Calcutta High Court (Appellete Side)
Debendra Nath Chatterjee vs Vivekananda Banerjee & Anr on 30 July, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Jyotirmay Bhattacharya C.O. No. 1814 of 2009 DEBENDRA NATH CHATTERJEE VERSUS VIVEKANANDA BANERJEE & ANR.
For the Petitioner : Mr. Hirak Mitra
Mr. Sadananda Ganguly
For the O. P. No.1 : Mr. S.P. Ray Choudhury
Mr. Debjit Mukherjee
Mr. Santanu Chatterjee
Ms. Ankita Mitra
For the O. P. No.2 : Mr. Aniruddha Chatterjee
: Mr. Syed Shafi Ahmed
Judgment On : 30th July, 2010.
This application under Article 227 of the Constitution of India is directed against an order being No. 20 dated 3rd February, 2009 passed by the learned District Judge, Hooghly in Act VII Case 13 of 2006 by which the petitioner's application for amendment of his petition under Section 10 of the Guardian and Wards Act, was rejected. The applicant is aggrieved by the said order.
Hence he has come before this Court with this application.
2
Heard Mr. Mitra, learned Senior Counsel, appearing for the petitioner, Mr. Ray Choudhury, learned Senior Counsel, appearing for the opposite party No.1 and Mr. Chatterjee, learned Advocate, appearing for the opposite party No.2. Considered the materials on record including the order impugned.
Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the fact of the instant case.
The maternal grand father filed an application under Section 10 of the Guardians and Wards Act praying for his appointment as guardian over the minor grand son, namely Avirup Banerjee, in the following circumstances:-
The marriage of the petitioner's daughter, namely, Sangita Chakraborty with Vivekananda Banerje was dissolved by a decree of divorce passed by the learned Additional District Judge, Fast Track, Second Court at Hooghly, Chinsurah on 5th March, 2005. Before dissolution of their marriage, a male child, namely, Avirup was born on 1st July, 2001 in the wedlock of the said married couple. The petitioner's daughter namely Sangita had to leave the maternal home with her minor son Avirup on 4th January, 2002 as she was meted with cruelty by her husband in the matrimonial home. At the time when the petitioner's daughter had to leave her matrimonial home, the child was aged about 6 months only. After leaving the matrimonial home the petitioner's daughter was admitted in College and completed her Graduation and Master degree course. She remained busy with her studies since 4th January, 2002 and as such the minor was brought up by the petitioner and his wife. The minor was admitted in a well-known school in the locality for his studies. The minor is being brought up in a very healthy and happy atmosphere under care, love 3 and affection of the petitioner and his wife. Since the minor is only the grand son of the petitioner, the petitioner has been spending every expenses for the wellbeing of the minor child as the mother of the child has no independent income and the father of the child never gave any support either financially or otherwise for the welfare of the child. Neither the father of the child nor any of his relatives ever inquired about the said child. Even they did not come to see him once since 4th January, 2002 i.e. since when the petitioner's daughter left her matrimonial home with the child.
It was further stated by the petitioner in his application that it was sad to the petitioner as well as the minor that the petitioner's daughter, Sangita entered into the second marriage without informing the petitioner and left for her matrimonial home by deserting the said minor. It was further stated therein that the petitioner's daughter did not keep any contact with the minor or the petitioner since the time of her second marriage. It was also stated therein that the mother of the minor applied for her appointment as guardian over the said minor son, namely Avirup before the learned District Judge, Hooghly at Chinsurah but ultimately she abandoned her claim.
Under such circumstances the maternal grand father being the petitioner herein filed the said application under Section 10 of the Guardians and Wards Act for his appointment as guardian over the said minor as neither his father nor his mother was careful and/or conscious about their minor child and/or his welfare.
The father of the minor child is contesting the said proceeding by filing objection denying the material allegation therein. A counter claim was also made in the said written statement praying for guardianship over the minor.4
Subsequently the maternal grand father filed an application for amendment of his application under Section 10 of the said Act for introducing that the mother of the minor has completed Master degree in Political Science and is preparing herself for appearing in School Service Commission Examination. As such she has to spend most of the time in the house of the petitioner and thus the minor son also gets the care and company of the mother.
Petitioner's prayer for such amendment was allowed on consent by the learned Trial Judge.
