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2011 DIGILAW 238 (BOM)

Sushma Rameshwar Ubale v. Rameshwar Keshao Ubale

2011-02-28

VASANTI A.NAIK

body2011
JUDGMENT: RULE. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. 2. By this petition, the petitioner impugns the order passed by the Principal District Judge, Buldana on 10.12.2010 allowing an application filed by the respondent under Order VI Rule 17 of the Code of Civil Procedure seeking an amendment to the Hindu Marriage Petition filed by him for grant of a decree for divorce. The marriage between the petitioner and the respondent was solemnized on 09.12.1993 and in the year 2003, the respondent filed a petition for grant of a decree of divorce. It was the case of the respondent that the petitioner had deserted him since Holi Festival of the year 1994 and, therefore, he was entitled for grant of a decree of divorce under Section 13(1)(i)(b) of the Hindu Marriage Act. The petitioner filed the written statement and denied the claim of the respondent. It was stated in the written statement that the respondent had deserted the petitioner since 19.06.1997. The trial Court dismissed the Hindu Marriage Petition filed by the respondent. The respondent preferred an appeal against the judgment passed by the trial Court and the same was numbered as Regular Civil Appeal No.151/2007. During the pendency of the Regular Civil Appeal, an application was filed by the respondent under Order VI Rule 17 of the Code of Civil Procedure for permission to amend the Hindu Marriage Petition. The application was seriously opposed by the petitioner. However, the learned first appellate Court was pleased to allow the application by the impugned order dated 10.12.2010. 3. Shri Jaltare, the learned counsel for the petitioner, submitted that the first appellate Court was not justified in allowing the application for amendment of the Hindu Marriage Petition at the appellate stage. The learned counsel for the petitioner submitted that by the proposed amendment, the respondent sought to introduce a new case. It is submitted on behalf of the petitioner that in the Hindu Marriage Petition, the ground for seeking the divorce was desertion but, by the proposed amendment it was sought to be brought on record that the petitioner was suffering from skin disease known as Impetigo Contasium. It is submitted on behalf of the petitioner that in the Hindu Marriage Petition, the ground for seeking the divorce was desertion but, by the proposed amendment it was sought to be brought on record that the petitioner was suffering from skin disease known as Impetigo Contasium. It was also sought to be brought on record by the proposed amendment that the respondent had purchased a property in Chikhli in the name of the father of the petitioner on an understanding that the petitioner would sign Deed of Consent Divorce. The learned counsel for the petitioner submitted that the proposed amendment not only changed the nature of the suit but was also not necessary for deciding the real controversy between the parties. The learned counsel for the petitioner submitted that the facts in the proposed amendment gave rise to a new cause of action, which was totally unconnected with the cause of action on which the Hindu Marriage Petition was instituted. The learned counsel for the petitioner relied on the judgments reported in AIR 1992 Allahabad 25 (Ganeshi Raj & another Versus First Additional District Judge, Ghazipur & others) and AIR 1967 SC 96 (A.K. Gupta and Sons Ltd. Versus Damodar Valley Corporation) to substantiate his submission. 4. Shri Deshpande, the learned counsel for the respondent, submitted that the first appellate Court was justified in granting the prayer for amendment as the proposed amendment was necessary for effectively deciding the controversy between the parties. The learned counsel for the respondent submitted that the respondent had filed a Hindu Marriage Petition seeking a decree of divorce and the facts stated in the proposed amendment were necessary for deciding the controversy between the parties. The learned counsel for the respondent then submitted that the previous counsel engaged by the respondent had erroneously failed to state the facts stated in the proposed amendment in the Hindu Marriage Petition and after the counsel was changed, it was realized that it was necessary to bring the facts stated in the proposed amendment on record so as to effectively decide the controversy in question. The learned counsel for the respondent relied on the judgments reported in 2006(3) Mh.L.J. 676 (Vijaykumar Narayanrao Dixit Versus Uday Griha Nirmal Samasya Niwarak Sanstha, Nagpur) and 2005(3) Mh.L.J. 747 (Surinder Singh Versus Kapoor Singh (dead) through LRs. & others) to substantiate his submission. 