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2018 DIGILAW 693 (CAL)

Keya Chakraborty v. Sudip Bhattacharya

2018-09-18

AMRITA SINHA, I.P.MUKERJI

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JUDGMENT : 1. One connected application (CAN 1245 of 2017) seeks amendment of the plaint. The second application (CAN 10643 of 2016) is under Order 41 Rule 27 of the Code of Civil Procedure. 2. Mr. R.N. Dutta, learned Counsel for the appellant submits that after the decree of the Court below refusing to grant divorce to the plaintiff/appellant wife, she has discovered, inter alia, that her husband married her disclosing a false qualification suppressing his original qualification. She has discovered that he does not have any educational qualification worth its name. Furthermore, an F.I.R. was lodged against the husband being F.I.R. No. 16 dated 18th January, 2012 by the Park Street Police Station under Sections 420 and 406 of the Indian Penal Code. Furthermore, she says the respondent/husband was the accused in connection with the another criminal case being G.R. No. 3263 of 2013 arising out of Lake P.S. Case No. 290 of 2013 dated 25th June, 2018 for cheating some person of several lakhs of money and gold ornaments. Furthermore, he defaulted in payment of a bank loan taken by him from State Bank of India, Northern Avenue Branch, Kolkata. 3. Mr. Dutta, learned Counsel appearing for the appellant submits that if these facts are brought on record, it will strengthen the case of his client for divorce. 4. The law does not recognize a party to advance his case in installments. Order 2 Rule 2 makes it clear that the plaint has to include the whole case. No separate suit can be filed for the omitted claim. Hence it should not be entertained by amending the plaint because it will amount to admitting a barred claim and enlarging the scope of the suit. Order 41 Rule 27 of the Code of Civil Procedure, provides that if the appellant finds that any evidence, in spite of due diligence could not be discovered or produced before the trial Court it might be adduced before the appellate Court. 5. In this case all the documents shown by Mr. Dutta were readily available when his client filed the suit. 6. Mr. Dutta cited a decision in the case of [Mahila Ramkali Devi & Ors. v. Nandram (D) thr. Lrs. & Ors.] report in 2015 (3) ICC 657 (SC). 5. In this case all the documents shown by Mr. Dutta were readily available when his client filed the suit. 6. Mr. Dutta cited a decision in the case of [Mahila Ramkali Devi & Ors. v. Nandram (D) thr. Lrs. & Ors.] report in 2015 (3) ICC 657 (SC). He also cited a decision in the case of (Shyamal Kanti Chakraborty v. Pranabendu Mohan Chakraborty & Anr.) reported in 2016 (4) ICC 565 (Cal) wherein it was held that the Court had the power to order amendment even at a belated stage. 7. Learned Counsel also cited a judgment of this Court in the case of (Sisir Kumar Bhattacharjee, Gautam Bhattacharjee v. Dipti Chatterjee & Ors.) reported in (2015) 4 WBLR (Cal) 673 where a somewhat liberal view was taken. It was said that for the ends of justice, admissibility, of valuable evidence by the Court should not be refused on the ground of delay. In this case we do not think such a ground has been made out. 8. The alleged act of fraud was committed by the respondent before filing of the proceeding for divorce. Even if the facts were not within the applicant's knowledge, a reasonable enquiry would have easily revealed the fact. 9. Now, referring to those facts will change the nature and character of the case in our opinion. The case run before the trial Court was mental and physical cruelty and torture. The law is clear that if the nature and character of the suit is changed, by the amendment it is not allowed. The amendment if allowed will change the nature and character of the suit, in our opinion. Moreover, all these documents could have been easily procured by the appellant before filing the suit. We do not think that this is a fit case where the extraordinary principles in the case of (Sisir Kumar Bhattacharjee, Gautam Bhattacharjee v. Dipti Chatterjee & Ors.) reported in (2015) 4 WBLR (Cal) 673 will apply. Both the applications (CAN 1245 of 2017 and CAN 10643 of 2016) are dismissed. 10. We think that the appeal should be expedited. 11. The existing order of the Court dated 6th February, 2018 should be complied with by the appellant. Time to file the informal paper books in terms of the said order is extended till 19th November, 2018. 12. All formalities are dispensed with. 13. 10. We think that the appeal should be expedited. 11. The existing order of the Court dated 6th February, 2018 should be complied with by the appellant. Time to file the informal paper books in terms of the said order is extended till 19th November, 2018. 12. All formalities are dispensed with. 13. The connected application (CAN 1245 of 2017 and CAN 10643 of 2016) are hereby dismissed. Urgent certified photocopy of this order may be supplied to the parties upon compliance of the necessary formalities.