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2000 DIGILAW 33 (DEL)

HARISH CHANDER v. BHARTI

2000-01-18

B.K.RAMAMOORTHY

body2000
K. Ramamoorthy ( 1 ) THE plaintiff in the suit is the revision petitioner. He had filed the suit for a declaration thai the marriage between the plaintiff and the defendant was null and void. The petitioner filed, in the first instance, an application for amendment of the petition. When that was taken up for hearing/ the petitioner withdrew the same and the lower Court dismissed the amendment application as withdrawn imposing costs of Rs. 500. 00. That was complied by with the petitioner and the costs had been paid to the defendant. The order dated 1. 12. 1998 of the lower Court reads as under: "arguments heard on the application under Order 6 Rule 17, CPC. By this application, the petitioner wanted to bring on record the factum with regard to incorrect disclosure of the date of birth of the respondent. According to him further of the respondent. Dr. Rajinder Parkash, had given him wrong information about date of birth of the respondent as on 22. 9. 1971. However, it was alleged that petitioner came to know from reliable source i. e. , Council of Indian School Examination that date of birth of the respondent was shown as 22. 9. 1969. After reply was filed and certificates issued by Indian School Examination, copy of which has been placed on record which depicts that date of birth of the respondent was 22. 9. 1971 and in the face of denial of the allegations that the father of the respondent given her date of birth as 22. 9. 1971, learned Counsel for the petitioner wants to withdraw the said application. Hence, same is dismissed as withdrawn with costs of Rs. 500. 00. Now to come up for P. E. on 7. 1. 1999. The petitioner has filed an application under Order 6 Rule 17, CPC. Copy given. Let reply thereto be filed on next date. " ( 2 ) ON the day when the application for amendment was withdrawn, the second application was filed for amendment of the petition on the basis of materials gathered by the petitioner. ( 3 ) BY order dated 22. 2. 1999, the learned Additional Distri:t Judge dismissed the second application on the ground that the petitioner was precluded from filing the second application for amendment and it was an abuse of process of law. ( 3 ) BY order dated 22. 2. 1999, the learned Additional Distri:t Judge dismissed the second application on the ground that the petitioner was precluded from filing the second application for amendment and it was an abuse of process of law. The order reads as under: "arguments heard on the application under Order 6 Rule 17, CPC dated 1. 12. 1998 whereby petitioner seeks amendment of his petition by adding the fact that on 13. 5. 1998 he came to know through Smt. Savita - relation of the respondent, that respondent is elder in age by two years than the petitioner, and that the respondent was born on 23. 9. 1969 and not on 22. 9. 1971 as disclosed by her father during negotiation of marriage. It is further stated that petitioner also became doubtful as respondent also passed 10th Class examination in March, 1985 at the age of 13-1/2 years. It is further stated that facts about date of birth have also come to the know of the petitioner after inspection of the record of Birth and Death Registrar of Dehradun and record of the hospital, who in it has been stated that mother of the respondent gave birth to the child/respondent on 23. 9. 1969. The application has been opposed on the ground that earlier application filed on the same ground has been dismissed by this Court on 1. 12. 1998. It may be observed that in the rst application the petitioner had sought amendment of his plaint for bringing on record the fact that father of the respondent had disclosed the date of birth of the respondent as 22. 9. 1971 whereas her actual date of birth was 22. 9. 1969. At that he sought assistance to prove this fact on the basis of record of Council for Indian School Certificate Examination, New Delhi. Thereafter the respondent contested this application and placed on record certificate issued by Indian Council of Certificate which shows that date of birth of the respondent as shown in the said certificate is 22. 9. 1971. After this certificate was placed on record by the father of the respondent the petitioner sought withdrawal of that application. Accordingly same was dismissed as withdrawn with costs of Rs. 500. 00. 9. 1971. After this certificate was placed on record by the father of the respondent the petitioner sought withdrawal of that application. Accordingly same was dismissed as withdrawn with costs of Rs. 500. 00. Question which arises for consideration is whether the amendment which is sought to be brought on record by amendment, basically is the averments that a fraud was played by the respondent s father at the time of negotiation of marriage by disclosing her date of birth as 22. 9. 1971 instead of 22. 9. 1969. The present application is also on the same cause of action but with a different set of evidence. The petitioner is precluded from making a similar application on the same ground even if he now holds a different set of evidence in his possession. What is required to be seen is the nature of amendment sought for and not the evidence/documents in support of the proposed amendment keeping in view the basic purpose of the petitioner is to show that fraud was played upon by misrepresentation of facts. Allowing the petitioner to bring similar amendment on the basis of different set of evidence would be misuse of the process of the Court. The powers of the Court under Order 6 Rule 17, CPC is not meant for this purpose. Hence the application is rejected as barred by the principle of res judicata with no orders as to costs. Now to come up for PE on 21st and 22nd April, 1999. " ( 4 ) THIS order is challenged in the revision petition. ( 5 ) THE learned Senior Counsel for the petitioner, Mr. R. P. Bansal, submitted that the view taken by the learned Additional District Judge is not sustainable in law and the learned Additional District Judge should have disposed of the matter on merits. There was no question of any bar for the petitioner to file second application for amendment when the earlier one was withdrawn. ( 6 ) THE