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2024 DIGILAW 620 (KER)

Benjeena P. J. v. C. P. Pappachan

2024-06-06

P.M.MANOJ, RAJA VIJAYARAGHAVAN V.

body2024
JUDGMENT : 1. This petition is filed challenging the order dated 09.11.2023 in I.A. No. 2 of 2023 in O.P. No. 578 of 2023 on the files of the Family Court, North Paravur, by which the application filed by the respondent for amendment of the written statement was allowed. 2. Short facts are as under. For the sake of ease and clarity, the parties shall be described as per their status before the Family Court: (a) The petitioner is the wife of the respondent. The Original Petition was filed seeking to pass a decree declaring the matrimonial status of the petitioner and the 1st respondent. (b) The respondent filed a written statement on 18.12.2019 contending inter alia that the marriage solemnized between the parties was neither legal nor in accordance with the Cochin Christian Civil Marriage Act, 1095 and in that view of the matter, no declaration, as prayed for, can be granted. (c) While so, the respondent filed an application to amend Ext.P2 written statement. (d) A detailed counter statement was filed pointing out that the amendment sought, if allowed, will change the entire nature of the case and the attempt of the respondent was to resile from his earlier version and put up new contentions. It was contended that in respect of various assertions made by the petitioner in the petition, in the earlier written statement, only an evasive denial was made and if that be the case, those averments are deemed to have been admitted. 3. We have heard Sri. G. Krishnakumar, the learned counsel appearing for the petitioner and Sri. Yash Thomas Mannully, the learned counsel appearing for the respondent. 4. Sri. G. Krishnakumar, the learned counsel appearing for the appellant, reiterated the contentions in the petition. He contended that the Family Court had erred in allowing the amendment application. Even a casual perusal of the amendment application permitted to be incorporated would reveal that the attempt of the respondent was to set up a totally new case which was inconsistent from the earlier pleading. The learned counsel would refer to Order VI Rule 17 and Order VIII Rule 4 of the Code of Civil Procedure and it was argued that the respondent cannot be permitted to take away the admissions in the earlier pleadings. The learned counsel would refer to Order VI Rule 17 and Order VIII Rule 4 of the Code of Civil Procedure and it was argued that the respondent cannot be permitted to take away the admissions in the earlier pleadings. To substantiate his contention, the learned counsel would rely on the law laid down by the Apex Court in B.K. Narayana Pillai vs. Parameshwaram Pillai and Another, (2000) 1 SCC 712 and Modi Spinning and Weaving Mills Co. Ltd. and Another vs. Ladha Ram and Co. (1976) 4 SCC 320 . 5. Sri. Yash Thomas Mannully, the learned counsel appearing for the respondent, on the other hand, submitted that the petitioner had initially filed a written statement. He later felt that certain further clarifications had to be provided and it was in the said circumstances that the application was filed. The learned counsel points out that the Family Court has only partly allowed the application and had permitted only the inclusion of paragraph Nos. 1 to 4, 6, 14, 15 and paragraphs 24 and 25. This was on the premise that the amendment, which was sought to be incorporated was necessary to determine the real question in controversy and it was required for effective and proper adjudication on the controversy between the parties. The learned counsel would also highlight the contours of power exercisable by this Court under Article 227 of the Constitution of India and it is argued that unless the order passed by the Family Court is blatantly perverse or has resulted in flagrant miscarriage of justice, no interference is warranted. The learned counsel would also rely on the principles laid down in B.K. Narayana Pillai (supra), Modi Spinning and Weaving Mills Co. Ltd. and Another (supra), Heeralal vs. Kalyan and Others, 1998 (1) SCC 278 and Usha Balashabeb Swami and Others vs. Kiran Appaso Swami and Others, 2007 (5) SCC 602 . 6. We have considered the submissions advanced and have perused the entire records. 7. We find that the Original Petition was filed by the petitioner/wife under Section 7 of the Family Courts Act, 1984. The prayer sought for was for a declaration of her marital status. She had contended that she had tied a Thali chain by her husband on 25.10.2015 before the Altar of Jesus Christ and her husband had accepted her as his wife. The prayer sought for was for a declaration of her marital status. She had contended that she had tied a Thali chain by her husband on 25.10.2015 before the Altar of Jesus Christ and her husband had accepted her as his wife. She also contended that she had tied a Thali chain again at Chittur Dhyanakendram on 8.11.2015 and that the parties had lived together as husband and wife. When the marital status was disputed by the husband, she approached the Family Court and filed the petition for declaration. 8. Initially, a written statement was filed by the respondent/husband, which is produced as Ext.P2. It is obvious that the objection has been drafted ignoring the provisions of Order VI of the CPC. Order VI Rule 2 specifically states that every pleading shall contain, and contain only, a statement in a concise form, of the material facts relied upon by a party in support of his claim or defence and the pleading shall not contain evidence by which those facts are to be proved. It is also settled law that pleadings need not contain detailed propositions of law and pleading cannot contain argumentative paragraphs. We have no doubt in our mind that the basic principle as enunciated in Order VI Rule 2 of the CPC have not been followed in the instant case. It appears the respondent engaged a fresh lawyer, who felt that certain other aspects are to be raised in the counter statement. This led to the filing of an application for amending the written objection comprising about 37 pages. The Family Court noted that the major part of the proposed amendment is targeted to deny the pleadings of the wife in the original petition. 