Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 3053 (PNJ)

Bimlla Bhagat v. Suresh Bhagat

2006-07-31

VINOD K.SHARMA

body2006
JUDGMENT Vinod K. Sharma, J. - The present revision petition has been filed against the order dated 17.8.2004 vide which the Additional District Judge, Jalandhar has rejected the application moved by the petitioner-wife under Order 6 Rule 17 of the CPC for amendment of the written statement. 2. The petitioner wife by way of amendment has sought to plead that during the marriage, the respondent-husband had developed illicit relations with one Sunita and solemnized a second marriage with her by converting to Muslim religion from Hindu religion on 4.2.2002. The petitioner also sought to assert that Nikah Nama was entered in the record of Lakhdat Bajar and an intimation to this effect was made through writing dated 25.6.2002 to the Administrator, Department of Aukh, Residency Road, Jammu by Charan Dass. The petitioner also sought to prove that the respondent herein cohabited with Smt. Sunita in the house of Dr. Sudesh Nauharia at Jamalpur, Ludhiana and started working in the Nauharia Hospital, Ludhiana. The petitioner further averred that she came to know about these facts from Sudesh Nauharia, who is sisters husband of the petitioner. It was further stated in the application that a case under Section 107/151 Criminal Procedure Code was also registered and that the respondent-husband had remained absent from duty and ultimately he was dismissed from service by J&K Government. This fact was published in the newspaper on 10th of December 2003. This amendment was sought on the ground that these facts came to the knowledge of the petitioner after filing of the written statement and accordingly she sought amendment to insert these facts by adding para 3 as preliminary objection and also wanted to amend 3rd line of para 5 of the written statement. An application was also filed by her under Section 151 of the CPC for correction of the name in para 2 of the amended application as Satish Nauharia instead of Sudesh Nauharia. similarly the name of Sudesh Chander was sought to be changed in stead of Suresh Chander. 3. The said application was contested by the respondent-husband on the ground that the same had been filed to delay the proceedings and the allegations levelled by her were totally false and baseless. 4. similarly the name of Sudesh Chander was sought to be changed in stead of Suresh Chander. 3. The said application was contested by the respondent-husband on the ground that the same had been filed to delay the proceedings and the allegations levelled by her were totally false and baseless. 4. The learned Additional District Judge, Jalandhar, rejected the said application on the ground that the same has been filed at a belated stage and further that the petitioner could not be allowed to take altogether different plea. Rather the ground of rejection was that it was not the case of the petitioner herein that these facts were not known to her earlier. 5. Learned counsel for the petitioner submitted that earlier written statement was filed on 7.11.2001. However, the husband-respondent amended his petition in the year 2003 and in pursuance thereof, the amended written statement was filed on 25.3.2003. 6. Learned counsel for the petitioner contended that the facts now sought to be pleaded came to her knowledge after the written statement was filed as she came to know about these facts from Satish Nauharia and immediately moved the application. The learned counsel for the petitioner placed reliance on the judgment of this Court in Pal Singh v. Ranjit Singh, 2006(1) RCR(Civil) 831 to contend that amendment in the written statement is to be granted more liberally than in the plaint where the purpose of amendment is to elaborate the defence and take an additional plea, ordinarily such an amendment should be allowed as it does not cause any prejudice, if allowed at any early stage and, therefore, would advance justice. 7. Learned counsel for the petitioner further placed reliance on the judgment of the Honble Supreme Court in the case of Rajesh Kumar Aggarwal and others v. K.K. Modi and others, 2006(2) RCR(Civil) 577 to contend that it is mandatory on the Court to allow all amendments which are necessary for the purpose of determining the real question of controversy between the parties. Paras 15 to 18 of the said judgment read as under :- "15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. Paras 15 to 18 of the said judgment read as under :- "15. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 16. As discussed above, the real controversy test is the basic or cardinal test, and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed, if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to subserve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 17. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 18. