C.R. No. 1131 of 2010 -1- ***** IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 1131 of 2010 (O&M) Date of Decision : 01.09.2010 Neelu Gupta alias Neelam Gupta .......... Petitioner Versus Sandeep Gupta ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. K.S. Bassi, Advocate for the petitioner. Mr. Vijay Sharma, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 28.1.2010, passed by the learned Addl. District Judge (Fast Track Court), Patiala, vide which application moved by the petitioner for amendment of the written statement has been declined. The petitioner after commencement of trial, filed an application for amendment of pleading as under :- “(i) In paragraph 5 of the written Statement Line No. 13 after the word “Jewellery Cash” and before the word “Ultimately” the following lines are required to be added :- “The petitioner Sandeep Gupta had been torturing both physically and mentally to the C.R. No. 1131 of 2010 -2- ***** respondent / deponent and her entire family. The petitioner being a very greedy person and always looking for money from the parents of the respondent and had fixed his eyes on their property saying all the times they did not have a son, it would come to him. The father of the respondent spent Rs. 700000/- on the marriage and had been paying him money at different occasions so that respondent could be accommodated in her in-laws house, but this would never satisfy the petitioner, his father and other members of the family. The entire Jewellery and gifts as well the Articles of Dowry of the respondent are in possession of the petitioner.” (ii) That at the end of para no.5 of the Written Statement after the word “Respondent.” the respondent wants to add the following lines :- “The petitioner did not keep his word or undertaking given before the Hon'ble High Court and deserted the respondent and her child Gazal, after six – seven months again. The petitioner tortured the respondent for giving birth to the girl child because simultaneously a second son was born to sister of the respondent namely Kailash wife of Sh. Makhan Lal, for which he inflicted grave cruelty on the respondent out of jealousy. The petitioner gave a very sever beating to the respondent for giving birth to a girl child. The respondent being an Educated Lady always treated the petitioner and other members of his family with respect and tried to make her C.R. No. 1131 of 2010 -3- ***** married life a happy one. On the other hand the petitioner has been torturing continuously not only to the respondent but her parents as well, knowing fully well that father of the respondent was a patient and had a very week heart. The petitioner gave a fake Telephone Call to the father of the respondent, who was at Barnala with the elder sister of the respondent, conveying that the respondent tried to commit the suicide and confined to Rajindera Hospital, Patiala. He also managed to convey the same message and condition through his fake Doctor friend to father of the respondent. The father of the respondent along with his son-in-law Makhan Lal and sister Kailash came to Patiala in the midnight at 1.00 A.M. They were shocked to learn that nothing had happened as the respondent was at home hail and hearty and the petitioner kept hidden the whole episode from her. He made mockery of the entire incident and started laughing at all of us knowing fully well that this kind of the torture and shock could prove fatal to the father of t he respondent. The petitioner after the death of the father of the respondent deliberately had been giving threatening calls to the mother of the respondent, telling her that he would divorce the respondent. The mother of the respondent Smt. Kamlesh could not bear such repeated calls by the petitioner and she died due to the shocks and threats given by the petitioner within four months of the death of father of the respondent. C.R. No. 1131 of 2010 -4- ***** (iii) That at the end of the para no. 16 of the Written State after the word “High Court”, the respondent wants to add the following lines :- “ On the other hand despite of such cruelty inflicted by the petitioner on the respondent and her parents, the respondent did not disappoint both petitioner and his father when they came to the respondent for serving Smt. Kamlesh wife of Pawan Kumar, mother of the petitioner when she fell ill that to during the pendency of the present petition. The respondent without giving it a second thought immediately went with the petitioner and his father Pawan Kumar to take care of her mother-in-law despite of litigation pending between the petitioner and respondent during that period. The respondent stayed there for 15 days. The mother of the petitioner died on 16-7-2007 and t he respondent stayed there till the Bhog Ceremony and thereafter the petitioner and his father turned out the respondent and her