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2004 DIGILAW 962 (MAD)

S. Prince v. L. Santhi

2004-07-23

P.SATHASIVAM

body2004
Judgment :- Defendant in O.S.No. 177 of 2000 on the file of District Munsif, Uthagamandalam, aggrieved by the order dated 9-10-2001 made in I.A.No. 460 of 2001, has filed the above Revision. 2. The suit was filed by the plaintiff/respondent herein for declaration, to declare that herself (plaintiff) and defendant are husband and wife and for permanent injunction to restrain the defendant from marrying one Ms.Rani and another woman. The petitioner/defendant filed a written statement contesting the claim of the plaintiff. Pending the suit, the plaintiff/respondent herein filed I.A.No.460 of 2001 praying to amend the prayer in the suit by adding consequential prayer, namely, declaration declaring that Master Vignesh is the son of the defendant. The said application was resisted by the defendant/petitioner herein by filing a counter statement. The learned District Munsif by order dated 9-10-2001, allowed the said application for amendment, hence the present Revision. Though the respondent was duly served notice from this Court, she has not chosen to engage a counsel to contest the same. 3. The only point for consideration in this Revision is, whether the learned District Munsif is right in allowing the amendment petition as claimed by the plaintiff. 4. It is seen from the plaint averments that the plaintiff and the defendant are living together as husband and wife for the last 15 years and that a boy was born to them. It is also her claim that he had deserted her and promised to marry her, but, however, did not keep up the promise and that since they have been living together as husband and wife, a declaration is sought for and also alleged that the defendant is making arrangements to marry one Rani, daughter of Clara Williams by suppressing the relationship between the plaintiff and the defendant and also suppressing the fact that they have a son by name V. Vignesh. In the written statement the defendant/petitioner herein has stated that he had nothing to do with the alleged son and that he was not living with the plaintiff at any point of time. It is also raised that the suit itself is not maintainable and the aim of the plaintiff is to only black-mail and harass the defendant. 5. In the written statement the defendant/petitioner herein has stated that he had nothing to do with the alleged son and that he was not living with the plaintiff at any point of time. It is also raised that the suit itself is not maintainable and the aim of the plaintiff is to only black-mail and harass the defendant. 5. In I.A.No.460 of 2001 filed for amendment of the plaint it is stated that by over sight and mistake she has not prayed for any relief in respect of her son Vignesh and that it is just and necessary to amend the plaint so as to include a prayer for declaration that her son Vignesh born to them. The said application was resisted by the petitioner herein-respondent therein stating that there was no marriage at all between himself and the defendant/respondent herein, and hence there was no question of Vignesh being declared as his son. It is also stated that when the suit was taken up for trial, the plaintiff was cross-examined in detail and it was only thereafter the present application for amendment came to be filed and an objection was raised that the relief sought for is totally different. 6. A perusal of the impugned order shows that the learned District Munsif has held that the application for amendment can be filed at any point of time and no prejudice would be caused to the defendant/petitioner herein by ordering the amendment. Mr. S.K. Rakhunathan, learned counsel for the petitioner vehemently contended that the Court below has totally lost sight of the fact that on the date of birth of the child to the respondent herein, she was already married and that her marriage was subsisting. He also contended that the Court below failed to note that the relief of declaration has always to be supported by necessary pleadings and that in view of the fact that there was no pleading whatsoever, the question of ordering amendment did not arise at all. According to him, the relief of declaration in respect of respondent's son will introduce new cause of action and, therefore, the Court below ought not to have ordered the amendment. It is seen from the records that the suit was in the stage of part heard even at the time of filing of I.A.No.460/2001 filed for amendment of the plaint. According to him, the relief of declaration in respect of respondent's son will introduce new cause of action and, therefore, the Court below ought not to have ordered the amendment. It is seen from the records that the suit was in the stage of part heard even at the time of filing of I.A.No.460/2001 filed for amendment of the plaint. It is also seen that the respondent/plaintiff has been examined and cross-examined in detail. Only at this stage the said petition came to be filed and the learned counsel for the petitioner is right in contending that in order to cover up the lapse and fill up the lacuna, the amendment is sought for. It is also relevant to note that the amendment sought for is with regard to a person who is not a party to the proceedings; accordingly as rightly contended by the learned counsel for the petitioner, such amendment is beyond the scope of the suit. Admittedly, the minor son is not a party in the said proceedings. Though petition for amendment can be filed at any stage, in the case on hand, admittedly, the application for amendment was made only after cross-examination of the plaintiff as P.W.1. On going through the dispute between the parties, namely, plaintiff and the defendant as well as the application for amendment and considering the fact that the amendment sought for is with regard to a person who is not made a party to the proceedings and also of the fact that the said application was made at a belated stage i.e., after commencement of the trial, I am satisfied that the Court below has committed an error in allowing the said application. 7. Under these circumstances, the fair and final order dated 9-10-2001 passed in I.A.No. 460 of 2001 in O.S.No. 177 of 2000 is set aside and the Civil Revision Petition is allowed. No costs. Consequently, C.M.P.No. 21107/2001 is closed.