9. Before dealing with the question whether the amendment sought for was rightly allowed by the Family Court, one may have to advert to the provisions of law and the settled precedents of the Apex Court. 10. 9. Before dealing with the question whether the amendment sought for was rightly allowed by the Family Court, one may have to advert to the provisions of law and the settled precedents of the Apex Court. 10. The principle allowing or rejecting an amendment of the pleadings has emanated from Order VI Rule 17 of the Code of Civil Procedure, which reads as follows: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 11. Order VI Rule 17 of the CPC thus makes it clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The proviso to Order VI Rule 17 of the Code, however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. However, proviso to Order VI Rule 17 of the Code cannot be made applicable in the present case, as the trial of the suit has not yet commenced. 12. The earliest precedent on the point which is often cited by the Apex Court as well as this Court to hold that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one is the observation of the Privy Council in the case of Ma Shwe Mya vs. Maung Mo Hnaung, AIR 1922 PC 249 . The Privy Council observed as follows: 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. 13. B.K. Narayana Pillai (supra), a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement, B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused. Setting aside the orders refusing amendment, the Apex Court has observed as under: The purpose and object of Order VI Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 14. In Usha Balashaheb Swami (supra), the Apex Court had occasion to elucidate the difference between the consideration of an application for amendment of a plaint and a prayer for the amendment of a written statement. After adverting to the law laid down by the Apex Court in earlier precedents, it was held as follows in paragraph Nos. 15 to 17 of the judgment: “15. After adverting to the law laid down by the Apex Court in earlier precedents, it was held as follows in paragraph Nos. 15 to 17 of the judgment: “15. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 16. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case [See B.K. Narayana Pillai vs. Parameswaran Pillai, AIR 2000 SC 614 and Baldev Singh and Others vs. Manohar Singh, AIR 2006 SC 2832 ]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi vs. Sukhnandan Ramdas Chaudhary (Dead). In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi's case (supra) as follows: As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his statement under Order VI Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. 17. As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Co. Ltd. vs. Jardine Skinner and Co. (1957) 1 SCR 438, this Court observed “that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event.” In that case this Court also held “that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice.” 15. The Apex Court has held in the case of an amendment of a written statement, the defendant is entitled to take a new defence or to take an inconsistent stand. In the case on hand, the main contention of the learned counsel is that in the earlier written statement was filed, there was only an evasive denial and in that view of the matter, the assertions in the petition should be deemed to have been admitted. It is settled law that even admissions can be explained and inconsistent pleas can be taken in the pleadings as held by the Apex Court in Akshaya Restaurant vs. P. Anjanappa, AIR 1995 SC 1498 . 16. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 the Apex Court had formulated the factors that are to be considered while considering an application for amendment. Factors to be taken into consideration while dealing with applications for Amendments: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? Factors to be taken into consideration while dealing with applications for Amendments: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala-fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation. (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 17. In the case on hand, we find that the respondent has filed an additional written objection consisting of about 37 pages. As rightly noted by the Family court, each sentence and words in the Original Petition are reproduced in the objection despite the fact that those pleadings had been dealt with earlier in the written objection filed at the first instance. The respondent has also attempted to narrate the evidence that he proposes to bring out during trial. For reasons best known, the details of the order passed in the earlier proceedings are also narrated. We have no doubt that the pleadings are prolix, repetitive and confusing. The Family court has however sifted the grain from the chaff and is permitted only the addition of paragraph Nos. 1 to 4, 6, 14, 15 after holding that the said exercise was warranted to determine the real question in controversy and for an effective and proper adjudication of the disputes between the parties. 18. The scope and ambit of the power and jurisdiction by a High Court under Article 227 was again explained by the Hon'ble Supreme Court in Estralla Rubber vs. Dass Estate (P) Ltd. JT 2001 (7) SC 657. It was held that the High Court is not vested with any unlimited prerogative to correct all kinds of hardships or wrong decisions made within the limits of the jurisdiction of the subordinate courts or Tribunals. It was held that the High Court is not vested with any unlimited prerogative to correct all kinds of hardships or wrong decisions made within the limits of the jurisdiction of the subordinate courts or Tribunals. The power under Article 227 is to be exercised sparingly in appropriate cases like when there is no evidence at all to justify or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or Tribunal has come to and that it is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. We are satisfied that the Family Court has adverted to all the relevant facts while allowing the application for amendment and no interference is warranted. 19. This petition is dismissed.