daughter Gazal from their house after accomplishing their task of putting up a good show before the relatives and people. Such is the cruel mind of the petitioner. The respondent suffered heavy losses even during those days as in her absence a theft was committed in the house at Purani Anaj Mandi, Patiala where she was living along with her daughter Gazal. An F.I.R. No. 299 dated 22-7-2007 P.S. Kotwali, Patiala was also lodged, nothing could be recovered thereafter. The respondent did her best to rehabilitate the broken family with the C.R. No. 1131 of 2010 -5- ***** petitioner and her mother-in-law even at the last moment of her life whereas the petitioner did exactly the opposite to the respondent at the time of demise of her mother. The daughter Gazal was crying over the dead boy of Smt. Kamlesh wife of Bihari Lal, the mother of the respondent and this cruel petitioner in the presence of all the relatives passed extremely sarcastic remarks asking Gazal to keep quite, as now, the entire property would come to her, she should rather be happy. He further asked the sister of the respondent to give power attorney in his name, as he would manage the property himself. These remarks annoyed everybody in the family and respondent was shocked to her the same. There comes to no end to the miseries of the life of the respondent, seldom a day would have passed when the respondent did not cry. Now the petitioner is not maintaining the respondent and wants to get married. The expenses for the education of the daughter Gazal are being paid by the uncle of the respondent namely Kulwant Rai Jindal, Advocate and his son Rattan Jindal, Advocate at Sirsa. The petitioner did not only harassing and abusing the respondent on each and every date in the Court during the pendency of the cases but he has been constantly putting the respondent in the trouble by hiring bad characters in the society. The petitioner on 11-2-2009 forcibly entered the house of the respondent along with a shop keeper Ashraf opposite to the house of the respondent. He C.R. No. 1131 of 2010 -6- ***** had been instigating Ashraf to tease Gazal as he wanted to get this house vacated from the respondent. The petitioner along with Ashraf had beaten the respondent and also a sked Ashraf to give slaps to her daughter, which he did. The neighbourers came to their rescue and the petitioner ran away on his Scooter whereas Ashraf was apprehended on the spot. The Police arrested Ashraf and also thrashed him ultimately forcing him to leave the shop itself as he was big nuisance for the respondent at the instigation of the petitioner.” (iv) That at the end of the para no. 18 of the Written Statement after the word “1997”, the respondent wants to add the following lines :- “The petitioner in order to put pressure on the respondent for vacating the house of Purani Anaj Mandi, Patiala, which was given to her for the purpose of residence played so many tricks. He parked his car in this house and lodged a false F.I.R. with the Police to the effect that in the Car Rs. 50,000/- (Rupees Fifty Thousand) was also lying. The Police recovered the car from the house of the respondent, then the petitioner apologized from the Police and t he recovery was shown from some where else in order to save the petitioner from lodging a false F.I.R. The miseries of the respondent did not end here as the petitioner in collusioin with the Bank Officials played yet another fraud with the respondent. The petitioner during the pendency of the litigation with the respondent paid her back Rs. 60,000/- (Rupees Sixty C.R. No. 1131 of 2010 -7- ***** Thousand) taken from her and deposited in the F.D.R., fraudulently getting signed all the papers of the Loan on the same date from the respondent and within 10 days took away the money from the Bank with the help of officials. The petitioner also got issued fraudulently the cheque of remaining amount and paid to the respondent as maintenance in the Court, for which a complaint is pending against him. The petitioner played yet another fraud with the respondent in collusion with the Police officials of Civil Lines, Patiala. The petitioner falsely got an F.I.R. registered of an accident, which the respondent and daughter Gazal met with the Maruti Car whereas the respondent was living separately from him at that time. Later on, he found out the owner of the Car and compromised with them for the accident case by giving a false version both before the Police and in the Court. The Police helped him because of his relations with Senior Police Official Sh. Baljot Singh Rathore, PPS, in whose favour he gave a statement against the wife of Mr. Rathore.” (v) That at the end of the para no. 7 of the Written Statement after the word “Attitude”, the respondent wants to add the following lines :- “The petitioner and other members of his family are falsely imputing