Subsequently when the said proceeding was fixed for peremptory hearing, another application for amendment of the said petition under Section 10 of the Guardians and Wards Act, was filed by the maternal grand-father, not only for introducing certain subsequent events but also for introducing some past events which are not only inconsistent and contradictory to the original pleading of the petitioner but also are mutually destructive to the case made out by him in his original application. Even such inconsistent pleas were sought to be inserted in his said petition by deleting his earlier pleading in paragraph 6 therein wherein he made some admission regarding her daughter's second marriage and her carelessness and neglectful attitude towards her six month old baby causing grave concern in the minds of the grandfather.
By the proposed amendment the petitioner wanted to delete his statement made in paragraph 6 of the said application wherein he stated that "it was sad to this petitioner as well to the minor that the daughter of the petitioner Sangita has entered into second marriage without informing the petitioner and she left for her maternal home by deserting the minor." He also proposed to delete his statement wherein he stated that "since after the second marriage, the mother 5 does not keep contact with the minor and the petitioner and even she was not interested to proceed with her application which she filed for appointing her as a guardian over the said minor."
The aforesaid part of his pleading was sought to be replaced by the petitioner with the following lines:
"That Sangita, the daughter of the petitioner with the consent of her patents entered into second marriage with Sri Shiladitya Chakraborty on 15th February, 2006 and since her marriage she is keeping touch with her child Avirup and taking proper care for the welfare of the child."
This part of the proposed amendment, in my view, is not only inconsistent and/or contradictory to his pleading made out in paragraph No.6 of his original application but also the proposed amendment is mutually destructive to the pleading originally made by him in paragraph no.6 of the said application. Such mutually destructive pleas cannot be allowed to be introduced by way of amendment.
That apart if this amendment is allowed, the petitioner will be permitted to withdraw his admission from his original pleading wherein he admitted that his daughter married for second time without his consent and left for her matrimonial home by deserting her child and since then she does not keep any contact with the minor child of the petitioner and even she showed her disinterest in proceeding with her application which she filed for her appointment as guardian over the said minor child. In fact, the pleading which was so made by the petitioner in paragraph no. 6 of the original application was the foundation of his application for guardianship and the petitioner 6 claimed in his application that he felt the necessity for filing such application as neither the father of the child nor the mother of the child was careful and/or conscious about the child and his welfare. The petitioner also expressed his grave concern as the mother of the child deserted her six month old child and left for her matrimonial home to stay there with her second husband. If this part of the admission is allowed to be withdrawn and the proposed amendment which is totally inconsistent with such admission is allowed to be introduced, then the very foundation and/or basis of the original pleading will be altered and the different front which is inconsistent with the earlier stand, will be introduced by giving a new colour to this litigation.
As such this Court holds that the learned Trial Judge was justified in rejecting this part of the proposed amendment of the petitioner.
The petitioner's prayer for amendment which is indicated in serial No.11 of the schedule of amendment, in my considered view, cannot be rejected as the petitioner, in fact, wants to introduce certain subsequent events in that portion of the proposed amendment. The petitioner, in fact, wanted to introduce that the petitioner's only daughter Sangita comes to her father's house regularly because her father-in-law's house is situated at Bhadreswar, P.S. Bhadreswar, Dist. Hooghly and she and her husband Siladitya Chakraborty maintain good relation with the petitioner and his wife. In this part of the proposal amendment, the petitioner wanted to introduce subsequent restoration of cordial relationship with his daughter and her second husband, without reference to his grandson.
In my view, this part of the proposed amendment which is a subsequent event cannot be refused as such subsequent evens may have some impact on the ultimate decision in the said 7 proceeding. As such, the petitioner is permitted to amend his pleading in paragraph no.5 of the said petition under Section 10 of the Guardians and Wards Act in the manner as indicated in serial No. II of the schedule of amendment.
The petitioner's prayer for amendment is thus allowed in part. The petitioner is thus directed to carry out such amendment in his pleading within two weeks from date.
Petitioner is directed to serve a copy of the amended petition upon the learned Advocate on Record of the opposite parties within two weeks from date. Leave is granted to the opposite parties to file additional written objection against the amended pleadings of the petitioner within two weeks from the date of service of the copy of the amended petition upon the opposite parties.
The learned Trial Judge is also requested to expedite the disposal of the said proceeding as far as possible.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.)