Basic principles for deciding application for amendment of pleading

Orissa High Court

Smt. Sunanda Kar Alias Ratha
vs
Sudip Ratha

on 29 November, 2005
Equivalent citations: AIR 2006 Ori 80, I (2006) DMC 695, 2006 (1) OLR 4

Bench: L Mohapatra
JUDGMENT L. Mohapatra, J.

1. This writ application is directed against the order dated 30th April, 2005 passed by the learned Civil Judge (Senior Division), Puri in M.A.T. No.227 of 2002 allowing an application for amendment of the plant.

2. From the impugned order, it appears that the opposite party had initially filed a suit under Section 12 of the Hindu Marriage Act (hereinafter called ‘the Act’) for annulment of the marriage and the said suit was filed as the parties had not completed one year of marriage. During pendency of the said suit, certain developments took place and after three years of marriage, the present application under Order 6, Rule 17 C.P.C. for amendment of the plaint was filed to bring the suit within the purview of Section 13 of the Act and in order to bring the suit under Section 13 of the said Act, certain developments which are said to have taken place after filing of the suit under Section 12 were also pleaded.

3. The petitioner resisted the petition for amendment on the ground that a suit under Section 12 and a suit under Section 13 of the Act involve completely different questions and, therefore, there is hardly any scope for amendment of the plaint to the above extent. It was also contended by the learned counsel for the petitioner that the opposite party should withdraw the suit filed under Section 12 of the Act and file a fresh suit under Section 13 of the Act.

4. The learned Civil Judge (Sr. Division) in the impugned order allowed the application by holding that no prejudice would be caused to the petitioner, if the amendment is allowed and that the proposed amendment does not change the nature and character of the suit.

5. Shri Das, the learned counsel appearing for the petitioner challenged the impugned order on the ground that the application filed under Section 12 as well as under Section 13 of the Act is not maintainable. According to Shri Das, the grounds on which an application under Section 12 can be filed are completely different than the grounds on which an application under Section 13 of the Act can be filed. Both the sections provide distinct grounds for filing application and, therefore, one application under both the sections is not maintainable. It was also contended by Shri Das that it was open for the opposite party to withdraw the suit filed under Section 12 of the Act and file a fresh suit under Section 13 of the Act.

6. Shri Ashok Mukherji, learned Senior Counsel appearing on behalf of the opposite party supporting the impugned order contended that the ground of cruelty taken in the application under Section 12 of the Act is also available to be taken under Section 13 of the Act. Since the entire suit is based on such ground, it makes no difference, if the suit is entertained both under Sections 12 and 13 of the Act. Shri Mukherji also contended that in exercise of writ jurisdiction, it may not be open for the Court to interfere with the impugned order which is based on sound reasons.

7. In order to appreciate the rival contentions of the parties, it is necessary to refer to Sections 12 and 13 of the Act. Section 12 of the Act provides that an application under the said provision can only be filed within one year of the marriage. It further provides that an application under the said provision can be filed on four grounds as specified in the said provision. The grounds are :-

(a) that the marriage has not been consummated owing to the impotence of the respondent;

(b) that the marriage is in contravention of the conditions specified in clause (ii) of Section 5;

(c) that the consent as required under Section 5 was obtained by force or by fraud; and

(d) that the respondent at the time of marriage was pregnant by some person other than the plaintiff.

Under Section 13 of the Act, the grounds for divorce are completely different. On perusal of the petition filed under Section 12 of the Act, it appears that the allegations with regard to mental cruelty have been made. In the application for amendment certain developments which had taken place subsequent to filing of the suit relating to mental cruelty are sought to be included. In the application filed under Section 12 of the Act, the grounds on which such application is maintainable do not appear to have been taken at all. True it is, the grounds on which the application under Section 12 had been filed are the grounds available under Section 13 of the Act and, therefore, after completion of one year of marriage, the amendment has been sought for amending the petition under Section 13 of the Act.

8. Shri Mukherji, learned Senior Counsel appearing for the opposite party relied on a decision of the Apex Court in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gourgaon on the question of amendment. The Apex Court in the said decision held that allowing an application for amendment is discretion of the Court and such amendment should not be refused on the technical ground. Relying on the aforesaid decision, it was contended by the learned counsel that the objection raised is only on technical ground and on such technical ground, the amendment cannot be refused. Shri Mukherji also relied upon a decision of this Court in. the case of Smt. Rebati Rout v. State of Orissa and Ors. reported in 700 (2005) C.L.T. 509 to say that in exercise of jurisdiction under Section 227 of the Constitution of India, the High Court does not function as an Appellate Court and unless the finding of an authority is palpably illegal, contrary to law and/or shocking to commonsense, the same should not be interfered with.

Shri Das, on other hand, in this regard relied upon a decision of the Apex Court in the case of Surya Dev Rai v. Ram Chandra Rai and Ors. in which the Apex Court has laid down the guidelines with regard to the jurisdiction the Court may exercise under Article 227 of the Constitution. In the said decision the Apex Court has held that supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

As held earlier the grounds for filing an application under Section 12 of the Act and the grounds for filing an application under Section 13 of the Act are different. Therefore, in my considered view, an application under Section 12 as well as under Section 13 of the Act will not be maintainable. However, from the averments made in the petition filed under Section 12 as well as the proposed amendment, it appears that allegations have been made to make out a ground for divorce under Section 13 of the Act. Therefore, amendment to the said extent is permissible and there is no need for the Court to interfere to that extent. Relying on the decisions cited by the learned counsel for both the parties, I am of the view that by way of amendment the Court could not have allowed the application to be filed under both the provisions of law and it can only be under Section 13 of the Act. The facts sought to be incorporated by way of amendment relate to allegations of cruelty, which had taken place after filing the suit under Section 12 of the Act. These allegations being subsequent events can be incorporated in the petition.

9. I, therefore, allow the writ application in part and hold that for ends of justice between the parties considering the prayer to be included in the proposed amendment, the application be treated as an application under Section 13 of the Act and not under both the provisions of the Act. Though there is no prayer for deleting Section 12 from the cause title, having held that the application is not maintainable under both the sections, I hold that the application is maintainable only under Section 13 of the Act and accordingly the trial Court is directed to proceed with the case as if it has been filed under Section 13 of the Act in accordance with law.

Under the circumstances, there shall be no order as to costs.

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