Madhya Pradesh High Court
Smt. Anjeli Sharma vs Rakesh Sharma on 2 April, 2018
THE HIGH COURT OF MADHYA PRADESH
WP-5912-2017
(SMT. ANJELI SHARMA Vs RAKESH SHARMA)
Gwalior, Dated : 02-04-2018
Shri Prakash Braru, learned counsel for the petitioner.
Shri Nirmal Sharma, learned counsel for the respondent.
Petitioner has filed this petition being aggrieved by order dated 2.8.2017, Annexure P/1, passed in Case No.640-A/2014 HMA by the sh Principal Judge, Family Court, Gwalior, whereby an application under Order 6 Rule 17 CPC has been dismissed.
e ad It is the contention of learned counsel for the petitioner that petitioner wanted to insert another ground of not acceding to the Pr request made by the husband by making an application under Section a 9 of the Hindu Marriage Act for restitution of conjugal rights on the hy ground that her husband always looks at her with suspicion and ad wanted to bring on record a fact that he had sent two empty envelopes on 29.6.17 with blank papers so to verify whether the affidavit filed by M her showing a particular address in fact gives correct address or not.
of Learned counsel for the petitioner submits that this amendment is her right and should not have been denied. He has pressed into rt service two judgments of Hon'ble Supreme Court one in the case of ou Andhra Bank vs. ABN Amro Bank N.V. and others as reported in C (2007) 6 SCC 167 wherein the Hon'ble Supreme Court has held that delay is no ground to refuse the prayer for amendment. Similarly, he h ig has placed reliance on the judgment of the Supreme Court in the case H of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others as reported in (2007) 5 SCC 602 where again it has been held that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement can be allowed as long as the amended pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It has been further held that amendments may be necessary for determining the real question in controversy between the parties. The courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one.
Learned counsel for the respondent on the other hand has drawn attention of this Court to the order-sheet, proceedings of the family Court, which reveals that evidence of the husband was closed on 21.3.17. Thereafter case was fixed for evidence of the present petitioner but time was sought on 6.4.17. Thereafter on 7.4.17 present petitioner did not appear before the Court and her counsel expressed that she is not in contact with the counsel. When Court asked then what order should be passed, he sought one opportunity. Case was sh fixed on 18.4.17 and 20.4.17 but on 18.4.17 also the present petitioner e did not appear before the court and her counsel again expressed that ad he is not in touch with her client. On 20.4.17 same expression was Pr given. Thereafter on 9.5.17 also same fact was narrated, and therefore, Court had fixed the case for final argument on 12.5.17 when the a present petitioner appeared with her counsel Shri Rajendra Sharma hy and produced her affidavit under Order 18 Rule 4 CPC and expressed ad that her affidavit be taken on record. This taking of affidavit on record M was objected to by the counsel for the opposite party on the ground that cost was not paid but then it is submitted that she will pay the cost of on the next day and then only her statement will be recorded. On 12.5.17 when case was fixed for cross-examination, then it was rt revealed that there was some casualty in the family of counsel for the ou husband, therefore, case was adjourned for 19.6.17. On 19.6.17 C applications under Order 16 Rule 6, under Order 8 Rule 1-3 CPC and h under Order 6 Rule 17 CPC were filed, out of which application under ig Order 8 Rule 1(3) CPC has already been allowed and application H under Order 6 Rule 17 CPC has been rejected. Thus, pointing out the fact that whole game of the petitioner was to delay the case which was pending since 2014, earlier she did not choose to appear on several dates and thereafter she filed her affidavit in lieu of oral evidence and then she filed application for amendment. He submits that the impugned order does not suffer from any infirmity and does not call for any interference.
In view of such facts, impugned order is to be examined. As far as law laid down in the case of Andhra Bank (supra) is concerned, the fact of the matter is that application for amendment in the written statement after allowing amendment in the suit was denied, and therefore, under such facts and circumstances, Hon'ble Supreme Court has held that an additional ground of defence was permissible in law. In the present case, the facts are different. Impugned amendment was not sought on account of any amendment in the application under Section 9 for restitution of conjugal rights. Similarly, in the case of Usha Balashaheb Swami (supra) the ratio is that amendments may be necessary for determining the real question in controversy between the parties and courts should be liberal in granting the prayer for sh amendment of pleadings unless serious injustice or irreparable loss is e caused to the other side or on the ground that the prayer for ad amendment was not a bona fide one. In the present case, this Court is Pr of the opinion that these two limbs of causing serious injustice or irreparable loss to the husband and application for amendment being a not a bona fide one, were available, and therefore, the trial Court has hy rightly dismissed the application under Order 6 Rule 17 CPC. Thus, ad the impugned order does not call for any interference. The petition M fails and is dismissed.
of (VIVEK AGARWAL) JUDGE rt ou C h ms/-
ig H Digitally signed by MADHU SOODAN PRASAD Date: 2018.04.02 18:47:15 +05'30'