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2002 DIGILAW 173 (ORI)

Santosh Ku. Singh v. Ranjana Kumari Singh

2002-03-19

P.K.TRIPATHY

body2002
ORDER 19.3.2002. — Learned counsel for the petitioner produced xerox copy of the petition (pleadings) and xerox copy of the written statement. True copy has been attested by the learned counsel. Learned counsel for the opposite party does not dispute to authenticity of those documents. 2. Heard. 3. This Civil Revision is disposed of at the stage of admission on consent of both the parties and after hearing them at length. 4. The dispute between the parties is relating to exist¬ence and continuance of material relationship which is subject-matter of adjudication in Civil Proceeding No. 188 of 2000 pend¬ing in the Court of Judge, Family Court, Rourkela. Opposite party has sought for a decree of declaration that she is the legally married wife of the petitioner. She has also prayed for an order of injunction prohibiting the petitioner to marry one Rita Sing who has been described as opposite party No. 2 in that proceed¬ing. Opposite party instituted the above Civil Proceeding and advanced a case of her marriage with the petitioner on 21.3.1999 and subsequent desertion by the later. She has alleged that petitioner is negotiating for marriage with above noted Rita Singh. Accordingly she prayed for the above noted reliefs. In February, 2001, as stated by learned counsel for the petitioner, a written statement was filed by the petitioner denying to the relationship of husband and wife between him and the opposite party. Petitioner also stated in his written statement regarding his status as a married man prior to 21.3.1999. On the basis of such pleadings the proceeding was taken up for trial and in course of hearing, the father of one Soba Singh has been examined as a witness on behalf of the petitioner. It appears that in course of tendering evidence, petitioner asserted about his marriage with Soba Singh and perhaps in support of that plea he examined the father of Soba Singh in August, 2002 and thereafter filed an application to amend the written statement to insert the plea that ton 24.2.1999, petitioner married the said Soba Singh and on 4.2.2001, the ‘Gauna’ ceremony was performed and thereafter said Soba Singh is leading marital life with him. 5. 5. That application for amendment was rejected on 31.8.2001 by learned Judge, Family Court, Rourkela precisely on two grounds; viz., (i) the proposed amendment run inconsistent to the evidence which has been led from the side of the petitioner relating to his marriage with Soba Singh and (ii) this belated attempt to amend the written statement will cause prejudice to the opposite party (petitioner in the Court below). Learned Judge, Family Court, Rourkela also has recorded the finding that the core issue for decision being relating to ascertainment of i.e., existence or non-existence of marital status between the parties, therefore, the aforesaid plea is not relevant or conse¬quential and should not be permitted to be brought on record. That order is under challenge in this revision. 6. Learned counsel for the petitioner while lays stress on the relevancy and importance of the plea advanced in the proposed amendment, learned counsel for the opposite party supports the impugned order and in the process of resisting to the prayer for amendment places reliance on the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co., AIR 1977 S.C. 680 , Jagannath Sahoo and others v. Labanya Dei and others, A.I.R. 1981 Orissa 12, and Hindusthan Commercial Corpora¬tion, Cuttack and another v. Bank of Baroda, Cuttack, 55 (1983) C.L.T. 219. 7. In the case of M/s. Modi Spinning (supra) the apex Court, has propounded that an application for amendment should not be allowed when it has the effect of withdrawing an admis¬sion. In the case of Jagannath (supra) the prayer for amendment of the plaint was rejected on the ground of belated attempt in amending the plaint by bringing entirely new and alien facts which has no direct or indirect nexus with facts mentioned in the original plaint and when no evidence in that respect at the stage of trial was adduced by the plaintiff. In the case of Hindusthan Commercial Corporation (supra) prayer for amendment of the plaint by way of introducing new story was not permitted and in that respect, this Court observed that awarding of the cost is not adequate to permit such impermissible amendment. Because of involvement of facts and circumstances as noted above, and because of the following reasons this Court finds non-applicability of the above ratio as far as the present case is concerned. 8. Because of involvement of facts and circumstances as noted above, and because of the following reasons this Court finds non-applicability of the above ratio as far as the present case is concerned. 