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2015 DIGILAW 470 (CAL)

Pratap Senapati v. Pratima Senapati

2015-06-05

DEBI PROSAD DEY, JYOTIRMAY BHATTACHARYA

body2015
JUDGMENT: Jyotirmay Bhattacharya, J. : This first appeal is directed against the judgement and decree dismissing the husband’s suit for divorce being Mat Suit No. 348 of 1997 passed by the learned Additional District & Sessions Judge, 1st Fast Track Court, Hooghly on 23rd December, 2005 at the instance of the husband/appellant. Initially the husband/appellant filed an application under Section 9 of the Hindu Marriage Act praying for restitution of conjugal right. In the said suit, the husband/appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amending his pleading in the plaint. As a matter of fact, immediately upon receipt of the summons of the said proceeding under Section 9 of the Hindu Marriage Act, the wife/respondent lodged a complaint under Section 498A of the Indian Penal Code against the husband/appellant and his other family members. This was the cause which prompted the husband/appellant to file the said application for amendment of his pleading in the plaint. In the said application, the husband sought for permission to bring those facts relating to lodging of such a complaint under Section 498A of the Indian Penal Code by the wife against the husband and his family members. According to the husband/appellant, filing of such a complaint by the wife against the husband and his other family members amounts to mental cruelty. Accordingly, he wanted to convert his application for restitution of conjugal right into a suit for divorce by bringing those facts on record by way of amendment of his pleading. The husband’s said application for amendment of plaint was allowed subject to payment of cost of Rs.150/- by the husband/appellant to the wife. By the said order, the husband/appellant was permitted to convert the husband’s application under Section 9 of the Hindu Marriage Act into a suit for divorce with a rider that the husband will not be entitled to seek the relief for restitution of conjugal right in the alternative. The said order was passed by the learned Trial Judge on 8th June, 2000 vide Order No. 22. While allowing the husband’s said application for amendment, no direction was given by the court for carrying out such amendment by the husband/appellant within a particular period in terms of the provision contained in Order 6 Rule 18 of the Code of Civil Procedure. While allowing the husband’s said application for amendment, no direction was given by the court for carrying out such amendment by the husband/appellant within a particular period in terms of the provision contained in Order 6 Rule 18 of the Code of Civil Procedure. Since no time was fixed for carrying out such amendment by the husband, the husband/appellant was required to carry out such amendment in terms of Order 6 Rule 18 of the Code of Civil Procedure within 14 days from the date of the order. This has also not been complied with by the husband/appellant. However, the husband/appellant paid the cost amount as per the direction of the learned Trial Judge to the wife/respondent and such cost of allowing such amendment was also accepted by the wife/respondent. We find from the Trial Court’s records that the department carried out those amendment in the plaint as per the order passed by the learned Trial Judge on 8th June, 2000 vide Order No. 22, but the plaint was not reverified by the husband/plaintiff/appellant. As such, the amended pleading cannot be considered. We also find from the order passed by the learned Trial Judge on 8th June, 2000 vide Order No. 22 that the learned Trial Judge while allowing the plaintiff’s application for amendment, did not even pass any direction upon the husband/plaintiff/appellant for service of copy of the amended plaint upon the respondent/wife. Even no opportunity was given to the wife/respondent to file additional written statement in the suit for controverting the amended pleadings of the plaintiff/appellant. With these loopholes in the order passed by the learned Trial Judge while allowing the plaintiff’s application for amendment of pleading, the trial commenced. As a result, neither the amendment was carried out by the plaintiff nor any amended plaint was filed by the plaintiff in the suit nor copy of the amended plaint was served upon the wife/respondent nor the wife/respondent filed any additional written statement. Ultimately the learned Trial Judge after recording the evidence of the parties in the said suit, dismissed the said suit by holding, inter alia, that the allegation of cruelty which was the foundation of the plaintiff’s claim for divorce could not be proved by him. Accordingly, the suit was dismissed. The present appeal is directed against the said judgement and decree passed by the learned Trial Judge. Accordingly, the suit was dismissed. The present appeal is directed against the said judgement and decree passed by the learned Trial Judge. In connection with this appeal, the husband/appellant has taken out an application under Order 41 Rule 27 of the Code of Civil Procedure seeking leave to adduce further evidence in this appeal. It is stated therein that after disposal of the suit on 23rd December, 2005, the criminal proceeding being Case No. G.R. 923 of 1997/T.R. 252 of 2002 arising out of a complaint lodged by the wife under Section 