Kerala High Court
Benjeena P.J vs C.P. Pappachan on 6 June, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
OP (FC) NO. 133 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 09.11.2023 IN OP NO.578
OF 2021 OF FAMILY COURT, NORTH PARAVUR
PETITIONER/S:
BENJEENA P.J, AGED 43 YEARS
W/O.C.P.PAPPACHAN, CHAKIATH HOUSE, THUNDATHUMKADAVU,
VARAPPUZHA.P.O,ERNAKULAM, PIN - 683517
BY ADVS.
G.KRISHNAKUMAR
B.S.SURAJ KRISHNA
AGNET JARARD
VINAY JOHN.A.J
RESPONDENT/S:
C.P. PAPPACHAN, AGED 69 YEARS
/O.KOCHAPPU (LATE), CHAKIATH HOUSE, MARKET JUNCTION,
CHETTIBHAGAM, VARAPPUZHA P.O, ERNAKULAM, PIN - 683517
BY ADVS.
SRI YASH THOMAS MANNULLY, FOR PARTY RESP.
SOMAN P.PAUL(K/000101/1980)
THIS OP (FAMILY COURT) HAVING COME UP FOR ADMISSION
ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(F.C.) No.133 of 2024 2
"CR"
JUDGMENT
Raja Vijayaraghavan, J.
This petition is filed challenging the order dated 09.11.2023 in
I.A.No.2 of 2023 in O.P.No.578 of 2023 on the files of the Family Court,
North Paravur, by which the application filed by the respondent for
amendment of the written statement was allowed.
2. Short facts are as under. For the sake of ease and clarity, the
parties shall be described as per their status before the Family Court.
a) The petitioner is the wife of the respondent. The Original
Petition was filed seeking to pass a decree declaring the matrimonial
status of the petitioner and the 1st respondent.
b) The respondent filed a written statement on 18.12.2019
contending inter alia that the marriage solemnized between the parties
was neither legal nor in accordance with the Cochin Christian Civil
Marriage Act, 1095 and in that view of the matter, no declaration, as
prayed for, can be granted.
c) While so, the respondent filed an application to amend
Ext.P2 written statement.
d) A detailed counter statement was filed pointing out that the
amendment sought, if allowed, will change the entire nature of the case
and the attempt of the respondent was to resile from his earlier version
and put up new contentions. It was contended that in respect of various
assertions made by the petitioner in the petition, in the earlier written
statement, only an evasive denial was made and if that be the case,
those averments are deemed to have been admitted.
3. We have heard Sri.G.Krishnakumar, the learned counsel
appearing for the petitioner and Sri.Yash Thomas Mannully, the learned
counsel appearing for the respondent.
4. Sri.G. Krishnakumar, the learned counsel appearing for the
appellant, reiterated the contentions in the petition. He contended that
the Family Court had erred in allowing the amendment application. Even
a casual perusal of the amendment application permitted to be
incorporated would reveal that the attempt of the respondent was to set
up a totally new case which was inconsistent from the earlier pleading.
The learned counsel would refer to Order VI Rule 17 and Order VIII Rule
4 of the Code of Civil Procedure and it was argued that the respondent
cannot be permitted to take away the admissions in the earlier pleadings.
To substantiate his contention, the learned counsel would rely on the law
laid down by the Apex Court in B.K. Narayana Pillai v.
Parameshwaram Pillai and Anr1 and Modi Spinning & Weaving
Mills Co. Ltd. and Another v. Ladha Ram & Co.2.
5. Sri. Yash Thomas Mannully, the learned counsel appearing
for the respondent, on the other hand, submitted that the petitioner had
initially filed a written statement. He later felt that certain further
clarifications had to be provided and it was in the said circumstances that
the application was filed. The learned counsel points out that the Family
Court has only partly allowed the application and had permitted only the
inclusion of paragraph Nos. 1 to 4, 6, 14, 15 and paragraphs 24 and 25.