learned Counsel for the respondent, Mr. Surender Miglani submitted that under Order XXIII Rule 1, CPC, once an application for amendment was withdrawn by the applicant without any liberty having been granted by the Court, the petitioner was barred from filing a second application. The learned Counsel submitted that the second application was an abuse of process of law. The learned Counsel for the respondent, Mr. Surender Miglani submitted that under Order XXIII Rule 1, CPC, once an application for amendment was withdrawn by the applicant without any liberty having been granted by the Court, the petitioner was barred from filing a second application. The learned Counsel submitted that the second application was an abuse of process of law. The learned Counsel for the respondent, Mr. Surender Miglani relied upon the decisions of this Court in S. Narain Singh and Another v. M/s. Ram Gopal Madan Lal and- Others, AIR 1981 Delhi 88; and in Aftab Ahmad and Another v. Nasiruddin and Another, AIR 1977 Delhi 121. The learned Counsel also sought reliance on judgment of the Supreme Court in The Municipal Corporation of Greater Bombay v. Lata Panchnm and Others, AIR 1965 SC 1008 . ( 7 ) THE learned Counsel for respondent, Mr. Surender Miglani submitted that provisions of Section 141, CPC, the provisions of Order XXIII Rule 1, CPC would apply to application, and, therefore, the second application filed by the petitioner for amendment of the writ petition was barred. ( 8 ) IN S. Narain Singh and Another v. M/s. Ram Gopal Madan Lal and Others, (supra), a suit was filed for a declaration that there was no valid arbitration between the parties, and pending the suit an application under Order XXXIX Rules 1 and 2, CPC was filed. That application for injunction was dismissed. There was also a suit filed by the plaintiff in that case in another Court, where also an application for injunction was dismissed. Without being any change in the circumstances, a second application was filed under Order XXXIX Rules 1 and 2, CPC. The question was, whether the plaintiff could file a fresh application for injunction on the same grounds. This Court expressed the view: "under Sub-rule (4) a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. This Court expressed the view: "under Sub-rule (4) a plaintiff is precluded from instituting any fresh suit in respect of the claim withdrawn by him. Thus if a plaintiff withdraws a suit, he is not entitled to file a fresh suit on the same cause of action. Similarly if the plaintiff files an application for the grant of a temporary injunction and after notice to the opposite party who has filed a reply and during the course of arguments the plaintiff withdraw the application for temporary injunction, it appears that the plaintiff is debarred from instituting a fresh application unless there has been change of circumstances since the date of dismissal of the previous injunction application. Section 141 of the Code makes the procedure applicable to the suits to all proceedings in Court of Civil Jurisdiction. The proceedings for the grant of temporary injunction are proceedings in a Civil Court. Thus reading together Order 23 and Section 141 of the Code it appears that the present application for temporary injunction filed on 16th April, 1980 decided by the impugned order dated 15th July, 1980 is barred under Sub-rule (4) of Rule 1 of Order 23 of the Code. On this ground alone I do not find any merit in the present appeal and I hold that the application of the plaintiffs- appellants for the grant of injunction restraining the respondents from proceeding with arbitration proceedings is not maintainable. The appeal is, therefore, dismissed but with no order as to costs. " ( 9 ) THE ratio laid down in this case would not apply to the facts and circumstances of this case. ( 10 ) THE maintainability of a second application would depend upon facts and circumstances of each case. Section 141 of the CPC reads as under: "miscellaneous proceedings The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of Civil Jurisdiction. " ( 11 ) THOUGH the provisions of Order XXIII, CPC would not apply to applications in the light of the language of Section 141, that may be applied depending upon the nature of the application filed by a party and the circumstance under which the application was dismissed as withdrawn and the nature of the second application. " ( 11 ) THOUGH the provisions of Order XXIII, CPC would not apply to applications in the light of the language of Section 141, that may be applied depending upon the nature of the application filed by a party and the circumstance under which the application was dismissed as withdrawn and the nature of the second application. ( 12 ) IN Aftab Ahmad and Another v. Nasiruddin and Another, (supra), there was an order against the tenant in an application filed by the landlord imposing a condition to deposit rent and if the rent was not deposited, the defence of the tenant would be struck off. The tenant challenging that order, deposited the rents upto a particular point. The landlord had withdrawn the rents deposited by the tenant. In view of the order passed by the Appellate Authority staying all further proceedings, the tenant did not make the deposit of rents. Some time later, a second application was filed for striking out the defence of the defendant. On the facts and circumstances of that case, this Court took the view that the second application was barred. This Court observed:. "i now come to the alternative reasoning which have prevailed with the Rent Control Tribunal. As he says, this default took place prior to December, 1967. An application was moved by the appellants in November, 1967 for striking out the defence of the respondents. Thereafter, the respondents deposited the arrears of rent which were withdrawn by the appellants by means of a subsequent application some time in September, 1968. The application for striking out the defence was apparently dismissed for non-prosecution. The present application, which was filed in 1970, was filed on substantially the same ground as before, in fact all the defaults mentioned were before December, 1967. The learned Counsel for the appellants contends that as the proceedings were stayed upto 1970, the