Neeta Yadav vs Indrajeet Yadav
2022 Latest Caselaw 12466 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
Court No. - 70
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4777 of 2022
 

 
Petitioner :- Neeta Yadav
 
Respondent :- Indrajeet Yadav
 
Counsel for Petitioner :- Mata Pher
 
Counsel for Respondent :- Raj Singh,Nitin Raj Singh
 

 
Hon'ble Piyush Agrawal,J.

1. Heard Mr. Mata Pher for the petitioner and Mr. Raj Singh for the respondents.

2. The present petition under Article 227 of the Constitution has been filed for sitting aside the impugned order dated 27.5.2022 passed by the Additional Principal Judge, Family Court, Sant Kabirnagar.

3. Learned counsel for the petitioner submits that the respondent filed a matrimonial case registered as Case No. 13 of 2016 (Indra Jeet Yadav Vs. Neeta Yadav) for dissolution of marriage under Section 13 of Hindu Marriage Act, 1955. The petitioner has submitted her reply therein on 2.2.2018 denying the allegation made by the respondent. During pendency of the said case, an amendment application was filed by the petitioner in which the respondent filed his objection on 26.5.2022. He submits that when the difference arose between the petitioner and the respondent, a counselling took place on 15.1.2015 at Aastha Cell, Headquarters Central Command, Lucknow and the respondent wrote a letter dated 16.1.2015 to the Chairman, Aastha Cell, Headquarters Central Command, Lucknow stating therein that he was satisfied with the counselling and willing to live happy married life with her wife i.e. petitioner. He submits that the said letter dated 16.1.2015 was not available with the petitioner, therefore, she could not file the same along with the written statement / objection and after getting the same, an amendment application has been moved which was rejected by the court below in an illegal and arbitrary manner.

4. Per contra, learned counsel for the respondent submits that amendment application has only been filed with intention to linger on the proceeding and the same is pending at the behest of the petitioner.

5. The court has perused the records.

6. The record reveals that some matrimonial dispute arose between the parties in which counselling took place in Aastha Cell, Headquarters Central Command, Lucknow and thereafter husband -respondent wilfully wrote a letter dated 16.1.2015, to the Chairman stating therein that he should take care his wife and live happily with her. But later on, case has been filed for dissolution of marriage on various allegations, which has been denied by the petitioner-wife. As and when the said letter was available with the petitioner she moved an application for amendment.

7. Supreme Court in Baldev Singh and others Vs. Manohar Singh and another, 2006 6 SCC 498 has held as under:

9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides 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 questions in controversy between the parties. A bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 of the CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court shall allow amendment of pladings if it finds that delay in disposal of Suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 a proviso has been added to Order 6 Rule 17 which restricts the Courts from permitting an amendment to be allowed in the pleadings either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, Court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So far as proviso to Order 6 Rule 17 of the Code of Civil Procedure is concerned, we shall deal with it later.

15. Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are 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 and 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 plaintiff 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. Accordingly, 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.

16. This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co.Ltd. & Anr. Vs. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.

17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.

18. For the reasons aforesaid, we are of the view that the High Court as well as the trial court erred in rejecting the application for amendment of written statement. Accordingly, the orders of the High Court and the trial court are set aside, the application for amendment of written statement is allowed. The defendants/appellants are directed to file an amended written statement within a period of one month from the date of production of this order before the trial court positively. Considering the facts and circumstances of this case, we direct the trial court to dispose of the suit within a period of one year from the date of communication of this order to it. The appeals are allowed. There will be no order as to costs.

Hon'ble the Apex Court in the aforesaid case had clarified that the amendment can be permitted so that real controversy raised between the parties can be determined. Further the amendment can also be permitted at any stage of proceedings.

8. Supreme Court in Mohinder Kumar Mehra Vs. Roop Rani Mehra, 2018 2 SCC 132 has held as under:-

4.This Court in Chander Kanta Bansal Vs. Rajinder Singh Anand, (2008) 5 SCC 117 has noted the object and purpose of amendment made in 2002. In Para 13, following has been held:-

"13. The entire object of the said amendment is to stall filing of applications for amend- ing a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out enter- taining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases."

In the aforesaid case, Hon'ble the Apex Court has held that amendment can be made at any stage and there is no complete bar and only put a rider that after the trial being commenced no amendment can be permitted.

9. This Court in the case of Abdul Mateem Vs. Mehandi Hasan, 2006 3 AWC 3101 has held as under :-

25. In the case of Hanumant Singh Rawat v. Rajputana Automobiles, Ajmer (1993) 1 WLC 625, Rajasthan High Court summarized the legal position as under:

(i) That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties ;

(ii) The amendment of the pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even Inconsistent pleas can be allowed to be raised by amendment in the pleadings ;

(iii) However, amendment of pleadings cannot be allowed so as to completely alter the nature of the suit ;

(iv) Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real questions in the controversy between the parties ;

(v) The amendment should be refused where the plaintiffs suit would be wholly displaced by the proposed amendment;

(vi) Where the effect of the amendment would be to take away from the defendant a legal right which has occurred to him by lapse of time or by operation of some law ;

(vii) The amendment in the pleadings should not be allowed where the Court finds that amendment sought for has not been made in good faith or suffers from lack of bonafides ; and

(viii) Ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings.

28. However, having regard to the entire facts and circumstances of the case, writ petition is allowed on the payment of cost of Rs. 10,000. In case if cost is paid within one month, amendment application stand allowed. Both the parties shall appear before the trial court on 22.5.2006, alongwith certified copy of the order. Trial court may allow the petitioner to incorporate the amendment and may fix the date for further proceedings. Trial court is directed to decide the suit expeditiously preferably within a period of six months.

In the aforesaid case, Hon'ble the Apex Court has held that the amendment of pleadings should ordinarily be allowed and cannot be refused. The amendment of pleadings cannot be allowed so as to completely alter the nature of the suit.

10. On perusal of the aforesaid judgments of Hon'ble the Apex Court as well as this Court, it is evident that amendment can be permitted at later stage and should not be rejected summarily. In the case in hand, it is admitted between the parties that the trial has yet to begun. In other words the trial has not commenced till date.

11. In view of above, the petition is allowed. The impugned order dated 27.5.2022 passed by the Additional Principal Judge, Family Court, Sant Kabirnagar is set aside. The amendment application stands allowed subject to payment of Rs. 4000/- (Rs. four thousand) by the petitioner within 15 days before the court below. In case the cost is paid by the petitioner, the trial court shall permit the petitioner to incorporate the proposed amendment. The parties are directed to appear before the court below on 26.09.2022 along with certified copy of this order and the court below shall proceed with the case, in accordance with law, and try to conclude the same, expeditiously without granting any unnecessary adjournments to either of the parties.

Order Date :- 12.9.2022

Rahul Dwivedi/-