This was on the premise that the amendment, which was sought to be
incorporated was necessary to determine the real question in controversy
and it was required for effective and proper adjudication on the
controversy between the parties. The learned counsel would also
highlight the contours of power exercisable by this Court under Article
227 of the Constitution of India and it is argued that unless the order
[(2000) 1 SCC 712]
[(1976) 4 SCC 320]
passed by the Family Court is blatantly perverse or has resulted in
flagrant miscarriage of justice, no interference is warranted. The learned
counsel would also rely on the principles laid down in B.K. Narayana
Pillai (supra), Modi Spinning & Weaving Mills Co. Ltd. and
Another (supra), Heeralal v. Kalyan and Ors.3 and Usha
Balashabeb Swami and Ors. v. Kiran Appaso Swami and Ors.4.
6. We have considered the submissions advanced and have
perused the entire records.
7. We find that the Original Petition was filed by the
petitioner/wife under Section 7 of the Family Courts Act, 1984. The
prayer sought for was for a declaration of her marital status. She had
contended that she had tied a Thali chain by her husband on 25.10.2015
before the Altar of Jesus Christ and her husband had accepted her as his
wife. She also contended that she had tied a Thali chain again at Chittur
Dhyanakendram on 8.11.2015 and that the parties had lived together as
husband and wife. When the marital status was disputed by the
husband, she approached the Family Court and filed the petition for
declaration.
1998 (1) SCC 278
2007 (5) SCC 602
8. Initially, a written statement was filed by the
respondent/husband, which is produced as Ext.P2. It is obvious that the
objection has been drafted ignoring the provisions of Order VI of the
CPC. Order VI Rule 2 specifically states that every pleading shall contain,
and contain only, a statement in a concise form, of the material facts
relied upon by a party in support of his claim or defence and the pleading
shall not contain evidence by which those facts are to be proved. It is
also settled law that pleadings need not contain detailed propositions of
law and pleading cannot contain argumentative paragraphs. We have no
doubt in our mind that the basic principle as enunciated in Order VI Rule
2 of the CPC have not been followed in the instant case. It appears the
respondent engaged a fresh lawyer, who felt that certain other aspects
are to be raised in the counter statement. This led to the filing of an
application for amending the written objection comprising about 37
pages. The Family Court noted that the major part of the proposed
amendment is targeted to deny the pleadings of the wife in the original
petition.
9. Before dealing with the question whether the amendment
sought for was rightly allowed by the Family Court, one may have to
advert to the provisions of law and the settled precedents of the Apex
Court.
10. The principle allowing or rejecting an amendment of the
pleadings has emanated from Order VI Rule 17 of the Code of Civil
Procedure, which reads as follows:
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.
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
11. Order VI Rule 17 of the CPC thus makes it clear that the
court is conferred with power, at any stage of the proceedings, to allow
alteration and amendments of the pleadings if it is of the view that such
amendments may be necessary for determining the real question in
controversy between the parties. The proviso to Order VI Rule 17 of the
Code, however, provides that no application for amendment shall be
allowed after the trial has commenced unless the court comes to a
conclusion that in spite of due diligence, the party could not have raised
the matter before the commencement of trial. However, proviso to Order
VI Rule 17 of the Code cannot be made applicable in the present case, as
the trial of the suit has not yet commenced.
12. The earliest precedent on the point which is often cited by the
Apex Court as well as this Court to hold that the courts should be liberal
in granting the prayer for amendment of pleadings unless serious
injustice or irreparable loss is caused to the other side or on the ground
that the prayer for amendment was not a bona fide one is the
observation of the Privy Council in the case of Ma Shwe Mya v. Maung
Mo Hnaung5. The Privy Council observed as follows:
All rules of court are nothing but provisions intended to secure the
proper administration of justice, and it is therefore, essential that
they should be made to serve and be subordinate to that purpose,
so that full powers of amendment must be enjoyed and should
always be liberally exercised, but nonetheless no power has yet
been given to enable one distinct cause of action to be substituted
for another, nor to change by means of amendment, the subject-
matter of the suit.