5. The learned counsel for the respondent relied on the judgments reported in 2006(3) Mh.L.J. 676 (Vijaykumar Narayanrao Dixit Versus Uday Griha Nirmal Samasya Niwarak Sanstha, Nagpur) and 2005(3) Mh.L.J. 747 (Surinder Singh Versus Kapoor Singh (dead) through LRs. & others) to substantiate his submission. 5. On hearing the learned counsel for the parties and the pleadings in the proposed amendment, it appears that the first appellate Court committed a serious error in allowing the amendment application filed by the respondent at the appellate stage. The first appellate Court failed to consider that the Hindu Marriage Petition had been filed by the respondent on the ground of desertion and by the proposed amendment, the respondent sought to introduce a new set of facts, which gave rise to a new cause of action, which was completely unconnected with the original cause of action on the basis of which the Hindu Marriage Petition was instituted. Indeed, some facts stated in the proposed amendment were even contrary to the admissions of the respondent in his cross-examination. It is necessary to note that each and every fact stated in the proposed amendment was within the knowledge of the respondent prior to the institution of the Hindu Marriage Petition. A party cannot seek to amend the pleadings to a great extent so as to give rise to a new cause of action at the appellate stage only on the ground that the previous counsel had committed a mistake in failing to state the facts stated in the proposed amendment in the plaint, which was initially instituted by the party. If such stand is allowed to be taken at the appellate stage and if new set of facts giving rise to a new cause of action, which is completely unconnected with the original cause of action are permitted to be introduced at the subsequent stage of the proceedings, each and every party may take such a stand at the subsequent stage of the proceedings to state that certain mistakes are realized by a new counsel and, hence, the amendment may be permitted. The judgments reported in 2006(3) Mh.L.J. 676 (Vijaykumar Narayanrao Dixit Versus Uday Griha Nirmal Samasya Niwarak Sanstha, Nagpur) and 2005(3) Mh.L.J. 747 (Surinder Singh Versus Kapoor Singh (dead) through LRs. & others) cannot be made applicable to the facts of this case. The judgments reported in 2006(3) Mh.L.J. 676 (Vijaykumar Narayanrao Dixit Versus Uday Griha Nirmal Samasya Niwarak Sanstha, Nagpur) and 2005(3) Mh.L.J. 747 (Surinder Singh Versus Kapoor Singh (dead) through LRs. & others) cannot be made applicable to the facts of this case. In the case reported in 2006(3) Mh.L.J. 676 (Vijaykumar Narayanrao Dixit Versus Uday Griha Nirmal Samasya Niwarak Sanstha, Nagpur), the details in the suit for specific performance of contract, as were apparent from the record, were sought to be pleaded by the amendment. In such circumstances, this Court observed that merely because the evidence of one witness was recorded, it does not mean that the plaintiff cannot be permitted to take corrective measures, particularly when he has not incorporated any new cause of action. Such is not the case here. The facts sought to be pleaded by the proposed amendment, were not even remotely placed on record and in this case, the proposed amendment gave rise to a new cause of action. In case, the proposed amendment was allowed, the parties would have been required to tender fresh evidence on the two new issues about the petitioner being allegedly suffering from a skin disease known as Impetigo Contasium and that the respondent had purchased the property in the name of petitioner's father on a promise by the petitioner that she would sign a Divorce-Deed in case the said property was purchased in the name of her father. The proposed amendment not only changed the nature of the suit but, would cause grave and irreparable loss to the petitioner as the Hindu Marriage Petition filed by the respondent was dismissed by the trial Court and the appeal against the judgment was pending before the first appellate Court. In the facts of this case, it cannot be said that the proposed amendment was necessary for effectively deciding the controversy between the parties. In the facts of the case, the impugned order is unsustainable and is liable to be set aside. 6. Hence, for thereasons aforesaid, the writ petition is allowed. The impugned order passed by the first appellate Court on 10.12.2010 is quashed and set aside. The amendment application filed by the respondent stands dismissed. Rule is made absolute in the aforesaid terms with no order as to costs.