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2025 DIGILAW 542 (MP)

Tousif v. Shaiba

2025-08-21

ALOK AWASTHI

body2025
ORDER : ALOK AWASTHI, J. 1. The miscellaneous petition is preferred under Article 227 of the Constitution of India being aggrieved by the order 15.05.2025 passed by learned Principal Judge, Family Court, District Dewas in RCSA No. 08/2023, wherein an application under Order VI Rule 17 dated 15.05.2025 has been dismissed. 2. The brief facts of the case, are that, the petitioner and respondent both are husband and wife married on 06.06.2013 according to the Muslim rites at Dewas (M.P.) and out of this wedlock two daughters Ku. Iera and Ku. Iza was on 08.04.2014 and 13.12.2017 respectively, out of which Ku. lera is residing with Respondent and Ku. Iza is residing with Petitioner. Further, it is stated that the respondent has deserted the petitioner without any good and sufficient cause on 26.07.2020 and subsequently in the year 2023, has submitted civil suit for divorce and claming Maher & Stridhan under Muslim Laws. 3. The written statement has been submitted by the petitioner before the Trial Court on 17-10-2024 thereby denying all the facts of plaint averments and prayed for dismissal of suit, thereby stating that the respondent has voluntary left matrimonial home without any good and sufficient cause with their elder daughter Kr. Ira. On the basis of respective pleadings of both the parties, the Learned Trial Court has framed issues, thereafter, case was fixed for recording the evidence of the parties to the suit. On 21.01.2025 the examination of chief of respondent/Wife has been recorded be the trial Court and the documents submitted by the respondent have been exhibited on 04.03.2025 and thereafter the case fixed for cross examination of the respondent. In this sequence, the petitioner has submitted application on 15.05.2025 before the Trial Court U/o 6 Rule 17 of CPC for amendment in the written statement, which has been rejected by the trial Court. 4. Shri V.K. Jain, Senior Counsel for the petitioner has argued that the trial Court has committed gross irregularity and illegality in rejecting the application. Only on the basis of irrelevant facts and without considering the fact that the same is based on subsequent event, impugned order has been passed. He has also argued that the proposed amendments are necessary to decide the matter in controversy effectually and completely to adjudicate between the parties. Hence, it is prayed that present petition be allowed by quashing the impugned order. 5. He has also argued that the proposed amendments are necessary to decide the matter in controversy effectually and completely to adjudicate between the parties. Hence, it is prayed that present petition be allowed by quashing the impugned order. 5. Learned counsel for the respondent opposed the prayer and supported the impugned order by which application under Order VI Rule 17 of CPC has been allowed. He has drawn attention of this Court towards judgments Pratap and others Vs. Ganeshram and others, 2014 (2) MPLJ 464 , Nirmala Singh Vs. Mahendra Pratap Sharma, 2015 (3) MPLJ 93 and 2015 (1) MPLJ 92 . 6. I have heard learned counsel for the parties and perused the record. 7. In the relevant provision, under Order 6 Rule 17 of the CPC, it is specifically provided that "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 question 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. The court is to consider whether the petitioner provided sufficient grounds for amendment and whether the delay in filing the petition affects their claim". 8. The first part of the relevant provision empowers the Court to exercise discretion to order amendment of pleading at any stage of the proceedings. But the second part is imperative, that is, when the same is necessary for the purpose of determining the case in controversy between the parties. In this case, at the outset the amendment application was filed at the time of cross-examination of the respondent, and such amendment primarily appears to be necessary to determine the case. 9. In the case of Sampath Kumar Vs. Ayyakannu and Another reported in (2002) 7 SCC 559 , Hon'ble Apex Court has observed as under :- "An amendment once incorporated relates back to the date of the suit. 9. In the case of Sampath Kumar Vs. Ayyakannu and Another reported in (2002) 7 SCC 559 , Hon'ble Apex Court has observed as under :- "An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed." 10. Further, the law laid down by Hon'ble Apex Court in the case of Ashok Jain Vs. Ruchita Agnihotri and others reported in 2017 SCC OnLine MP 1361, is worth referring, which runs as under :- "A plain reading of amendment application makes, it clear that it is based on the alleged subsequent event. The court below solely rejected the application on the basis of Commissioner's report. The court below has not dealt with the aspect of subsequent event and its necessity for the purpose of amendment in the pleadings. The Apex Court in the case of Sampath Kumar Vs. Ayyakannu and another, (2002) 7 SCC 559 opined that an amendment, based on subsequent event is permissible. Such amendment may be necessary for avoiding multiplicity of litigation. In such amendment, recovery of possession can be sought for in the pending suit. It is further held that merits of averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing the prayer for amendment. The Apex Court reserved the right of defendants to take the stand in view of the amendment sought for by the plaintiff." 11. On going through the record, it is clear that the application for amendment of the written statement was rejected by the trial Court. The rejection was made on the ground that the case was fixed for several times before the trial Court, in spite of that, the petitioner has not submitted his reply and at the time of cross-examination, the above application has been filed proposing amendment in the written statement, hence, inconsistent plea cannot be allowed to be taken. The rejection was made on the ground that the case was fixed for several times before the trial Court, in spite of that, the petitioner has not submitted his reply and at the time of cross-examination, the above application has been filed proposing amendment in the written statement, hence, inconsistent plea cannot be allowed to be taken. I am unable to appreciate the ground of rejection made by the trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, it is difficult to understand how inconsistent plea could be said to have been taken by the petitioner in his application for amendment of the written statement, excepting the plea taken by the petitioner in the application for amendment of written statement. Accordingly, on facts, this Court is not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint or amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the petitioner cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. In this sequence, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. The judgments relied upon by learned counsel for the respondent are having different factual matrix, hence no benefit can be afforded to the respondent. 12. In view of above, this Court is of the considered opinion that if the proposed amendment appears to be just and proper to adjudicate the matter, it can be permitted to be incorporated. This Court also finds that any averment made in a plaint or Written Statement must be supported by evidence. 12. In view of above, this Court is of the considered opinion that if the proposed amendment appears to be just and proper to adjudicate the matter, it can be permitted to be incorporated. This Court also finds that any averment made in a plaint or Written Statement must be supported by evidence. In the absence of there being any evidence, the trial Court could not have implied that there was already evidence in regard to what has been stated in the Written Statement without recording any evidence in support of the amended pleading. 13. In the upshot of the aforesaid deliberations in entirety and considering the facts and circumstances of the case, this Court is of the view that the trial Court has wrongly dismissed the amendment application on the ground that the amendments are not necessary for fair and complete for adjudication after giving several opportunities of hearing to the petitioner. Therefore, the impugned order dated 15.05.2025 passed in RCSA No. 08/2023 is hereby set aside and present petition is allowed. 14. The petitioner is permitted to incorporate the amendments mentioned in the application and learned trial Court is directed to re-consider the same in accordance with law. 15. Accordingly, the miscellaneous petition is hereby disposed of.