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2013 DIGILAW 3419 (MAD)

J. Umamageswari v. P. Soundararajan

2013-09-20

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner / Respondent has focused the instant Civil Revision Petition as against the order dated 03.04.2013 in I.A.No.303 of 2013 in O.P.No.2219 of 2010 passed by the Learned First Additional Principal Judge, Family Court, Chennai. 2. The Learned First Additional Principal Judge, Family Court, Chennai, while passing the impugned order in I.A.No.303 of 2013 in O.P.No.2219 of 2010 on 03.04.2013 has observed and held as follows:- "The respondent has been subjected to medical examination and the medical report from Sri Ramachandra Medical Center has been sent to the Court. Therefore, with a view to speedy and substantial disposal of the case, the amendment petition is allowed." 3. Assailing the correctness of the order dated 03.04.2013 in I.A.No.303 of 2013 in O.P.No.2219 of 2010 passed by the Learned First Additional Principal Judge, Family Court, Chennai, the Learned counsel for the Petitioner / Respondent (Wife) urges before this Court that the impugned order in I.A.No.303 of 2013 in O.P.No.2219 of 2010 dated 03.04.2013 suffers from illegality and also that the said order is against the all probabilities of the case. 4. It is the contention of the Learned counsel for the Petitioner / Respondent that the Learned First Additional Principal Judge, Family Court, Chennai, has not applied his mind while passing the impugned order in I.A.No.303 of 2013 in O.P.No.2219 of 2010 dated 03.04.2013 and also that the Learned Judge has not dealt with the merits of the matter in issue in a proper and real perspective. 5. According to the Learned counsel for the Petitioner, the Learned First Additional Principal Judge, Family Court, Chennai, failed to take note of a very vital fact that under Order 6 Rule 17 of the Code of Civil Procedure, the amendment I.A.No.303 of 2013 filed by the Respondent / Husband is not maintainable because of the simple reason that the Respondent / Husband has changed the entire cause of action and the nature of petition in I.A.No.303 of 2013. 6. Yet another submission of the Learned counsel for the Petitioner / Wife is that by filing an amendment application, viz., I.A.No.303 of 2013, the Respondent / Husband has introduced new facts and subsequent events, which are impermissible in terms of Order 6 Rule 17 of the Code of Civil Procedure. 7. 6. Yet another submission of the Learned counsel for the Petitioner / Wife is that by filing an amendment application, viz., I.A.No.303 of 2013, the Respondent / Husband has introduced new facts and subsequent events, which are impermissible in terms of Order 6 Rule 17 of the Code of Civil Procedure. 7. The Learned counsel for the Petitioner / Respondent projects an argument that earlier the Respondent / Husband filed petition for divorce on the ground of cruelty and now in I.A.No.303 of 2013, he has taken a new plea that the Petitioner / Wife is mentally affected based on the report from the hospital, which was obtained illegally. 8. The Respondent / Husband has projected an amendment application seeking permission of the trial Court to amend the prayer, facts and sections in O.P.No.2219 of 2010, as stated in detail in paragraphs 6 to 15 of I.A.No.303 of 2013. 9. A cursory perusal of the contents of I.A.No.303 of 2013 in O.P.No.2219 of 2010 filed by the Respondent / Husband (as Petitioner) shows that the Petitioner has specified the nature of amendments to be made in O.P.No.2219 of 2010. 10. The Revision Petitioner / Wife (Respondent in I.A.No.303 of 2013) has filed a detailed counter inter alia mentioning that she denies the averments contained in paragraphs 6 to 15 of the affidavit in I.A.No.303 of 2013 and further stated that unless and until the trial Court come to a conclusion that she is suffering from Schizophrenia disease, the Respondent / Husband cannot file amendment application etc. Further she has categorically stated in paragraph 7 of the counter to I.A.No.303 of 2013 that the Respondent / Husband has already filed an amendment application I.A.No.1335 of 2011 for amending the petition to include the same averments in paragraph 13(a) of the Petition. At this stage, the Learned counsel for the Petitioner / Wife informs this Court that the said I.A.No.1335 of 2011 was not pressed by the Respondent / Husband and the same was dismissed by the trial Court. 11. At this stage, the Learned counsel for the Petitioner / Wife informs this Court that the said I.A.No.1335 of 2011 was not pressed by the Respondent / Husband and the same was dismissed by the trial Court. 11. Continuing further the Revision Petitioner / Wife has in paragraph 7 of her counter to I.A.No.303 of 2013 has in emphatic terms stated that the marriage between the Respondent / Husband and herself took place in the year 2008, but the Respondent / Husband has filed a petition for divorce during the year 2010 and also he had not noticed any symptoms of mental disorder at any point of time and his petition was mainly based on the alleged cruelty on her part etc. 12. It is to be noted that the power of Court of Law to allow an amendment application / petition in law is to be exercised in a liberal and lenient fashion. As a general rule 'Leave to amend' would be ordinarily granted so as to enable the real questions in issue between the parties, to be raised, based on the pleadings. To put it differently 'Leave to amend' should always be granted unless a litigant applying was not acting in a bona fide manner. It cannot also be brushed aside that 'all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy'. An amendment, which does not alter the cause of action would ordinarily be permitted. 