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2000 DIGILAW 559 (KAR)

Shobha v. N. Srinivasa

2000-08-07

H.N.TILHARI

body2000
ORDER Harinath Tilhari, J.—This revision petition is directed against the order dated 2.3.1999 in M.C. No. 3 of 1997 where by the learned Principal Civil Judge, Kolar, has been pleased to allow the application for amendment of the petition for divorce and to add the following as paragraph 2 (a); The Respondent's attitude was not proper and the conduct, demeanour and the treatment of the Respondent to the Petitioner is nothing but cruelty and the Respondent made false defamatory, malicious, baseless allegations against the Petitioner alleging that the Petitioner is demanding dowry, as a matter of fact that the Respondent attempted to kill the Petitioner. In view of this attitude of the Respondent, the Petitioner has sustained mental pain, sufferings and agency, as such, it has become highly impossible to live together as husband and wife in the said surcharged atmosphere, on the ground of cruelty the Petitioner is entitle for divorce. 2. The learned Counsel appearing for the revision Petitioner contended before this Court that the order allowing the amendment is illegal as the amendment sought has been an after thought and introduces new cause of action which was not in existence at the time of filing of the petition and thus resulting the change of cause of action. The learned Counsel further contended that the amendment being malafide and should not have been allowed. 3. The above contentions of the learned Counsel for the revision Petitioner has hotly been contested by the learned Counsel for the Respondent. 4. It has been contended by the learned Counsel for the Respondent that the petition for divorce has been filed by the husband on the ground of cruelty under Section 13 of the Hindu Marriage Act 1955. No doubt the evidence has been adduced and the claimant had pleaded illtreatment by his wife and alleged the physical, and mental torture and agony was being caused. In order to elaborate and amplify the plea his amendment was necessary and sought. Therefore, the Court below did not commit any error either in law or fact or of jurisdiction in allowing the amendment. 5. I have applied my mind to the above contentions advanced by the learned Counsels appearing for the parties. 6. In order to elaborate and amplify the plea his amendment was necessary and sought. Therefore, the Court below did not commit any error either in law or fact or of jurisdiction in allowing the amendment. 5. I have applied my mind to the above contentions advanced by the learned Counsels appearing for the parties. 6. It is well settled principle of law of amendment of Order 6, Rule 17 of the Code of Civil Procedure that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments are to be and shall be allowed to be made as may be necessary for the purpose of final determining the real questions in controversy between the parties. The only rider is that no amendment which has the effect of making out a new case or new cause of action, should be allowed and especially when the original claim would have been time barred. I may make reference at this stage to the decision of the Privy Council in Charan Das and Others Vs. Amir Khan and Others, AIR 1921 PC 50 and the decision of their Lordships of the Hon'ble Supreme Court in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, AIR 1957 SC 363 . What is new case has also been considered in another decision of the Supreme Court in the case of A.K. Gupta and Sons Vs. Damodar Valley Corporation, AIR 1967 SC 96 wherein their Lordships of the Supreme Court laid down as under; The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. Weldon Vs. Neale, 1887 (19) QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause action or raise a different case, but amounts to not more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation see Charan Das vs. Amir Khan, 47 Ind App 255 ( AIR 1921 PC 50 ) and Garikapatti Veeraya Vs. N. Subbiah Choudhury, AIR 1957 SC 540 ; L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., AIR 1957 SC 357 . 7. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes, Cropper Vs. Smith, 1984 (26) Ch. D 700 and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand vs. Rachappa Vithoba ILR 1909 33 BOM 644, approved in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, AIR 1957 SC 363 . 8. The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the Plaintiff to succeed" as was said in cook Vs. Gill, 1873 (8) CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson vs. Unicos Property Corporation Ltd. 1962 (2) All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words"new case" have been understood to mean "new set of ideas" Dornan Vs. J.W. Ellis and Co. Ltd, 1962 (1) All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas tot he prejudice of any right acquired by any party by lapse of time. The expression new case as explained by their Lordships means new claim made on a new basis constituted by new facts. It means and is understood to mean according to their Lordships new set of ideas and liability (sic) is that no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. It means and is understood to mean according to their Lordships new set of ideas and liability (sic) is that no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. It is also to be taken note of that the expression cause of action in the context of the amendment application is not to be taken to mean every fact which is materially to be proved be entitle the Plaintiff to succeed. From the perusal of the decisions it comes out that if a plea had been taken and the said plea is there the particulars to amplify that plea can be given by furnishing material particulars. In fact, in the present case, the divorce has been sought on the ground of cruelty alleged on the part of the Respondent i.e., the present Petitioner. The amendment sought by the addition of paragraph 2(a), in my opinion as already been held by the trail Court is not introducing any new case or new cause of action. It is nothing but amplification of the plea taken in the petition for divorce. 9. In this view of the matter, the Court below did not commit any error either in law or fact nor any jurisdictional error in allowing the amendment application. No doubt, the Court below was called upon to allow the amendment at late stage when the evidence has been recorded. The case was fixed for arguments, then the Court below should have saddle the Respondent i.e., the present Petitioner in the divorce petition before it with terms as to cost. Therefore, the Court below, no doubt, acted illegally and with material irregularity in allowing the amendment saddling the Petitioner i.e., (Respondent) in the divorce petition with costs for amendment. But this illegality or irregularity is not of such nature that cannot be cured. 10. This Civil Revision Petition, as such, is allowed only to this extent. That so far as the order allowing the amendment application is concerned it is maintained, but it is subject to terms as to costs. The amendment shall be deemed to have been allowed with costs payable to defendant-revision Petitioner by the present Respondent i.e., the petition before the Court below to a sum of Rs. 1100/- (Rupees Eleven Hundred only). That so far as the order allowing the amendment application is concerned it is maintained, but it is subject to terms as to costs. The amendment shall be deemed to have been allowed with costs payable to defendant-revision Petitioner by the present Respondent i.e., the petition before the Court below to a sum of Rs. 1100/- (Rupees Eleven Hundred only). If the amendment has already been incorporated, it shall be taken into consideration at the time of hearing as effective amendment only after payment of costs of amendment imposed on the present Respondent i.e., the Petitioner in the divorce petition to the revision Petitioner. 11. The Civil Revision Petition is as such partly allowed viz., modifying the amendment order passed by the Court below making the amendment effective only on payment of costs. 12. The costs of this revision is made easy.