Madhya Pradesh High Court
Smt.Sadhna Bhadoria vs Dr.Sunil Bhadoriya on 23 April, 2019
1
THE HIGH COURT OF MADHYA PRADESH
M.P. No.1960/2019
(Smt. Sadhna Bhadoria Vs. Dr. Sunil Bhadoriya)
Gwalior, dated: 23.04.2019
Shri A.V. Bharadwaj, learned senior counsel with Shri Rohit
Batham, learned counsel for the petitioner.
None for the respondent.
Allowing of two applications both under Order VI Rule 17 of CPC filed by the husband in a divorce petition instituted by husband, have impelled the wife/petitioner to approach this Court by invoking supervisory jurisdiction under Article 227 of the Constitution of India.
Learned senior counsel for petitioner is heard on the question of admission.
The principal contention of learned senior counsel for petitioner is that while allowing the amendment applications of wife, objections raised by husband in express terms to the said applications were overlooked.
It is not disputed at the bar that divorce petition was at a very initial stage where even issues had not been framed and the case was pending for filing of WS by the wife.
A bare perusal of the amendment application reveals that certain better particulars in support of pleadings contained in divorce petition were sought to be brought on record by the 2 husband and since the trial had not commenced, statutory bar in proviso to Order VI Rule 17 CPC had not come into operation and thus liberal view was taken by the family Court allowing both the applications for amendment.
Once it is admitted that trial had not commenced the allowing of amendment application on the pleading ought to be based on liberal consideration as has been held by the various pronouncements of the Apex Court including one in Gurbakhsh Singh & others Vs. Buta Singh & another, 2019(1) MPLJ 2690. Relevant paras 6,7 & 8 of the said decision are reproduced below:-
"6. In the present case the record of Civil Suit No.195 of 1968 in which ex parte decree was passed on 30.06.1969 is not traceable. In the circumstances, there could possibly be some inability in obtaining correct particulars well in time on part of the appellants. At the time when the application for amendment was preferred, only two official witnesses were examined. The nature of amendment as proposed neither changes the character and nature of the suit nor does it introduce any fresh ground. The High Court itself was conscious that the amendment would not change the nature of the suit. In the given circumstances, in our view, the amendment ought to have been allowed. In any case it could not have caused any prejudice to the defendants.
7. While allowing amendment of plaint, after amendment of 2002, this Court in circumstances similar to the present case, in Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors. (2012) 11 SCC 341 had observed: "11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment 3 being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The mainpurpose of allowing the amendment is to minimise the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel & Others v. Gattu Mahesh and Others (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd and Others (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."
8. We, therefore, allow this appeal and accept the application for amendment preferred by the appellants. The plaint shall stand amended in terms of the proposed amendment. The trial court is directed to proceed with the matter accordingly. There will be no order as costs.
In the absence of any transgression of jurisdictional limit set by law, this Court declines interference in limited supervisory jurisdiction and dismissed this petition, sans cost.
(Sheel Nagu) Judge SS SATEESH KUMAR SEN 2019.04.26 16:54:23 -07'00'