13. In this case, this Court makes a pertinent and useful reference to the ingredients of Section 19 of the Family Courts Act, 1984, which deals with 'Appeal' and the same is extracted as under:- "19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. (2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991. (3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. (4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding. (5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. (6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges." 14. Since the Learned First Additional Principal Judge, Family Court, Chennai, has allowed I.A.No.303 of 2013 in O.P.No.2219 of 2010 filed by the Respondent / Husband on 03.04.2013, the present Revision Petition filed against the said order by the Revision Petitioner / Wife is perfectly maintainable before this Court in view of the fact that the said order is not an appealable one as per the decision in "Major Raja P.Singh ..vs.. Surendra Kumari' (AIR 1991 Rajasthan 133). 15. Be that as it may be, as far as the present case is concerned, the Respondent / Husband has filed I.A.No.303 of 2013 under Order 6 Rule 17 of CPC praying permission of the Learned First Additional Principal Judge, Family Court to amend O.P.No.2219 of 2010 and as a matter of fact, the Respondent / Husband in his I.A.No.303 of 2013 has specified in detail the amendments to be made by him in O.P.No.2219 of 2010. For the said I.A.No.303 of 2013, the Revision Petitioner / Wife has filed a detailed counter. For the said I.A.No.303 of 2013, the Revision Petitioner / Wife has filed a detailed counter. However, on going through the impugned order dated 03.04.2013 in I.A.No.303 of 2013 in O.P.No.2219 of 2010 passed by the Learned First Additional Principal Judge, Family Court, Chennai, this Court comes to an inevitable and irresistable conclusion that the Learned First Additional Principal Judge, Family Court, Chennai, has only simply allowed I.A.No.303 of 2013 by making the following observations:- "The respondent has been subjected to medical examination and the medical report from Sri Ramachandra Medical Center has been sent to the Court. Therefore, with a view to speedy and substantial disposal of the case, the amendment petition is allowed." 16. The said order, in the considered opinion of this Court, is bereft of qualitative and quantitative details. To put it precisely, the said order is shorn of requisite details/particulars. In fact, the Learned First Additional Principal Judge, Fast Track Court, Chennai, has not adverted to the averments made by the Respondent / Husband in I.A.No.303 of 2013 and also the counter averments / counter affidavit filed by the Revision Petitioner / Wife to I.A.No.303 of 2013. In short, the impugned order in I.A.No.303 of 2013 in O.P.No.2219 of 2010, in and by which, the amendment application has been allowed by the Learned First Additional Principal Judge, Family Court, Chennai, suffers from an absence of 'outline of process of reasoning' as opined by this Court. Whenever a Court of Law deals with an amendment application / petition filed under Order 6 Rule 17 of CPC, its premordial duty is to consider the averments and the counter averments or counter pleas pleaded / taken by the parties and ultimately to pass a reasoned and final order on merits, of course assailing cogent, coherent and convincing reasons. To put it differently, it is the duty of Court of Law to traverse upon the pleadings projected by the parties in a realistic and proper perspective. An unjust order may be a valid one from the point of view of a person, who has succeeded in a litigation, but to a defeated party, the said order will be an unjust one, so as to enable him to initiate further proceedings in the matter in question, in accordance with law. In brevity, it is to be pointed out that a 'reasoned order' will have the appearance of justice. In brevity, it is to be pointed out that a 'reasoned order' will have the appearance of justice. Per contra, the cryptic order, bereft of qualitative and quantitative details, is not a valid and tenable one in law, as opined by this Court. 17. In view of the fact that the trial Court has not passed a reasoned order on merits in I.A.No.303 of 2013 in O.P.No.2219 of 2010 and further because of the cryptic reasoning ascribed in the impugned order shorn of necessary deliberations/discussions/details and also since the said order suffers from 'absence of an outline of process of reasoning', this Court on the simple ground alone, to prevent an aberration of justice and to promote substantial cause of justice, sets aside the said order in I.A.No.303 of 2013 in O.P.No.2219 of 2010 dated 03.04.2013 passed by the Learned First Additional Principal Judge, Family Court, Chennai. Consequently, the Civil Revision Petition succeeds. 18. In the result, the Civil Revision Petition is allowed. No costs. Resultantly, the order passed by the Learned First Additional Principal Judge, Family Court, Chennai in I.A.No.303 of 2013 in O.P.No.2219 of 2010 dated 03.04.2013 is set aside by this Court for the reasons assigned in this Revision. Further, the Learned First Additional Principal Judge, Family Court, Chennai, is directed to take up I.A.No.303 of 2013 in O.P.No.2219 of 2010 on his file afresh and after providing due opportunities to respective parties, is directed to pass a well considered, reasoned order on merits ascribing quantitative and qualitative reasons by adverting to the pleadings set out by the parties and analyse the same, in the manner known to law and in accordance with law. In any event, the Learned First Additional Principal Judge, Family Court, Chennai, is directed to dispose of the said I.A.No.303 of 2013 in O.P.No.2219 of 2010 within a period of two weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.