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2000 DIGILAW 737 (MAD)

B. Jawahar Samuel v. J. Anney Alice Sharene

2000-07-28

K.SAMPATH

body2000
Judgment :- 1. The respondent in I.D.O.P. No. 52/95 on the file of the District Court, Kanniyakumari, is the revision petitioner. The said O.P. has been filed by the respondent herein seeking divorce of her marriage with the revision petitioner on the ground of adultery coupled with cruelty. The original petition was filed on 6-4-1995. The revision petitioner filed his counter on 18-2-19%. Thereafter, in 1997 the respondent filed an application in I.A. No. 246/97 seeking amendment of the petition. This application was opposed by the revision petitioner and the lower Court having allowed the application for amendment, the present revision petition has been filed. 2. The amendments sought for relate to deletion of sentences 2 and 3 in paragraph 18 of the petition and addition of another sentence, deletion of paragraph 14 and addition of a different paragraph 14, deletion of paragraph 15 and addition of a new paragraph in the place of paragraph 15 and in the cause of action column, the date 1-8-1993 to be deleted and the date 18-5-1994 to be substituted. 3. According to the revision petitioner, the proposed amendments have been sought for by the respondent to circumvent her earlier admissions and that if the amendments were allowed, he would be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the respondent and that the amendments change the cause of action and the ultimate aim of the respondent was to fill up the lacunae pointed out by the revision petitioner in his counter in this main petition. 4. The lower Court has found that what the respondent had sought for was to narrate the facts and events that had taken place from 1-3-1993 till the date of the filing of the main O.P. The lower Court has found that the details sought to be introduced are necessary for the main O.P. The lower Court also rejected the contention on behalf of the revision petitioner that in case the amendments were allowed, the application would go outside the jurisdiction of the lower Court. The lower Court relied on the following decisions: 1. Md. Salih Sahib v. T.C. Adam Sahib (AIR 1977 Madras 368 = 90 L.W. 435) 2. Savithri Ama Seethamma v. Aratha Karthy and others ( AIR 1983 SC 318 ) 3. Jai Jai Ram Monohar Lal v. National Building Material Supply. Gurgaon (AIR 1969 SC 1264) 4. The lower Court relied on the following decisions: 1. Md. Salih Sahib v. T.C. Adam Sahib (AIR 1977 Madras 368 = 90 L.W. 435) 2. Savithri Ama Seethamma v. Aratha Karthy and others ( AIR 1983 SC 318 ) 3. Jai Jai Ram Monohar Lal v. National Building Material Supply. Gurgaon (AIR 1969 SC 1264) 4. Panchdeo Narain Srivastava v. KM. Jyoti Sahay ( AIR 1983 SC 462 ) The lower Court has also found that the revision petitioner, after the amendments are carried out, would get a further opportunity to file an additional counter and that when the respondent got into the box, if the main petition lacked in material particulars, it would not be possible for her to speak to the details. 5. So far as paragraph 14 is concerned, the respondent has given the date on which she came to her parents house at Nagercoil as 24-12-1992. It is sought to be corrected as 24-12-1994 and the period during which the parties lived as husband and wife at Nagercoil to be corrected as the period from 24-12-1993 to 27-12-1993 instead of 1-3-1993. It is not disputed that the details now sought to be introduced find a place in the first information report filed by the respondent before the police. These details as has been rightly found by the lower Court are necessary for elucidating her stand. 6. The learned counsel for the revision petitioner strenuously contended that the amendments sought for by the respondent changed the cause of action and were intended to fill up the lacunae pointed out in the main counter to the petition filed by the respondent for divorce. The learned counsel relied on the following decisions: 1. A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation ( AIR 1967 SC 96 ) 2. Kanailal Das and another v. Jiban Kanai Das and another (AIR 1977 Calcutta 189) 3. Sri Santosh Kumar Hui v. Sri Prakash Kumar Palit and others (AIR 1995 Calcutta 381) and 4. C. Muthupandian v. Ramasamy Thevar (AIR 1995 Madras 277). 7. A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation ( AIR 1967 SC 96 ) 2. Kanailal Das and another v. Jiban Kanai Das and another (AIR 1977 Calcutta 189) 3. Sri Santosh Kumar Hui v. Sri Prakash Kumar Palit and others (AIR 1995 Calcutta 381) and 4. C. Muthupandian v. Ramasamy Thevar (AIR 1995 Madras 277). 7. In the first of the decisions relied on by the learned counsel it has been held that, “amendment of pleadings introducing new case cannot be allowed if suit on such case is barred and that in the matter of allowing amendment of pleading the general rule 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 the new cause of action is barred. However, where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the expiry of the statutory period of limitation.” 8. In the instant case, there is no question of limitation involved. It cannot also be said that there is an addition of a new cause of action or that a different case is raised. The Supreme Court has gone to the extent of saying that when the amendment amounts to a different or additional approach, such an amendment has to be allowed even when a new suit would be barred. This decision, in my view, does not help the case of the revision petitioner. 9. The decision of the Calcutta High Court in Kanailal Das and another v. Jiban Kanai Das and another (AIR 1997 Calcutta 189) is to the effect that substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject matter of or controversy in the suit is not permissible. The decision of the Calcutta High Court in Kanailal Das and another v. Jiban Kanai Das and another (AIR 1997 Calcutta 189) is to the effect that substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject matter of or controversy in the suit is not permissible. The Calcutta High Court has further observed that, “Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment and in general, the amendments should not cause prejudice to the other side which cannot be compensated in costs.” On facts, the Calcutta High Court held that, “there is no substitution of new case in place of original one and there was no change in respect of the real nature of controversy or the subject matter of the suit.” Same is the position here also. There is no change in respect of the real nature of the controversy. The respondent has sought for divorce on the ground of adultery coupled with cruelty. This ground is not given up and no new ground is sought to be introduced by amendment. There is no change in respect of either the nature of the controversy or the subject matter of the proceedings. There is no new case introduced. 