Nikhil Bhatji Wale vs Smt. Pragati
2021 Latest Caselaw 4935 MP

         HIGH COURT OF MADHYA PRADESH,
               BENCH AT GWALIOR
                 M.P.No.4043/2019
               ( Nikhil Bhatji Wale Vs. Smt. Pragati )
                                 (1)

Gwalior, dated : 02.09.2021

      Shri Bhagwan Raj Pandey, learned counsel for the petitioner

through video conferencing.

      Shri B.B.Shukla, learned counsel for the respondent.

Heard with the consent of both the parties.

In this petition under Article 227 of the Constitution of India,

the petitioner has assailed the validity and propriety of the order

dt.11.07.2019 (Annexure P/1) passed in case No.207A/2014 (HMA)

(Old No.464/2014 HMA) passed by the Additional Principal Judge,

Family Court Gwalior, whereby the application under Order 6 Rule

17 of CPC as well as application under Order 8 Rule 1-A(3) of the

CPC have been rejected.

The brief facts leading to filing of this case are that the

respondent has filed a petition under Section 13(1) of Hindu

Marriage Act (hereinafter shall be referred to as the Act) on

25.06.2014 before the Family Court, Gwalior alongwith an

application under Section 24 of the Act for dissolution of marriage

on the ground of cruelty and has claimed an amount of Rs.30,000/-

p.m. as maintenance. The petitioner filed detailed written statement

denying the allegations levelled by the respondent. Reply to the

application under Section 24 of the Hindu Marriage Act was also

filed denying the claim on the ground that respondent is living

separately on her own will. The petitioner after two years of the

filing of the divorce petition came to know that the respondent/wife HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.4043/2019 ( Nikhil Bhatji Wale Vs. Smt. Pragati )

has re-married with one Amit Chourasiya, hence, it became

necessary for the petitioner to move an application for amendment in

the written statement on the basis of subsequent development.

Another application under Order 8 Rule 1-A(3) of the CPC was also

filed alongwith documents and photographs to be taken on record.

The respondent filed reply to both the applications denying the

allegations made in the application. In reply, the respondent also

stated that the petitioner had also moved same kind of application on

25.04.2017, which was rejected.

After hearing both the parties, learned Family Court dismissed

both the applications vide impugned order dt.11.07.2019 on the

ground that the similar application filed on 25.04.2017 has been

rejected by the Family Court and that the present application for

amendment is similar to that of the earlier application for

amendment.

Learned counsel for the petitioner submitted that the

application ought to have been allowed on the basis of subsequent

development. He relied on the judgments of the Hon'ble Apex Court

in the case of Baldev Singh and others Vs. Manohar Singh and

another reported in (2006) 6 SCC 498, Sampath Kumar Vs.

Ayyakannu and another reported in (2002) 7 SCC 559, Usha

Balashaheb Swami and others Vs. Kiran Appaso Swami and

others reported in (2007) 5 SCC 602, and also of this court in the

case of Kewal Singh Thakur and others Vs. Oriental Farmers HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.4043/2019 ( Nikhil Bhatji Wale Vs. Smt. Pragati )

and Builders Pvt. Ltd. and another reported in 2019 (1) MPLJ

638.

Learned counsel for the petitioner contended that on bare

perusal of the Order 6 Rule 17 of CPC, it is 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 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.

The petitioner is seeking amendment in the written statement.

Therefore, the prayer for amendment of the plaint and prayer for

amendment in the written statement stand on different footings. As

such trial court ought to have allowed the amendment as well as

consequential amendment under Order 8 Rule 1-A(3) of CPC.

On the other hand, learned counsel for the respondent

vehemently opposed the application and submitted that the Family

Court has not committed any error so as to cause interference by this

Court. The basic reason for rejecting the application under Order 6

Rule 17 of CPC is that on earlier occasion on 25.04.2017 the

petitioner had filed the similar application which was rejected. Such

order was not challenged nor any application is filed by the

petitioner to show that the cause of action of both the applications HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.4043/2019 ( Nikhil Bhatji Wale Vs. Smt. Pragati )

are different. The trial court has rightly came to the conclusion that

basically the contents of both the applications are similar and the

present application has been filed only with a view to delay

proceedings. Petition deserves to be dismissed.

Heard learned counsel for the parties.

Admittedly, the suit for divorce has been filed under Section

13 of the Act and the case is at the stage of recording of evidence.

Respondent/plaintiff has already filed the affidavits long back.

Identical application filed on 25.04.2017 has been rejected by the

court below which was never challenged nor copy of the order as

well as the application has been filed by the petitioner to show that

the present application as well as earlier applications are not similar

or identical. The discretion to deal with the prayer for amendment

has been exercised by the Family Court on the sound principles of

law. Even otherwise it is well settled in law that the jurisdiction of

this Court under Article 227 of the Constitution of India, can not be

exercised to correct all errors of a judgment of a court acting within

its limitation. It can be exercised where the orders are passed in

grave dereliction of duty or in flagrant abuse of fundamental

principles of law and justice. [See: Jai Singh and others vs. M.C.D.

and others (2010) 9 SCC 385 and Shalini Shyam Shetty Vs.

Rajendra Shankar Patil (2010) 8 SCC 329].

In the instant case, the impugned order is not passed in

violation of fundamental principles of law and justice warranting HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR M.P.No.4043/2019 ( Nikhil Bhatji Wale Vs. Smt. Pragati )

interference by this Court under Article 227 of the Constitution. The

judgments relied on by the learned counsel for the petitioner are not

applicable to the present facts and circumstances of the case. In view

of the preceding analysis, the writ petition fails and is hereby

dismissed.

The interim order granted by this Court on earlier occasion

shall stand vacated.

The Trial Court is directed to proceed with the trial in

accordance with law as expeditiously as possible.

(S.A.Dharmadhikari) Judge SP SANJEEV KUMAR PHANSE 2021.09.04 10:39:40 +05'30'