13. B.K. Narayana Pillai (supra), a suit was filed by A for
[AIR 1922 PC 249]
recovery of possession from B alleging that B was a licensee. In the
written statement, B contended that he was a lessee. After the trial
began, he applied for amendment of the written statement by adding an
alternative plea that in case B is held to be a licensee, the licence was
irrevocable. The amendment was refused. Setting aside the orders
refusing amendment, the Apex Court has observed as under:
The purpose and object of Order VI Rule 17 CPC is to allow either
party to alter or amend his pleadings in such manner and on such
terms as may be just. The power to allow the amendment is wide
and can be exercised at any stage of the proceedings in the
interests of justice on the basis of guidelines laid down by various
High Courts and the Supreme Court. It is true that the
amendment cannot be claimed as a matter of right and under all
circumstances. But it is equally true that the courts while deciding
such prayers should not adopt hypertechnical approach. Liberal
approach should be the general rule particularly in cases where
the other side can be compensated with the costs. Technicalities
of law should not be permitted to hamper the courts in, the
administration of justice between the parties. Amendments are
allowed in the pleadings to avoid uncalled for multiplicity of
litigation.
14. In Usha Balashaheb Swami (supra), the Apex Court had
occasion to elucidate the difference between the consideration of an
application for amendment of a plaint and a prayer for the amendment of
a written statement. After adverting to the law laid down by the Apex
Court in earlier precedents, it was held as follows in paragraph Nos. 15 to
17 of the judgment.
15. It is equally well settled principle that a prayer for
amendment of the plaint and a prayer for amendment of the
written statement stand on different footings. The general
principle that amendment of pleadings cannot be allowed so as to
alter materially or substitute cause of action or the nature of claim
applies to amendments to plaint. It has no counterpart in the
principles relating to amendment of the written statement.
Therefore, addition of a new ground of defence or substituting or
altering a defence or taking inconsistent pleas in the written
statement would not be objectionable while adding, altering or
substituting a new cause of action in the plaint may be
objectionable.
16. Such being the settled law, we must hold that in the
case of amendment of a written statement, the courts are more
liberal in allowing an amendment than that of a plaint as the
question of prejudice would be far less in the former than in the
latter case [see B.K. Narayana Pillai v. Parameswaran Pillai
[AIR 2000 SC 614] and Baldev Singh and Ors. v. Manohar
Singh [AIR 2006 SC 2832]. Even the decision relied on by the
plaintiff in Modi Spinning (supra) clearly recognises that
inconsistent pleas can be taken in the pleadings. In this context,
we may also refer to the decision of this Court in Basavan Jaggu
Dhobi v. Sukhnandan Ramdas Chaudhary (Dead). In that case,
the defendant had initially taken up the stand that he was a joint
tenant along with others. Subsequently, he submitted that he was
a licensee for monetary consideration who was deemed to be a
tenant as per the provisions of Section 15A of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947. This Court held
that the defendant could have validly taken such an inconsistent
defence. While allowing the amendment of the written statement,
this Court observed in Basavan Jaggu Dhobi's case (supra) as
follows:
As regards the first contention, we are afraid that the
courts below have gone wrong in holding that it is not
open to the defendant to amend his statement under
Order VI Rule 17 CPC by taking a contrary stand than
was stated originally in the written statement. This is
opposed to the settled law open to a defendant to take
even contrary stands or contradictory stands, the
cause of action is not in any manner affected. That will
apply only to a case of the plaint being amended so as
to introduce a new cause of action.
17. As we have already noted herein earlier that in
allowing the amendment of the written statement a liberal
approach is a general view when admittedly in the event of
allowing the amendment the other party can be compensated in
money. Technicality of law should not be permitted to hamper the
Courts in the administration of justice between the parties. In the
case of L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [(1957)
1 SCR 438], this Court observed "that the Courts are more
generous in allowing amendment of the written statement as the
question of prejudice is less likely to operate in that event". In
that case this Court also held "that the defendant has right to take
alternative plea in defence which, however, is subject to an
exception that by the proposed amendment the other side should
not be subjected to serious injustice."
15. The Apex Court has held in the case of an amendment of a
written statement, the defendant is entitled to take a new defence or to
take an inconsistent stand. In the case on hand, the main contention of
the learned counsel is that in the earlier written statement was filed,
there was only an evasive denial and in that view of the matter, the
assertions in the petition should be deemed to have been admitted. It is
settled law that even admissions can be explained and inconsistent pleas
can be taken in the pleadings as held by the Apex Court in Akshaya
Restaurant v. P. Anjanappa6.
