Chattisgarh High Court
Chirag Taunk vs Naveena Taunk on 17 November, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
W.P(227) No.473 of 2022
Chirag Taunk S/o Mr. Shailesh J. Taunk Aged About 36 Years R/o
13/961, Dr. Pathak Hospital Lane, Beside Sindhu Sadan, Fafadih,
Raipur, District Raipur Chhattisgarh. At Present R/o 262 Maxome Av,
North York, Ontario Canada, Through His Power Of Attorney
Holder/father Namely Shailesh Taunk, S/o Jivram Taunk,aged About
62 Years, R/o Beside Sindhu Sadan, Pathak Hospital, Fafadih,
Raipur, District Raipur Chhattisgarh. ---- Petitioner
Versus
Naveena Taunk W/o Chirag Taunk, Aged About 33 Years D/o
Dharmendra Chawda, Aged About 33 Years, R/o Duplex No. 53,
Salarsar Greens, Main Road, Sarona Raipur, District Raipur
Chhattisgarh. ----Respondent
For the Petitioner: Shri Manoj Paranjpe, Advocate.
For Respondent: Shri Lukesh Kumar Mishra, Advocate.
Hon'ble Shri Justice Deepak Kumar Tiwari
Order on Board
17.11.2022
1. This Petition has been filed challenging the order dated
11.07.2022 passed by the 1st Additional Principal Judge, Family
Court, Raipur whereby, the application filed under Order 6 Rule 17
CPC has been rejected.
2. Shri Paranjpe, learned Counsel for the Petitioner submits that
prior to framing of issues, the amendment application has been filed
to incorporate certain subsequent developments and the Court below,
without examining whether said amendment is necessary for fair and
complete adjudication of the controversy involved, dismissed the
same in a mechanical manner, whereas the matter relates to the
matrimonial disputes. He placed his reliance on the judgment
rendered in the matter of Life Insurance Corporation of India vs.
Sanjeev Builders Private Limited and another reported in AIR 2022
SC 4256, wherein following conclusion has been made:-
(ii) All amendments are to be allowed which are
necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word "shall", in the latter
part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and
proper adjudication of the controversy between
the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in
injustice to the other side,
(b) by the amendment, the parties
seeking amendment does not seek to
withdraw any clear admission made by
the party which confers a right on the
other side and
(c) the amendment does not raise a time
barred claim, resulting in divesting of the
other side of a valuable accrued right (in
certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
(i) by the amendment, a time barred claim is
sought to be introduced, in which case the fact
that the claim would be time barred becomes a
relevant factor for consideration,
(ii) the amendment changes the nature of the
suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a
valid defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be
compensated by costs.
(vi) Where the amendment would enable the court to
pin-pointedly consider the dispute and would aid in
rendering a more satisfactory decision, the prayer for
amendment should be allowed.
(vii) Where the amendment merely sought to introduce
an additional or a new approach without introducing a
time barred cause of action, the amendment is liable
to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars
in the plaint.
(ix) Delay in applying for amendment alone is not a
ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could be
allowed and the issue of limitation framed separately
for decision.
(x) Where the amendment changes the nature of the
suit or the cause of action, so as to set up an entirely
new case, foreign to the case set up in the plaint, the
amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in
the plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is
required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be
liberal in its approach. The court is required to bear in
mind the fact that the opposite party would have a
chance to meet the case set up in amendment. As
such, where the amendment does not result in
irreparable prejudice to the opposite party, or divest
the opposite party of an advantage which it had
secured as a result of an admission by the party
seeking amendment, the amendment is required to be
allowed. Equally, where the amendment is necessary
for the court to effectively adjudicate on the main
issues in controversy between the parties, the
amendment should be allowed. "
He therefore submits that the Petition may be allowed and the
other side may be permitted to file consequential amendments in their
written statements, if they so desire.
3. Shri Mishra, learned Counsel for the Respondent does not
contest the submission made by learned Counsel for the Petitioner.
4. Having considered the submissions made and the guiding
principles rendered in the matter of Life Insurance Corporation of
India vs. Sanjeev Builders Private Limited and another (supra), also
further considering that issues have not yet been framed and prior to
it, such application has been filed and normally the Court allows such
amendment which is necessary for fair and complete adjudication of
the controversy involved in the matter, the order impugned is quashed
and the application filed by the Petitioner under Order 6 Rule 17 CPC
is allowed and the concerned Family Court is directed to permit the
Petitioner to carryout necessary amendment in the Plaint and also
grant appropriate liberty to the other side for filing consequential
amendments in their written statements.
5. With the aforesaid observation, the Writ Petition stands
disposed of.
6. A copy of this order be sent to the concerned Court for
necessary compliance.
Sd/-
(Deepak Kumar Tiwari)
Judge
Priya.
