SCA/2100/2007 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2100 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= SHILPABEN @ GEETABEN W/O RUCHIR J. DESAI - Petitioner(s) Versus RUCHIR JAYANTIBHAI DESAI - Respondent(s) ========================================================= Appearance : MR TUSHAR J BAXI for Petitioner(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, MR GI DESAI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 12/07/2007 ORAL JUDGMENT 1. Rule. Mr.Girish I.Desai, learned advocate waives service of Rule on behalf of the respondent. SCA/2100/2007 2 JUDGMENT With the consent of parties, this matter is taken up for final disposal. 2. Shilpaben @ Geetaben, the petitioner herein has filed this petition under Article 227 of the Constitution of India, with a prayer that this Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dated 30th December, 2006, passed by the learned Principal Senior Civil Judge, Surat in Hindu Marriage Petition No. 25 of 2004. By the impugned order, the learned Judge has allowed the application for amendment filed in the Hindu Marriage Petition filed by the respondent husband in this behalf. 3. This petition was filed on 19th January, 2007, and this Court issued notice on 22nd January, 2007, pursuant to which, the other side (husband) appeared and filed affidavit-in-reply. The petitioner also filed affidavit-in-rejoinder in this behalf. 4. The facts giving rise to filing of the present petition are as under: SCA/2100/2007 3 JUDGMENT 4.1 The marriage between the petitioner wife and the respondent husband was solemnised on 16th May, 2000, as per Hindu custom at Gandevi at Surat. After the marriage, they were living happily. The petitioner has passed B.Ed. with First Class, M.A. with English and was serving as a teacher in the Secondary School prior to her marriage. The respondent husband is a Chartered Accountant. 4.2 It is the case of the parties that initially there was cordial relation between husband and wife, however, thereafter difference and dispute arose between the husband and wife, and according to wife, due to misbehaviour of stepmother of husband, some difference and dispute arose and both husband and wife decided to live separately after three months of their marriage. According to husband, the wife was of quarreling nature and was not prepared to live with the parents. She was not co-operating with her mother-in-law. According to husband, the wife had some mental problem and she was not properly behaving with in laws. According to SCA/2100/2007 4 JUDGMENT husband, from May 2003, the situation worsened and ultimately the husband had addressed a notice on 27.9.2004 as per Hindu Provisions Act for obtaining divorce. According to husband, the wife has not properly replied on 2.10.2004 the said notice to the husband in this behalf. 4.2A As per husband averments, during those periods, the wife was examined by Dr.Mukul Choksi at Surat as well as Dr.Jayesh at Navsari also in connection with the mental health of the wife. 4.2B It is the case of the husband that thereafter husband was constrained to file application for divorce on 8.10.2004 wherein allegations which have been set out earlier has been set out in the said application. According to husband, the wife had not given proper qualification at the time of marriage. She has also not disclosed some physical as well as mental illness at the time of marriage and that is how she has been examined by Dr.Mukul Choksi as stated earlier. From May 2003 there was dispute between husband and wife arose and thereafter the SCA/2100/2007 5 JUDGMENT husband has made several attempts to call the wife but the wife did not come back to the matrimonial home. According to husband, the wife has played fraud with him and not properly set out the correct facts at the time of marriage. 4.2C In the said matter the husband prayed that the marriage may be dissolved which took place between husband and wife on 16.5.2003 and the Court may pass a decree of divorce. Against that the wife replied the said petition denying all facts in this behalf. 4.2D Meanwhile the wife filed an application being application No.22/04 for claiming maintenance against the husband. It appears that in the said proceedings the wife was examined somewhere in February 2006 and husband has been examined somewhere in December 2006. 4.2E Thereafter the husband filed application under Order 6 Rule 17 of the CPC on 11.5.2006 at Exh.31. In the said application he has stated that SCA/2100/2007 6 JUDGMENT he has already filed application for divorce under Sec.5(ii)(b) and Sec.13(1)(iii) of the Hindu Marriage Act. According to said amendment application, the husband stated that while entering into the marriage, the wife had not given the correct details about the mental as well as physical illness and therefore the wife had committed fraud and cheating with the husband. Initially he did not divulge that fact that she is not mentally well, though she was suffering from “psychopathic disorder”. However she did not states the said fact at the time of marriage, this will be the additional fact for claiming divorce in this behalf. 