16. In Revajeetu Builders and Developers v.
Narayanaswamy and Sons and Ors7., the Apex Court had formulated
the factors that are to be considered while considering an application for
amendment.
Factors to be taken into consideration while dealing with applications for
Amendments:
67. On critically analyzing both the English and Indian cases, some basic
[AIR (1995) SC 1498]
[(2009) 10 SCC 84]
principles emerge which ought to be taken into consideration while
allowing or rejecting the application for amendment.
(1) Whether the amendment sought is imperative for proper and
effective adjudication of the case?
(2) Whether the application for amendment is bona fide or mala
fide?
(3) The amendment should not cause such prejudice to the other
side which cannot be compensated adequately in terms of
money;
(4) Refusing amendment would in fact lead to injustice or lead to
multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case?
and
(6) As a general rule, the court should decline amendments if a fresh
suit on the amended claims would be barred by limitation on the
date of application.
17. In the case on hand, we find that the respondent has filed
an additional written objection consisting of about 37 pages. As rightly
noted by the Family court, each sentence and words in the Original
Petition are reproduced in the objection despite the fact that those
pleadings had been dealt with earlier in the written objection filed at the
first instance. The respondent has also attempted to narrate the
evidence that he proposes to bring out during trial. For reasons best
known, the details of the order passed in the earlier proceedings are also
narrated. We have no doubt that the pleadings are prolix, repetitive and
confusing. The Family court has however sifted the grain from the chaff
and is permitted only the addition of paragraph Nos. 1 to 4, 6, 14, 15
after holding that the said exercise was warranted to determine the real
question in controversy and for an effective and proper adjudication of
the disputes between the parties.
18. The scope and ambit of the power and jurisdiction by a High
Court under Article 227 was again explained by the Hon'ble Supreme
Court in Estralla Rubber v. Dass Estate (P) Ltd.8 It was held that
the High Court is not vested with any unlimited prerogative to correct all
kinds of hardships or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or Tribunals. The power under
Article 227 is to be exercised sparingly in appropriate cases like when
there is no evidence at all to justify or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the court
or Tribunal has come to and that it is axiomatic that such discretionary
relief must be exercised to ensure there is no miscarriage of justice. We
are satisfied that the Family Court has adverted to all the relevant facts
JT 2001 (7) SC 657
while allowing the application for amendment and no interference is
warranted.
This petition is dismissed.
sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
sd/-
P.M.MANOJ
JUDGE
das
APPENDIX OF OP (FC) 133/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORIGINAL PETITION O.P NO
578 OF 2023 ON THE FILES OF THE FAMILY COURT
NORTH PARAVUR
Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY
THE RESPONDENT HEREIN IN OP.NO. 128 OF 2019
ON THE FILES OF THE FAMILY COURT ERNAKULAM
Exhibit P3 TRUE COPY OF THE I.A. 530 OF 2020 IN O.P.
128 OF 2019 FILED BY THE RESPONDENT HEREIN
ON THE FILES OF THE FAMILY COURT ERNAKULAM
Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY
THE PETITIONER HEREIN WITH REGARD TO I.A.
530 OF 2020 IN O.P. 128 OF 2019 ON THE FILES
OF THE FAMILY COURT ERNAKULAM
Exhibit P5 TRUE COPY OF THE ORDER DATED 09.11.2023 IN
I.A. NO. 2/2023 IN O.P. NO. 578/2023 PASSED
BY THE FAMILY COURT, NORTH PARAVUR
RESPONDENT EXHIBITS
Exhibit R1 True copy of the judgment dated 06-12-2019
in Mat. Appeal No. 468 of 2019 of this
hon'ble court
Exhibit R6 True copy of relevant page of SSLC Duplicate
Register of Petitioner
Exhibit R3 True copy of the certificate dated
13-05-2010 issued by Village Officer,
Poothadi
Exhibit R4 True copy of the order dated 28-11-2018 in
Bail Application No. 8016 of 2018 of this
hon'ble court
Exhibit R5 True copy of the Voter ID and Aadhaar card
of the Petitioner
Exhibit R2 True copy of the Amended Written Objection
in O.P. No 578 of 2019 before Family Court,
N. Paravur