unchastity to the respondent connecting her with Shivraj Singh, her brother (religious brother/ Dharam Bhai). It is pertinent to mention her that respondent has two sisters and no brother. Similarly the C.R. No. 1131 of 2010 -8- ***** mother of the respondent did not have any brother. The mother of the respondent and mother of Shivraj Singh, both hailed from Barnala living in the same Mohalla and they were very close to each other and had virtually become sisters. The respondent however did not know about Shivraj Singh, who was brought in the family by the petitioner himself. Lateron the respondent came to know about Shivraj Singh and then all the three sisters including respondent tied Rakhi (Rakhri) to Shivraj Singh and ever since then he had been protecting the respondent like a brother against every onslaught of the petitioner or his family. The petitioner wanted the respondent to be helpless and surrender to his illegal demand of divorce meekly but the respondent stood against the same with the help of Shivraj Singh, her brother. The petitioner finding no other way out started defaming the respondent by connecting her with Shivraj Sigh in an illicit relationship among the members of the family and the society as well. The petitioner and his family have resorted to character assassination which amounts to inflicting extreme cruelty on the respondent.” The learned trial Court dismissed the application moved by the petitioner under Order 6 Rule 17 of the Code of Civil Procedure, in view of proviso to Order 6 Rule 17 of the Code of Civil Procedure, which bars the amendment of pleading with regard to the facts which were within the knowledge of the party applying for C.R. No. 1131 of 2010 -9- ***** amendment or could be known by due diligence. The learned counsel for the petitioner has challenged the impugned order on the ground that the amendment sought in para 16 sub clause 3 and the averments to be added to para 18 were subsequent events and were necessary for the just and proper adjudication of the case. The learned counsel for the petitioner, however, conceded that the amendment in paras 5 & 7 of the written statement were within the knowledge of the petitioner or could be known by due diligence, therefore, the learned trial Court rightly rejected this part of the amendment. The contention of the learned counsel for the petitioner, therefore, was that the amendment to be made in paras 16 & 18 of the written statement were to be considered and allowed, as filing of FIR was subsequent event and was necessary for the Court to arrive at just decision and to decide the dispute between the parties effectively. The learned counsel for the respondent controverted the contention raised by the learned counsel for the petitioner and contended that though the registration of FIR was a subsequent event but the facts narrated in the FIR were in fact known to the petitioner at the time of filing of the written statement, therefore, the learned trial Court was justified in dismissing the application. It was the case of the respondent that in spite of having lodged an FIR, the petitioner moved application for amendment only C.R. No. 1131 of 2010 -10- ***** after the parties concluded their evidence, therefore, the amendment suffered from delay and latches. On consideration, I find force in the contentions raised by the learned counsel for the petitioner. The order passed by the learned Addl. District Judge does not give any reasons for declining the amendment in paras 16 & 18 of the written statement, as registration of FIR was a subsequent event, and the averments made were necessary for the just and proper adjudication of the case, as in order to determine as to whether respondent / husband was entitled to divorce on the ground of cruelty, the registration of FIR is a relevant fact. The contention of the learned counsel for the petitioner, that the application for amendment suffers from delay and latches, therefore, can not be sustained, is against well settled law that while allowing amendment, the merit of the amendment is not to be gone into, nor the delay in seeking amendment can be a ground to reject the application for amendment. Law for amendment of written statement is very liberal and the defendant can take even contradictory pleas. The order passed by the learned Addl. District Judge, therefore, can not be sustained, as it was wrongly held that the facts to be impleaded were hit by proviso to Order 6 Rule 17 of the Code of Civil Procedure. For the reasons stated, this revision is partly allowed, the impugned order is set aside, while declining the C.R. No. 1131 of 2010 -11- ***** amendment in para 5 & 7 of the written statement. The petitioner is allowed to amend paragraphs 16 & 18 of the written statement as prayed for. The revision partly allowed. No costs. 01.09.2010 (VINOD K. SHARMA) 'sp' JUDGE