4.2F Against that the wife replied at Exh.33. In the said reply it was stated that all these grounds was available to the husband and it could not have been included by the husband at the time of marriage. It was further stated that, if amendment as prayed for is granted, it will change the nature of the suit, and it will also change the cause of action and basic structure of the suit. The said reply is filed on 10.7.2006. SCA/2100/2007 7 JUDGMENT 4.2G When the matter was placed before the trial Court, the learned Judge by his short but non- speaking order held that, if amendment is allowed, there is no changing in nature of petition. Moreover, if HMP is proceed as per CPC, so it can be allowed. Hence for the interest of justice this application is granted as prayed for subject to pay the cost to opponent Rs.300/- only. The said order was passed on 30.12.2006. Contention of Mr.T.J.Baxi, learned advocate for the petitioner-wife: 5. Mr.T.J.Baxi, learned advocate for the petitioner wife has made following submissions: 5.1 He has stated that if the amendment application Exh.31 moved by the husband-applicant in HMP Suit on the ground that husband-applicant states that he came to know as to the fraud, misrepresentation and cheating committed by the wife-opponent after the marriage had taken place. But it is material to note that he neither reveals SCA/2100/2007 8 JUDGMENT exact point of time at which time he became aware of the fraud etc., nor does he contend that the alleged fraud, misrepresentation and cheating were disclosed after the separation i.e. 01.09.2003. Whereas the husband-applicant makes express averments in para 10 of H.M.P.Suit No.25 of 2004 that he came to know about the alleged mental disorder and the wife's life fraud etc. on 31st August, 2003, for the first time. Not only that the husband has deposed on oath in the Court of Judicial Magistrate First Class of Kathor in the matter of Maintenance Application No.22 of 2004 and has admitted explicitly. That even after separation i.e. 1.9.2003 he desired to call his wife Shilpa back to live with him and to materialise that intention he attempted to telephone her. The husband did not give up still. He further admits that he made efforts to call his wife Shilpa back with him for 8-10 months after the separation. The husband in crystal clear words admits that his attempts were not for divorce but for calling her back at this home. Thus, on one hand, the husband says that he came to know the alleged fraud etc., for the first time on 31.8.2003, and on the other SCA/2100/2007 9 JUDGMENT hand, he continues to admit and say that even after separation i.e. 1.9.2003, he expressed desire to cohabitate with her till May-June 2004. The learned advocate further submitted that there is not a single statement or pleading of husband that he came to know as to the alleged psychopathic disorder, mental abnormality after separation, all these facts shows that the amendment application itself is an afterthought. There does not subsist a single circumstances which would justify the husband to move an amendment application the day on which the same has been produced. 5.2 The learned advocate further submitted that even the amendment application itself is silent as to the reasons why the same has been moved after the lapse of 30 (thirty) months. No plausible explanation has been given as to why the intended amendment portion was not incorporated in H.M.P.Suit No.25 of 2004 at the time of its institution. Thus, the husband-respondent has waved and relinquished the reliefs relating to the impugned amendment. The husband states in para 3 of his amendment SCA/2100/2007 10 JUDGMENT application that it is required to include the challenge contained in amendment in the perspective of written statement, which is not true valid, lawful, relevant and plausible ground looking to the facts of the case. Further, the husband-applicant avers in para 6 of H.M.P.Suit No.25 of 2004 that the wife never allowed him to enjoy `Shaiyasukh' whereas he admits in his deposition (in maintenance matter) that he indulged in sexual intercourse with Shilpa the way a normal husband and normal wife would conduct/behave. Thus, the husband does not have regards for truth, as he makes quite contradictory statements on oath. The learned advocate further submitted that the husband has gone to the extent of presenting himself as `divorcee' in the directory issued by `Anavail Lagna Mahiti Kendra', Dayalji Aashram, Majuragate, Surat even though no divorce has yet been taken place, which shows his malafide intention to remarry without getting divorce from Shilpaben legally, which shows the husband's intention to cheat present appellant as well as play