498A of the Indian Penal Code against the husband and the other members of his family was disposed of by holding, inter alia, that all the accused persons are not guilty of the offence punishable under Section 498A of the Indian Penal Code. The husband and the other family members are all acquitted under Section 248(1) of the Criminal Procedure Code. The husband/appellant has sought for permission to bring the certified copy of the order passed in the said criminal proceeding on record by way of additional evidence. According to the husband/appellant, the said judgement and/or order is the most vital piece of evidence in this matrimonial proceeding in the light of the observation of the learned Trial Judge who primarily dismissed the said suit by holding, inter alia, that having regard to the fact that the criminal proceeding was yet to be disposed of, no conclusive inference could be drawn regarding the alleged cruelty. Though such an application under Order 41 Rule 27 of the Code of Civil Procedure was taken out by the husband/appellant in this appeal, but the husband/appellant has not taken any further step for amending the plaint for bringing those facts on record. It is settled principle of law that no amount of evidence can be looked into beyond the pleadings of the parties. Thus we hold that when the basic pleadings are not brought on record, even the facts which the appellant wants to introduce by way of additional evidence, cannot be looked into. Thus we find that right from beginning of the trial of the suit, the suit was not properly guided by the parties. Even the order which was passed by the learned Trial Judge while allowing the application for amendment of the plaint was erroneous. We thus hold that the trial, in effect, was vitiated. Thus we find that right from beginning of the trial of the suit, the suit was not properly guided by the parties. Even the order which was passed by the learned Trial Judge while allowing the application for amendment of the plaint was erroneous. We thus hold that the trial, in effect, was vitiated. Under such circumstances, we feel that the judgement and decree which was passed by the learned Trial Judge in the said suit cannot be retained on record. The judgement and decree which is impugned in this appeal is thus set aside. Fresh trial is needed in the aforesaid background. We thus remand the suit back to the learned Trial Judge for reconsideration in the light of the observation made herein-below :- The husband/plaintiff/appellant is directed to file amended plaint with proper verification by incorporating the proposed amendment in the plaint as per the order passed by the learned Trial Judge on 8th June, 2000 vide Order No. 22 in the court below within one month from the date of receipt of the lower court records by the court below. Copy of the amended plaint should be served upon the wife/respondent and/or her learned advocate-on-record in the court below within a week thereafter. Leave is granted to the wife/respondent to file additional written statement to the amended plaint of the husband/plaintiff/appellant within two weeks from the date of service of copy of the amended plaint upon her and/or her learned advocate-on-record. In case, the husband/plaintiff/appellant further intends to amend his pleading in the plaint for bringing on record the subsequent events relating to his acquittal in the criminal proceeding arising out of the wife’s complaint under Section 498A of the Indian Penal Code, he may do so by filing a proper application for amendment before the learned Trial Judge within one month from the date of receipt of the lower court records by the court below. In case, such an application is filed by the husband/plaintiff/appellant in the court below, the learned Trial Judge will consider the same in his own wisdom after giving an opportunity of filing objection to the said application for amendment by the wife/respondent. In case, such an application is filed by the husband/plaintiff/appellant in the court below, the learned Trial Judge will consider the same in his own wisdom after giving an opportunity of filing objection to the said application for amendment by the wife/respondent. Needless to mention here that after the suit matures for hearing, the learned Trial Judge will give opportunity to both the parties to adduce further evidence in the said suit and thereafter conclude the hearing of the suit in accordance with law as expeditiously as possible, preferably within six months from the date when the suit will mature for hearing. Let the lower court records be sent down to the court below immediately by special messenger at the cost of the husband/appellant. Such cost should be deposited within a week from date. No formal decree need be drawn up. It is further clarified that immediately on receipt of the lower court records by the court below, the court below will intimate the facts regarding receipt of the lower court records to the learned advocates-on-record of the respective parties within three days from the date of receipt of such lower court records from this Court. The appeal is thus disposed of. Re: CAN 6053 of 2009 (Ord. 41 Rule 27) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the appellant’s application under Order 41 Rule 27 of the Code of Civil Procedure. The said application being CAN 6053 of 2009 is thus deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.