Allahabad High Court
Smt. Shakuntala vs Ramashray Yadav on 14 November, 2018
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 8150 of 2018
Petitioner :- Smt. Shakuntala
Respondent :- Ramashray Yadav
Counsel for Petitioner :- Ram Kesh,Rakesh Pande
Counsel for Respondent :- Santosh Kumar Shukla
Hon'ble Manoj Misra,J.
A supplementary-affidavit has been filed today, which is taken on record.
In the supplementary-affidavit, it has been stated that the petitioner has not accepted the costs which was imposed by the impugned order while allowing amendment application.
Heard Sri Rakesh Pande for the petitioner; Sri S.K. Shukla for the plaintiff-respondents; and perused the record.
The instant petition has been filed for setting aside the order dated 12.10.2018 passed by the Additional District Judge/FTC IInd, Ghaziabad in Case No. 2035 of 2015 by which the court below has allowed amendment sought in the plaint on costs of Rs. 500/-.
The amendment sought in the plaint is to change the date mentioned in paragraph 16 of the plaint from 13.12.2015 to 18.12.2015.
The plaintiff-respondent had filed a petition under Section 13 of the Hindu Marriage Act for seeking divorce from the petitioner.
In paragraph 16 of the plaint, it was stated that the plaintiff had visited the house of the defendant on 13.12.2015 and there he was assaulted.
By amendment, this date was sought to be changed to 18.12.2015.
The amendment was resisted by the defendant-petitioner on the ground that in respect of an incident dated 13.12.2015, a first information report was lodged against the plaintiff-respondent in which, after investigation, charge-sheet was submitted in connection with which a trial is in progress.
It is the case of the petitioner that the presence of the plaintiff-respondent in the house of the petitioner on 13.12.2015 would therefore be a material fact in the criminal trial. Hence, to wriggle out from such an admission, the plaintiff-respondent has sought amendment in the plaint so as to change the date 13.12.2015 to 18.12.2015. It has been submitted that, under the circumstances, the amendment sought is a mala fide amendment and should not be allowed.
The learned counsel for the plaintiff-respondent has submitted that the trial in the suit has not yet commenced and in the amendment application it has been stated that the date 13.12.2015 was mentioned by typographical mistake when it ought to have been 18.12.2015. It has been submitted that whether the amendment sought takes away any valuable admission or causes prejudice to the other side is to be judged on the basis of its effect on the proceeding in which the amendment of the pleading has been sought and not in the context of some other proceeding. It has been submitted that by changing the date 13.12.2015 to 18.12.2015, neither the nature of the plaint case changes nor any prejudice is caused to the defendant in the divorce suit proceeding. As to what effect the amendment would have in the criminal trial is immaterial as it would have to be judged in the context of the evidence led in the criminal trial and therefore that should not weigh on the court while taking a decision on the amendment application.
I find substance in the submission of the learned counsel for the plaintiff-respondent.
Whether an amendment sought in the pleading is to be allowed or not has to be judged in the context of the proceedings in which the amendment of the pleading has been sought. As to what effect the amendment would have on some other proceeding would not be material because each proceeding has to be decided on the basis of evidences collected therein. The case taken in the plaint is not materially altered by altering the date 13.12.2015 to 18.12.2015. The plaint has been filed to demonstrate that the plaintiff-respondent has suffered cruelty at the instance of the defendant. Whether an incident which may be illustrative of cruelty occurred on 'X' date or 'Y' date is a question which has to be established on the basis of the evidence led in the divorce proceeding. On mere change of date of the incident, neither the nature of the divorce suit alters nor any prejudice is caused to the defendant in these divorce proceedings. More so, when it has not been shown that the parties have led their evidence. As to what effect the amendment would have on the criminal trial, is not a relevant consideration to refuse amendment because the court dealing with the criminal trial has to decide that matter on the weight of the evidence led before it. The contention of the learned counsel for the petitioner that by such alteration in the date serious prejudice would be caused to the defendant-petitioner in the proceedings of the criminal trial, therefore amendment prayer should be refused, is misconceived.
As the amendment does not change the nature of the divorce case and is also not shown to be barred by any legal provision, no case for interference with the order impugned is made out.
The petition is dismissed.
Order Date :- 14.11.2018
Sunil Kr Tiwari