fraud with innocent other girls as well. SCA/2100/2007 11 JUDGMENT 5.3 In the present case, the marriage was solemnised between the parties i.e. husband and wife on 16.5.2003. The spouses lived together till 31.8.2003. The wife was forced to leave matrimonial home on 1.9.2003. As per the say of the husband, he came to know the alleged fraud as to alleged mental disorder and psychopathic disorder between the period from 16.5.2003 to 31.9.2003, he came to know as to the alleged false birth date of the wife on 9.10.2003. As per the provisions of Section 12(1) (c) and Section 12(2) of the Act which provides for voidable marriages, Hindu Marriage Petition is to be presented within one year of the date of knowledge as to fraud or misrepresentation as the case may be. Here in the instant case, amendment application has been moved on 11.5.2006. Thus, the said application is moved after the lapse of as many as 30 months. Hence, the fresh HMP i.e. the amended relief would be barred by limitation on the date of the application. Even the original HMP is barred by limitation. 5.4 On behalf of petitioner-wife, the learned advocate has relied upon the following authorities SCA/2100/2007 12 JUDGMENT in support of the aforesaid decision in support of his submissions: 5.4A (1) L.J.Leach & Company Limited vs. Jardine Skinner and Company reported in AIR 1957 SC 357 particularly para 16 which reads as under: “It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.” 5.4B (2) T.N.Alloy Foundry Co. Ltd. vs. T.N.Electricity Board and others reported in 2004(2) CCC 35 (SC) : 2004(3) SCC 392 wherein in para 2 the aforesaid judgment of L.J.Leach & Com. Ltd., (supra) has been considered. SCA/2100/2007 13 JUDGMENT 5.4C (3) Union of India vs. Pramod Gupta (Dead) by Lrs. And others reported in (2005) 12 SCC 1 para 135 on page 53 which reads as under: “Delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. The High Court neither assigned sufficient or cogent reasons nor applied its mind as regards the relevant factors while allowing the said application for amendment. It has also not been taken into consideration that the application for amendment of pleadings might not have been maintainable in view of statutory interdict contained in sub-section (2) of Section 25 of the Act, if the same was applicable.” 6. On the other hand, Mr.G.I.Desai, learned advocate appearing for the respondent-husband has made following submissions: SCA/2100/2007 14 JUDGMENT 6.1 Before making legal submission, he has invited my attention to Order 6 Rule 17 of CPC which is existing as today which reads as follows: “Rule 17. Amendment of pleadings – 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.” 6.2 The learned advocate for the husband has stated that in the present matter though original SCA/2100/2007 15 JUDGMENT application for divorce was filed on 8.10.2004, the trial is yet effectively not commenced and therefore the provisions of Order 6 Rule 17 of the Code of Civil Procedure, amendment application can be allowed at any stage prior to commencement of trial and therefore proviso to Order 6 Rule 17 of the CPC will not be applicable in this behalf. He has further submitted that the trial of the suit begins when the issues are framed and the case is set down for recording of evidence. Hence, when affidavit in examination-in-chief have been filed, it would amount to commencement of trial. In the present case no issues have been framed, no cases have been set down for recording the evidence, no affidavit in examination chief have been filed, therefore no trial has been commenced. 6.3 In view of the same, he submitted that there is no violation of provision of Order 6 Rule 17 particularly proviso to the same while passing the order for allowing the amendment of pleading by the learned Principal Civil Judge (S.D.), Surat. The learned advocate for the respondent stated that this SCA/2100/2007 16 JUDGMENT Court may confirm the order of the learned trial Judge and dismiss the writ petition in this behalf. 6.4 He has relied upon Order 6 Rule 17 of CPC and stated that Rule 17 consists of two parts – first part gives discretion to Court to allow amendment of pleading and second part is imperative and enjoins Court to allow all amendments which are necessary for determining real question of controversy between parties. 6.4A The learned advocate further submitted that the real controversy between the parties is whether the wife suffers from mental disorder or not. The learned advocate submitted that the wife herself mention in her cross-examination in the application of maintenance under Code of Criminal Procedure, Sec.125 that she was examined by Dr.Mukul Chokshi, who is a Doctor of mental disease, she is taking medicine as prescribed by him. Hence, this is a prima facie case as per her own version. Her cross- examination was annexed with the written statement. It was further submitted that, when real question is SCA/2100/2007 17 JUDGMENT required to be determined, the amendment of pleadings should be allowed. 