previous proceedings could not continue and therefore, the previous application was not pressed. I think this does not make any difference to the legal position. Once an application has been presented claiming a relief and it is not pressed and is dismissed, a subsequent application is barred. This I take it, is the effect of Order 23 Rule 1 read with Section 141 of the Code of Civil Procedure. I think this does not make any difference to the legal position. Once an application has been presented claiming a relief and it is not pressed and is dismissed, a subsequent application is barred. This I take it, is the effect of Order 23 Rule 1 read with Section 141 of the Code of Civil Procedure. I would, therefore, agree with the Rent Control Tribunal that having taken advantage of the first application to the extent of obtaining the arrears of rent from the respondents and then having withdrawn the rent, the appellants cannot proceed to get the defence struck out on the very same ground by a subsequent application. Furthermore, since December, 1967, the respondents have made subsequent deposits, all of them in time, and they have continued to deposit the rent upto date. Therefore, this does not seem to be a suitable case in which the defence should be struck out because of the very peculiar circumstances of the case. I would, therefore, dismiss the appeal and leave the parties to bear their own costs. It is to be seen that this eviction petition has been pending for a very long time and, therefore, should be decided as soon as possible. Parties are directed to appear before the Rent Controller on 19th March, 1976. " ( 13 ) HERE also, the ratio is not that once an application was withdrawn, even if there is any change of circumstances, the second application would be barred. ( 14 ) THE learned Counsel for the respondent, Mr. Surender Miglani submitted that in the plaint, as it originally filed, the plaintiff had come forward with a case of fraud on the part of the defendant. A few averments have been made in support of the case of fraud set up by the plaintiff. The plaintiff now, by filing the application for amendment, is trying to project a new case of fraud by seeking to introduce averments, which have absolutely no connection, whatsoever with the averments made in the plaint. The learned Counsel submitted that the application for amendment introducing new ground of fraud cannot be permitted and that is the ratio laid down by the Supreme Court in The Municipal Corporation of Greater Bombay v. Lata Pancham and Others, (supra ). ( 15 ) I am afraid, the learned Counsel for the respondent, Mr. The learned Counsel submitted that the application for amendment introducing new ground of fraud cannot be permitted and that is the ratio laid down by the Supreme Court in The Municipal Corporation of Greater Bombay v. Lata Pancham and Others, (supra ). ( 15 ) I am afraid, the learned Counsel for the respondent, Mr. Surender Miglani had not had hang of the facts of the case in the decision cited by him. The plaintiff in that case sought amendment of the plaint, which was filed in the appeal before the High Court. That was accepted by the High Court. The Supreme Court differed from the view taken by the High Court. While deciding the point, the Supreme Court observed: "it was urged before us by Mr. Setalvad that an entirely new case has been made out in the amendment and that the plaintiffs did so at the suggestion of the Court. In support of his contention, he also referred to the objections of Mr. S. V. Gupte before the High Court to the effect that the plaintiffs had not made an application for amendment of the plaint. He further relying upon a reference in the judgment, said that the amendment proposed by the plaintiffs was not found by the Court to be adequate and that it was at the instance of the Court that the plaintiffs proposed the amendment which now actually finds place as para 8a of the plaint. There appears to be good foundation for what Mr. Setalvad says but merely because an amendment was sought by the plaintiffs at the suggestion of the Court it would not be proper for us to disallow it unless there are grounds for holding that it was forced upon an unwilling party. That is, however, not the suggestion. For, the Court wanting to do justice may invite the attention of the parties to defects in pleadings so that they could be remedied and the real issue between the parties tried. There is, however, another ground and a stronger one which impels us to hold that the amendment should never have been allowed. That ground is that the plaintiffs are now making out a case of fraud for which there is not the slightest basis in the plaint as it originally stood. The mere use of the word mala fide in the plaint cannot afford any basis for permitting an amendment. That ground is that the plaintiffs are now making out a case of fraud for which there is not the slightest basis in the plaint as it originally stood. The mere use of the word mala fide in the plaint cannot afford any basis for permitting an amendment. The context in which the word mala fide is used in the plaint clearly shows that what the plaintiffs meant was that the order of the Corporation having been made in exercise of arbitrary powers and having the result of adversely affecting the plaintiff s right under Article 19 (1) (f) and (g) of the Constitution amounted to an abuse of the provisions of the Act and was thus made mala fide. " I fail to see how this could be pressed into service by the learned Counsel for the respondent. ( 16 ) IN view of the foregoing, I am of the view that the second application filed by the plaintiff/petitioner for amendment of the plaint is competent, and the learned Additional District Judge should have considered the application on merits. Accordingly, the revision petition is allowed. ( 17 ) THE learned Additional District Judge is directed to consider the application for amendment on merits. The learned District Judge shall direct the matter to be heard by some other learned Additional District Judge. ( 18 ) THE parties shall appear before the learned District Judge on the 9th of February, 2000 for the allotment of the work to a learned Additional District Judge. ( 19 ) THERE shall be no order as to costs.