Patna High Court - Orders
Jagdish Prasad Chouhan vs Bhuneshwar Chouhan & Anr on 2 September, 2008
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.2081 of 2007
JAGDISH PRASAD CHOUHAN
Versus
BHUNESHWAR CHOUHAN & ANR
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2 2.9.2008Heard Counsel for the petitioner.
In the opinion of this Court, the impugned order seems to be prima facie unsustainable, In this regard the statement contained in paragraph no. 14 of the plaint in this regard was to be perused by the Court below to find out the relevance and correctness of the proposed amendment made by way of paragraph no.15
(a). Paragraph No. 14 of the plaint reads as follows:-
"14. That it is not out of place to mention here that after the marriage, the O.P. gave birth of a matured male child before the period of maturity though she has not kept any matrimonial and conjugal relation with the petitioner. From the fact, it is apparent that the petitioner is not the father of the above male child and the O.P. was carrying pregnancy at the time of her marriage with some other person, but, the parents of the O.P. did not disclose the above truth with the petitioner or his parents so the marriage which has been performed between the petitioner and the O.P. is a voidable marriage under the law. "
Paragraph no.15(a) of the proposed amendment however reads as follows:-
"15(a) That the O.P. is living in adultery with her maternal uncle (Mousa) Jagdish Pd. Chouhan prior to her marriage with the petitioner and the 2 petitioner has seen the O.P. and heer maternal uncle Jagdish Pd. Chouhan dwelling together as husband-wife after his marriage."
From a comparative and simultaneous reading of the aforesaid two paragraphs, it would thus become clear that whereas the case of the husband, opposite party in the original plaint was that the wife was living in adultery but he was not aware as to with whom she had such relationship but an exactly opposite case has been now sought to be set out by introducing amendment that the wife was living in adultery with her own maternal uncle (Mausa) whom he had already seen on many occasions dwelling together as husband and wife before this marriage. It is plain and simple that this inconsistent plea cannot be carried together by the plaintiff, and therefore, such amendment was not permissible.
The order allowing amendment seems to be also bad because it is not by way of amendment that a party can be added. Impleadment of party under Code of Civil Procedure has to be made under the provisions of Order I, Rule 10(2) and that having been not done, this Court normally could have set aside the aforesaid amendment but then as the amendment is in two parts namely adding party as also adding paragraph no. 15(a), the 3 interest of justice would require that opposite parties should be given an opportunity to defend the impugned order.
In that view of the matter, this application will be heard.
Issue notices to the opposite parties both under ordinary process and registered cover requisites etc. for which must be filed within one week from today failing which this application shall stand rejected without further reference to a Bench. The notice under ordinary process shall be served through the Court below, which after getting it served on the Counsel for the opposite parties appearing in the Court below would submit its report within a period of four weeks.
Pending final disposal, further proceedings in the Court below shall remain stayed.
List this case under the heading "To be Mentioned" for fixing an early date of hearing after opposite parties appear.
Rsh (Mihir Kumar Jha, J.)