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case. 18. We shall now consider the proposed amendment and to see whether it introduces a totally different, new and inconsistent case as observed by the Honble Judges of the Division Bench and as to whether the application does not appear to have been made in the good faith. We have already noticed the prayer in the plaint and the application for amendment. In our view, the amendment sought was necessary for the purpose of determining the real controversy between the parties as the beneficiaries of the Trust. It was alleged that respondent No. 1 is not only in exclusive possession of 57,942 shares of GPI and the dividend received on the said shares but has also been and is still exercising voting rights with regard to these shares and that he has used the Trust to strengthen his control over GPI. Therefore, the proposed amendment was sought in the interest of the beneficiaries and to sell the shares and proceeds invested in Government bonds or securities. A reading of the entire plaint and the prayer made thereunder and the proposed amendment would go to show that there was no question of any inconsistency with the case originally made out in the plaint. The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. There are a plethora of precedents pertaining to the grant or refusal of permission for amendment of pleadings. The various decisions rendered by this Court and the proposition laid down therein are widely known. This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. The amendments sought for by the appellants has become necessary in view of the facts that the appellants being the beneficiaries of the Trust are not deriving any benefit from the creation of the Trust since 1991-92 and that if the shares are not sold and then invested in Government bonds/securities the investment would yield a minimum return of 10-12%. It was alleged by the appellants that respondent No. 1 is opposing the sale in view of the fact that if the said shares are sold after the suit is decreed in favour of the appellants, he will be the loser and, therefore, it is solely on account of the attitude on the part of respondent No. 1 that the appellants have constrained to seek relief against the same." 8. Mr. P.K. Jain, learned counsel the respondent contended that by way of amendment the petitioner seeks to take altogether a different stand which was earlier taken in the written statement filed by her. He further contended that the learned Court below was right in rejecting the same as there was a delay in moving the present application which was not explained. 9. It was also contended by the learned counsel for the respondent that the discretion exercised by the Court below should not be interfered with by this Court in exercise of superintendence jurisdiction. 10. It was lastly contended by the learned counsel for the respondent that written statement was filed by the petitioner on 21.3.2003 i.e. after the amendment of Order 6 Rule 17 of the CPC and, therefore, the amendment was rightly rejected as it was not open to the petitioner to amend the pleadings after the commencement of trial unless it was established that inspite of due diligence the plea seeking amendment could not be raised before the commencement of the trial. For the said purpose, he placed reliance on the judgment of this Court in Balbir Singh v. Radhey Singh, 2003(1) PLR 569. 11. For the said purpose, he placed reliance on the judgment of this Court in Balbir Singh v. Radhey Singh, 2003(1) PLR 569. 11. I have considered the arguments raised by the learned counsel for the parties and find that the amended provisions of Order 6 Rule 17 of the CPC would not apply to the present case as the original pleadings were filed by the petitioner on 17.11.2001 i.e. before the amendment of Order 6 Rule 17 of the CPC. The amended written statement was filed on 21.3.2003 in view of the amended petition filed by the respondent-husband. 12. As regards the question of delay, the learned Court below was not right in rejecting the application on that ground as it could be compensated by payment of costs. 13. It is pertinent to note that in the present case the amendment sought was of written statement and therefore there was no question of change of nature of case as observed by the learned Court below as in the case of written statement it was open to the petitioner to take even a contradictory stand or take an elaborate additional plea as held by the Honble Supreme Court in Pal Singhs case (supra). It may further be noticed that it was clearly mentioned in the application moved under Order 6 Rule 17 of the CPC that the facts sought to be pleaded by way of amendment of written statement came to the knowledge of the petitioner after filing of the written statement and, therefore, there was no ground to reject the same. Regarding delay in moving the application, the Honble Supreme Court in the case of Rajesh Kumar Aggarwal & others (supra) has been pleased to lay down that it is mandatory for the Court to allow all amendments, which are necessary for the purpose of determining the real question of controversy between the parties. It would be seen that the amendment sought is of the nature which is necessary for the determination of real question of controversy between the parties. In view of what has been stated above, the revision petition is allowed, the impugned order is set aside and the application moved by the petitioner under Order 6 Rule 17 is allowed. Petition allowed.