6.5 He has further submitted that, while considering the amendment of pleading, the Court should be extremely liberal in granting prayer for amendment, unless serious injuries or irreparable loss is caused to the other side. In the present case, there is no serious injury or prejudice or irreparable loss cause to the petitioner wife, as the petitioner will get a copy of amendment of pleading. She has full opportunity to contest the amended petition by filing reply and she also have an opportunity to lead the evidence in the same manner the present respondent has to prove his pleading by leading the evidence at the time of trial. 6.6 In support of the aforesaid contention, the learned advocate has relied upon the following judgments: SCA/2100/2007 18 JUDGMENT 6.6A Ragu Thilak D.John vs. S.Rayappan and others reported in AIR 2001 SC 699 particularly para 6 which reads as under: “If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.” 6.6B Pankaja and another vs. Yellappa (D) by L.Rs., and others reported in AIR 2004 SC 4102 where the Hon'ble Supreme Court has held that the SCA/2100/2007 19 JUDGMENT amendment of pleading sought after substantial delay can be allowed, amendment sought after relief is barred by limitation can even be allowed in appropriate cases if the subserves cause of justice and avoids further litigation. He has relied upon para 12 and 14 of the aforesaid judgment which reads as under: 6.6B/1 Para12 “So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application.” 6.6B/2 Para 14 “The law in this regard is also quite SCA/2100/2007 20 JUDGMENT clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” 6.6C He has also relied upon the judgment of Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and others vs. K.K.Modi and others reported in 2006(40) AIC 36 (SC) : AIR 2006 SC 1647. It was held that the object of the rule is that Courts SCA/2100/2007 21 JUDGMENT should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 6.6D State Bank of Hyderabad vs. Town Municipal Council reported in (2007) 1 SCC 765 particularly para 12 which reads as under: “This aspect of the matter has been considered by this Court in L.J.Leach and Co.Ltd. vs. Jardine Skinner and Co. in the following terms (AIR p.362, para 16). “16. It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be SCA/2100/2007 22 JUDGMENT ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.” 7. Petitioner's rejoinder: 7.1 The learned advocate for the petitioner has submitted that the judgment of the Hon'ble Apex Court in the case of Rajeshkumar Aggarwal and ors. v. K.K.Modi & ors., reported in 2006(40) AIC 36 (SC) : AIR 2006 SC 1647 is quite distinguishable on the ground that it has been held that cause of action had arisen during the pendency of the suit, so it was permissible to file an independent suit and in this perspective the relief which could be prayed for in the new suit was permitted to be incorporated in the pending suit, whereas here, in the instant case, no cause of action arose during the pendency of the suit. Hence, the decision is quite distinguish on the facts of the case. 7.2 The learned advocate for the wife has also submitted that the decision cited by learned advocate Mr.Desai on behalf of the respondent in SCA/2100/2007 23 JUDGMENT the case of Baldev Singh v. Manohar Singh, reported in 2006(45) AIC 82 (SC) : (2006) 6 SCC 498, wherein in para No.15, the Hon'ble Apex Court has held that by upholding settled principle that 'an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. 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 likely to operate with same rigour in the former than in the latter case'. Therefore, he has submitted that, in the instant case, the impugned amendment is of petition, i.e. plaint and not that of written statement, hence, the said ruling is quite distinguishable on the facts of the case. 7.3 The learned advocate for the respondent has relied upon the decision in the case of B.N.Kamalanabha Reddy v. Muni Venkatappa and ors., reported in 2006(39) AIC 765 (Karn.) particularly para No.7 of the said judgment. SCA/2100/2007 24 JUDGMENT 7.4 The learned advocate for the wife has further stated that there is no valid, reasonable or sufficient grounds shown by the husband for tendering Exh.95 at such a belated stage. It was further submitted that the amendment cannot be claimed as a matter of right that each and every amendment application does not invariably deserve to be allowed merely adhering to the concept “extremely liberal approach”. Here the instant case is not a money suit, is not a suit involving any property wherein there is remedy of compensation and costs in terms of money. Here in the instant case involves matrimonial matter the allowing of amendment causes to the wife injury which could not be compensated in costs and the amendment deserves to be