10. In another Calcutta case reported in Sri Santosh Kumar Hui v. Sri Prakash Kumar Palit and others (AIR 1995 Calcutta 381) where the suit was filed for specific performance of contract, amendment was sought to introduce a right of pre-emption. It was held that, “the right of pre-emption did not flow from the alleged contract between the parties, that the amendment sought for was inconsistent and contradictory and therefore could not be allowed.” This case, in my view, has no application to the facts of the present case. 11. In the decision by a learned single Judge of this Court in C. Muthupandian v. Ramasamy Thevar (AIR 1995 Madras 277) in a suit for declaration that the document in question was only a deed of mortgage and not a sale deed, an application was filed for amendment of plaint stating that the said document was void and alternative prayer was also made for declaration to that effect. It was held that the application was liable to be dismissed when in support of such alternative prayer, new set of facts was pleaded, namely that another document was also registered on the same day by the parties which was a bogus document whereby the defendant had purchased some property in the name of the plaintiff and that the plaintiff had no connection with the said transaction. Only if the said document was proved to be a bogus one as pleaded in the proposed amendment the plaintiff could succeed in the above said alternative prayer and therefore it was clear that a new cause of action was being set up by the proposed amendment. The learned Judge held that the application for amendment could not be granted. In coming to that conclusion the learned Judge relied on the decision in A.K Gupta & Sons v. Damodar Valley Corporation already referred to. 12. It is now well established that, “all amendments ought to be allowed at any stage of the proceedings which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused: to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” (Kishandas Rupchand and another v. Rachappa Vithoba Shilwant and others (I.L.R. 33 Bombay 644) 13. It has been held in LJ. Leach and Co. Ltd. and another v. Messrs. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” (Kishandas Rupchand and another v. Rachappa Vithoba Shilwant and others (I.L.R. 33 Bombay 644) 13. It has been held in LJ. Leach and Co. Ltd. and another v. Messrs. Jardine Skinner and Company ( AIR 1957 SC 357 ) that, “it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affecl the power of the Court to order it, if that is required in the interests of justice.” 14. In Nichhalbhai Vallabhai and others v. Jaswantlal Zinabhai and others ( AIR 1966 SC 997 ) the Supreme Court observed that, “the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits and that if the amendment were refused the plaintiff would have to bring another suit. It is well known canon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together.” 15. In Gaganan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990-I SCC 166) the principle has been reiterated that the interests of justice should be the criterion. 16. In Kenchegowda v. Siddegowda Motegowda (1994-4 SCC 294) the Supreme Court held that, “when causes of action and reliefs are different, no amendment can be allowed. It cannot be said in the instant case that there is any change of cause of action or the relief sought for is different. Ultimately, the object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistakes and punishing for mistakes is, of course, not administration of justice. (A.K. Guppta and Sons Ltd. v. Damodar Valley Corporation ( AIR 1967 SC 96 ). 17. Ultimately, the object of Courts and rules of procedure is to decide the rights of parties and not to punish them for their mistakes and punishing for mistakes is, of course, not administration of justice. (A.K. Guppta and Sons Ltd. v. Damodar Valley Corporation ( AIR 1967 SC 96 ). 17. In Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon ( AIR 1969 SC 1267 ) it has been held that, “a party cannot be refused relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, caused injury to his opponent which may not be compensated for by an order of costs.” 18. It has no doubt been held in Smt. Ganga Bai v. Vijay Kumar and others ( AIR 1974 SC 1126 ) that, “the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of juustice, the law of limitation notwithstanding. But the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.” 19. It has been held by a Division Bench of this Court in T.T.K. Pharma Ltd. v. Ag. Robapharam (1998-II CTC 108) that. “as a cardinal rule, ordinarily, amendment of pleadings is permissible at any stage of the proceedings provided it does not (i) change the nature: (ii) lakes away any right accrued in favour of opposite party; or (iii) causes substantial prejudice “ 20. The lower Court has found that by reason of the amendment the revision petitioner is not in any way handicapped and the amendment had been sought for to avoid unnecessary delay being caused during trial when objections could be raised that the party is leading evidence for which no basis has been laid in the pleadings. It has also been found by the lower Court that absolutely no prejudice or hardship would be caused to the revision petitioner, when its discretion is exercised 21. It has also been found by the lower Court that absolutely no prejudice or hardship would be caused to the revision petitioner, when its discretion is exercised 21. In P. Jayabaskar and others v. R. Saraswathi and others (1999-3 LW 396) it has been held that, unless it is found as illegal or capricious, ordinarily, under Section 115 of the Code of Civil Procedure, this Court will not interfere. 22. The lower Court is not shutting out the revision petitioner. It is open to raise all conceivable objections to the averments in the amended plaint by filing necessary additional written statement. The trial is not yet commenced. The matter has been pending for five years now. This is a case where one of the spouses wants to separate and the question should not be allowed to hang fire for a long time. In the interests of the parties themselves a quietus should be given to the matter and the parties should know ere long as to where they are placed. In as much as it is held that in the amendment sought for no new cause of action comes into existence and no prejudice is caused to the revision petitioner, the decision of the lower Court does not warrant interference. 23. The Civil Revision Petition fails and it is dismissed. There will be no order as to costs. Consequently, the stay petition C.M.P. No. 32/2000 is closed.