8. It is clear from the written statement that a specific assertion was not made by the petitioner in his written statement that prior to 21.3.1999 he had married to Soba Singh. But in paragraph 14 of the written statement, petitioner has clearly pleaded about his marriage with another (other than the opposite party) prior to 21.3.1999. Therefore, when he has pleaded about subsistence of an earlier marriage, it cannot be said that plea of marriage with Soba Singh is out and out an after-thought or inconsistent or contradictory to the pleas advanced in the writ¬ten statement. Keeping in view the pleadings of the parties the question as to whether petitioner was a married man and such marriage was subsisting by 21.3.1999 is not only a relevant but important issue. Therefore looking to the plea of the petitioner in paragraph 14 of his written statement either the opposite party should have asked for better particulars or the Family Court should have pressed into service provision in Order VI, Rule 5, Code of Civil Procedure (in short ‘the Code’) with appropriate direction to the petitioner and to strike down that part of his defence in the event of failure to provide such particulars. Without resorting to such legal remedies, the reasons assigned for rejecting the application for amendment cannot be said to have been done in lawful exercise of jurisdiction vested with the Court below. 9. The Court below rejected the application for amendment on another ground that father of Soba Singh having been examined as O.P.W. No. 2 has stated in his evidence that marriage of Soba Singh with the petitioner was solemnised on 24.2.1999 and Soba Singh accompanied the petitioner to his house thus the aforesaid evidence of the said witness amounts to an admission about non-performance of ‘Gauna’ mentioned in the proposed amendment and therefore the amendment is not permissible. The logic advanced by the learned Court below appears to be entirely erroneous inasmuch as by the date of adducing such evidence no such pleading was there and therefore, the Judge, Family Court, Rourkela should not have permitted recording of evidence on a fact which was beyond the specific pleading. The logic advanced by the learned Court below appears to be entirely erroneous inasmuch as by the date of adducing such evidence no such pleading was there and therefore, the Judge, Family Court, Rourkela should not have permitted recording of evidence on a fact which was beyond the specific pleading. Even if such evidence was permitted to be adduced because of plea advanced in paragraph 14 of the written statement then also the above noted answer of O.P.W.No. 2 prima facie, does not amount to an admission of non-performance of ‘Gauna’ custom. Whether that amounts to a contradiction or omis¬sion or otherwise non-acceptable is a matter which should be taken up at the stage of assessing and appreciating evidence. It will be prematured as well as prejudicial if an opinion in that respect shall be expressed by this Court at this stage of the proceeding. On that score also the impugned order is found legal¬ly not sustainable. 10. Learned counsel for the opposite party states that in the event of allowing the amendment essentially it will require adducing further evidence by the petitioner and rebuttal evidence by the opposite party. In other words, if the amendment is al¬lowed that will result in delay and harassment to the opposite party. It is to be seen whether that harassment and delay is not compensable if the prayer for amendment is entertained. In that context, this Court feels that when the petitioner’s case as per his written statement clearly spells out about the marital status by the alleged date of marriage to the opposite party the fact which he pleads in the shape of amendment of written statement, is a relevant circumstance, which is required to be considered while adjudicating the dispute. When the proposed amendment stands at that footing the delay and harassment which will be caused for examining further witnesses can be compensated by payment of costs. 11. Thus this Court records that learned Judge, Family Court, Rourkela did not properly exercise the jurisdiction vested on him and without due application of mind to the facts and provision of law, he rejected the application under Order VI, Rule 17 of the Code illegally. Hence the impugned order is set aside and the application for amendment is allowed subject to payment/deposit of a cost of Rs. Hence the impugned order is set aside and the application for amendment is allowed subject to payment/deposit of a cost of Rs. 1500/- (one thousand and five hundred) by 5th of April, 2002 (as suggested by the learned counsel for the petitioner). In that respect, receipt be filed in the Court below by that date. In the event of non-payment of cost by the aforesaid date this order shall be treated as non est and the proceeding in the Court below shall proceed accordingly. 12. Learned counsel for the opposite party states that direction may be issued for early disposal of the civil proceed¬ing. Learned counsel for the petitioner has no objection to that submission. In view of that it is directed that after 5th of April, 2002, the further hearing of the case shall be taken up expeditiously and on day-to-day basis unless for sufficient rea¬sons, learned Court below will allow adjournment for a longer period. Any application for adjournment, if would be filed by the petitioner (opposite party No. 1 in the Court below) and if that shall be allowed then such adjournment shall not be for more than 15 days and that too subject to payment of cost of Rs. 500/- (five hundred) per adjournment. The Civil Revision is accordingly allowed. Civil revision allowed.