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2009 DIGILAW 1295 (MAD)

C. Rajamani v. C. Rathnabai

2009-04-21

C.S.KARNAN, D.MURUGESAN

body2009
Judgment D. Murugesan, J. 1. The appellant filed O.M.S. No.50 of 1998 before this Court under Sections 10 and 22 of the Indian Divorce Act, 1869 and under Order 27, of Original side Rules, seeking for dissolution of marriage between the appellant and the respondent on the grounds of desertion and cruelty or in the alternative for judicial separation on the grounds of desertion coupled with cruelty and for other reliefs. Based on the pleadings, the trial commenced. After the trial has commenced and at the stage when the appellant, who was the petitioner in the said O.M.S. was examined and cross-examined, and the respondent was also put on box for chief-examination, the appellant took out an Application in A. No.5268 of 2008 under Order 14, Rule 8 of Original Side Rules read with Section 18 of the Indian Divorce Act seeking for amendment to declare the marriage solemnized on 21. 1989 as null and void on the ground that the same is vitiated by fraud in the place of "for dissolution of marriage between the petitioner and the respondent on the ground of desertion and cruelty: and include Section 18 of the Divorce Act". The said Petition was dismissed by this Court Order dated 112. 2008. The learned Judge found that the Suit was laid wayback in the year 1998 and the Application for amendment has been filed in the year 2008 and that too, after the Code of Civil Procedure (Amendment) Act, 2002 came into force on 7. 2002. If the amendment is ordered, it would amount to a new controversy in the Petition and accordingly, dismissed the Petition. Hence, the present Appeal. 2. We have heard the learned counsel for the appellant and the respondent. 3. The Original Matrimonial Suit was filed with certain allegations, which are to be proved by the appellant/petitioner and we cannot express any opinion on those averments, as the parties are before the Trial Court letting in evidence. At this stage, we are concerned with whether the Petition for amendment could be ordered and if ordered, whether it would result in pleading a new case or a new controversy thereby causing prejudice to the respondent to face a fresh Trial. 4. At this stage, we are concerned with whether the Petition for amendment could be ordered and if ordered, whether it would result in pleading a new case or a new controversy thereby causing prejudice to the respondent to face a fresh Trial. 4. Though much was argued on the code of Civil Procedure (Amendment), 2002, prior to the amendent, the discretion was entirely left to the Court either for considering or rejecting the amendment and there was no embargo on it. However, after the Amendment Act came into force, Order 6, Rule 17 occupies the field for consideration of the Court to order the amendment Application. Though in general, the amendment cannot be ordered after the Trial has commenced, still a discretion is conferred on the Court to order such amendment in case if the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the Trial. 5. In fact, the power of this Court to order amendment came up for consideration before a Full Bench of this Court on a reference and after analysing various judgments, the Full Bench had also found that an amendment could be ordered even at the stage of Trial, as the Trial must be understood as final hearing of the Suit and such amendment could be order provided the Court must apply itself to the judicial discretion as to the bona fides of the applicant in seeking for amendment even at the time of Trial. The above judgment was rendered only on the ground that all rules of Court are nothing but provisions intended to secure the proper administration of justice. In the wake of the provisions, the power of this Court to Order amendment even after the trial has commenced is not taken away, except the Court is bound to satisfy itself as to the bona fides of the applicant. 6. It is the specific case of the appellant that at the time the Suit was filed for dissolution, the averments concerning the relief were made and parties were put on trial after nearly ten years. 6. It is the specific case of the appellant that at the time the Suit was filed for dissolution, the averments concerning the relief were made and parties were put on trial after nearly ten years. On 30.7.2008, when the appellant was cross-examined, he was suggested that he had only asked the respondent to get a child so that they can adopt the same since they do not have a child and that when the respondent had brought a female child, he had asked her to return the said child stating that the child was black and instead they can adopt a male child. With the above allegation, he claimed that the marriage should be declared as nullity as fraud had been played on him. 7. The learned counsel appearing for the respondent would, however, submit that the appellant is trying to make out a new case thereby intend to protract the litigation further and in view of the new averments, the respondent is put to hardship of facing crossexamination on the above aspect. It is the specific case of the learned counsel for the appellant that no amendment is prayed for in respect o amending the Petition particularly relating to the contents. The learned counsel would also submit that the appellant does not intend to file any fresh documents nor let in any additional evidence and not even will be seeking reopening of the case and he would only argue with the materials available on record and therefore, no prejudice would be caused to the respondent. 8. Inasmuch as the Petition is filed solely on the basis of the suggestion put to the appellant during the cross-examination and there was no occasion for the appellant to approach the Court for such an amendment on an earlier occasion, in our opinion, he has not failed to exercise diligently to invoke the provisions seeking for amendment at the appropriate time on an earlier occasion, but rather had approached the Court only in view of the suggestion put to him at the time of cross-examination. Further, the objection of the respondent as to a new case is being made out cannot be accepted on the facts of this case in view of the observation made by the Privy Council as early as in the year 1922 in Ma Shwe Mya v. Maung Mo Hnaunga, AIR 1922 PC 249, which reads thus: "All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the Suit." 9. The respondent would not be put to any hardship if the amendment is ordered, on the other hand, if the same is not ordered, the appellant would be put to hardship for obtaining appropriate relief from the Court if it is established during the Trial. After all, a burden is cast on the appellant, who has approached this Court for relief and in case if this amendment is ordered, it would not amount to causing a new case put forth in the Petition. Therefore, we are of the considered view, to meet the interest of justice that the amendment should be ordered. Accordingly, the Appeal is allowed. No costs. Consequently, connected M.Ps. are closed. As the O.M.S. is of the year 1998 and the Trial has already commenced and is in part-heard stage, it is observed that the Trial of the O.M.S. shall be expedited and completed.