cruelty has already been pleaded. In support of this ground, additional facts have to be pleaded. Pleading of additional facts should be allowed through amendment. It was submitted that all amendments necessary to determine the questions in controversy should be allowed. Duty of the Court is not to punish them for mistakes. if any. If amendments are necessary to determine the questions in controversy, these must be allowed. In support of this submission, he drew my attention to Suraj Mal v. State of Haryana, 1999(2) RCR(Civil) 408. 10. It was submitted by the learned counsel for the respondent that this amendment should be allowed because on the ground of cruelty, judicial separation can be claimed as also divorce and when the respondent could claim the relief of divorce on the ground of cruelty in the beginning, amendment should not be refused to him when he wants to plead more instances of cruelty and claim divorce. It was submitted that there is nothing wrong if the proposed amendment had been allowed by the learned trial court when the facts in support of the reliefs claimed have not been altered. Foundation of the case has remained unaltered. In support of this contention, he drew my attention to J.P. Sharma v. Shrimati Shashi Bala, 1979 All India Hindu Law Reporter 474. In this case, the husband had filed an application for judicial separation under Section 10(1)(b) of the Hindu Marriage Act against the wife on 15.9.71. His petition for judicial separation was dismissed by learned Single Judge of the Delhi High Court. He filed LPA against the judgment of the learned Single Judge. During the pendency of the LPA, the Hindu Marriage Act, 1955 was amended by the Marriage Laws. Amendment Act, 1976 through which vital changes were made in the Act. Ground of judicial separation and divorce were liberalised. Section 10 of the Act provided for judicial separation on the ground of cruelty. After amendment on the ground of cruelty, divorce was also provided. By amendment, on the erstwhile ground of cruelly, petition for divorce could also be filed. In this case, the proposed amendment could not be allowed because the proposed amendment is based on facts that allegedly came into existence after the institution of the divorce petition. After amendment on the ground of cruelty, divorce was also provided. By amendment, on the erstwhile ground of cruelly, petition for divorce could also be filed. In this case, the proposed amendment could not be allowed because the proposed amendment is based on facts that allegedly came into existence after the institution of the divorce petition. Faced with this position, learned counsel for the respondent submitted that proposed amendment was allowed on payment of Rs. 500/- as costs. Petitioner became barred from contesting the allowing of the proposed amendment when costs were accepted. 11. Learned counsel for the petitioner submitted that costs were never offered nor accepted. In the order dated 1.6.2000 which reads as follows:- "Fresh power of attorney on behalf of respondent filed. Amended petition filed, Copy given. An application under Section 19 of the H.M. Act has also been filed by the learned counsel for the respondent. Copy given to the other side. Now to come up on 20.7.2000 for filling written statement and reply to the application, "Costs paid." 12. The words "costs paid" were introduced afterwards after the order had been dictated and signed by the Judge by the Stenographer. It was submitted that no costs were offered or paid by any one to the petitioner or to her counsel on 1.6.2000. It was submitted that these words "costs paid" were inserted and typed in the space above the signature of the learned Additional District Judge after he had signed it as the spacing between the last two lines formation of letters and the slant in the alphabet letters of words "costs paid" clearly reveal that these words have been inserted by the typist in a separate act where the pressure on the alphabet keys is deliberate around the point of insertion. Learned counsel for the respondent submitted that learned Additional District Judge went into this allegation of the petitioner and found no merit in it and refused to make any correction in the order dated 1.6.2000. Learned counsel for the petitioner submitted that he has filed separate revision namely Civil Revision No. 3536 of 2000 against the order of the Additional District Judge dated 14.8.2000 whereby he had refused to make correction in the order dated 1.6.2000. Learned counsel for the petitioner submitted that he has filed separate revision namely Civil Revision No. 3536 of 2000 against the order of the Additional District Judge dated 14.8.2000 whereby he had refused to make correction in the order dated 1.6.2000. Learned counsel for the petitioner submitted that Shri Jassi Anand, Finger Print and Handwriting Expert is of the opinion that on the zimni order dated 1.6.2000, the words "costs paid" have been typed out afterwards. It was submitted that he was given cogent reason for his opinion. I dont think we should go into the merits or otherwise of this allegation of the petitioner. Suffice it to say, the respondent could not have been allowed to incorporate the proposed amendment as the proposed amendment would have the effect of changing the cause of action altogether based on new facts. On the old facts pleaded in the original, petition, the Court in its discretion may not feel like granting the relief of divorce, though on the ground of cruelty, relief of divorce can be claimed, relief of judicial separation can also be claimed. On the facts originally pleaded, Court may not view that act of cruelty that grave as to dissolve marriage by decree of divorce. To recapitulate after amendment of the Hindu Marriage Act on the ground of cruelty, judicial separation can be claimed, divorce can also be claimed. 13. For the reasons given above, this revision is allowed. Civil Revision No. 3536 of 2000 is disposed of with the observations that for going into the merits of the order allowing amendment, this question is not required to be gone into whether the costs had been accepted because acceptance of costs would not authorise such amendment of the petition, which is against the law as to amendment of pleadings. Revision allowed.