IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17.12.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Application No.5268 of 2008 in O.M.S.No.50 of 1998 C.Rajamani Applicant vs. C.Rathna Bai Respondent For Applicant : Mr.A.R.Nixon For Respondent : Mr.V.Suryanarayana Reddy ORDER
The applicant-husband filed a suit in O.M.S.No.50 of 1998 seeking dissolution of marriage between him and the respondent-wife on the ground of desertion and cruelty. The applicant-husband files this application to permit the applicant to substitute the prayer as one for declaration that the marriage solemnized on 22.1.1981 is null and void as the same was vitiated by fraud.
The contention of the applicant:-
2. After the marriage, the respondent never had menstrual cycle in a normal way. The applicant took the respondent to many hospitals and gave treatment to regulate her menstrual cycle. Even after removal of a cist in her uterus, she never had menstrual cycle. The applicant found that the respondent had not attained puberty before marriage and therefore, there was no formation of egg. The said fact was suppressed by the respondent and her parents and thereby they committed fraud on the applicant. During the course of cross-examination, the respondent deposed that she possessed medical certificate to show that she attained puberty and had menstrual cycle and she also got a certificate to demonstrate that she would be able to deliver a child. No certificate was produced before the court inspite of the letter given by the counsel for the applicant to produce the document. Therefore, the applicant files this application seeking amendment of the Original Matrimonial Suit as one for declaration that the marriage between the applicant and the respondent is null and void in the place of the prayer for divorce on the ground of cruelty and desertion.
Counter version of the respondent:-
3. The Original Matrimonial Suit was filed in the year 1998 seeking divorce on the ground of desertion and cruelty having admitted the marriage between the applicant and the respondent. The applicant failed to contest the suit. Therefore, the suit was dismissed for default on 4.4.2003. The applicant, thereafter, filed an application to restore the suit and the same was restored on file during the last week of April 2008. The trial commenced and documents were also marked. The evidence of PW1 was closed. The chief examination of the respondent was also over. She was also partly cross-examined by the applicant. When the suit was posted for continuation of cross-examination, the applicant has filed the present application seeking amendment of the suit. The applicant is now trying to introduce a new cause of action. Therefore, the application is not at all maintainable. In order to harass the respondent, with an ulterior motive and to drag on the case without paying interim maintenance, the present application has been filed. The allegation that the respondent did not attain puberty before marriage and that she suppressed the same is totally false.
4. Learned counsel appearing for the applicant would submit that during the course of evidence, the respondent has assertively deposed that she possesses documents to establish that she attained puberty and her menstrual cycle was regular. But, she failed to produce documents to establish it. The applicant has come to know only at that stage that the respondent had not attained puberty before marriage and her sterile profile was fraudulently suppressed before marriage which was solemnized between the applicant and the respondent. He would submit that the Supreme Court and various High Courts have taken a view that the prayer for amendment of the pleadings shall be liberally granted. It is his further submission that the new amendment introduced to Order VI Rule 17 does not apply to the present case as the pleadings had been filed long prior to 1.7.2002, the date on which the new amendment of the Code of Civil Procedure came into force.
5. Learned counsel appearing for the respondent would vehemently contend that the prayer for substitution of the very relief sought for originally would materially change not only the foundation of the case laid by the applicant but also the cause of action alleged in the plaint. Nothing has been stated in the application as to when the applicant came to know that the respondent did not attain puberty. The application has been filed at the crucial stage of evidence only to further drag on the matter and to harass the respondent, he would contend.
6. The present suit has been laid wayback in the year 1998. Order VI Rule 17 of the Code of Civil Procedure was amended by the Code of Civil Procedure (Amendment) Act, 2002 which came into force on 1.7.2002. As per the amended provision, the court may, at any stage of the proceedings, allow either party to alter or amend his pleadings for the purpose of determining the real questions in controversy between the parties. But, no application for amendment shall be allowed after the trial has commenced unless the court comes to the decision that the party who seeks amendment could not make an application inspite of due diligence before the commencement of trial.
7. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 would read that the provision in Rule 17 of Order VI inserted by the aforesaid amendment would not apply to pleadings filed before coming into operation of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of the Code of Civil Procedure (Amendment) Act, 2002. The Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002 came into force with effect from 1.7.2002. In view of the above, the new amendment found in Rule 17 of Order VI will not apply to the plaint pleadings filed by the applicant wayback in the year 1998 itself. The amended provision under Order VI Rule 17 will apply only to the pleadings filed on or after 1.7.2002. (vide RETHINAM ALIAS ANNA SAMUTHIRAM AMMAL v. SYED ABDUL RAHIM (2005 (3) CTC 321).
8. As per the old Rule 17 of Order VI, the court may, at any stage of the proceedings, allow either of the parties to alter or amend his pleadings. All such amendments shall be made for the purpose of determining the real questions in controversy between the parties.
9. The Original Matrimonial Suit was filed by the applicant for divorce on the ground of desertion and cruelty under section 10 and 22 of the Indian Divorce Act, 1869. Now, the applicant prays that the prayer for dissolution of marriage on the ground of desertion and cruelty may be substituted with the prayer for declaration of the marriage of the applicant and the respondent as null and void under section 18 of the Indian Divorce Act.
10. The status of puberty and the profile of menstrual cycle of the respondent were not even vaguely referred to by the applicant in the Original Matrimonial Suit. The real controversy in the Original Matrimonial Suit revolves around the alleged cruelty and desertion of the respondent. The real controversy between the parties should have been raised in the Original Matrimonial Suit between the parties. A party cannot raise a totally new controversy during the course of trial of the case and set up a plea that the real controversy has arisen between the parties and therefore, the amendment will have to be introduced in the pleadings. There should be a foundation for the real controversy between the parties in the plaint itself. Nothing has been whispered about the non-attaining of puberty and the stoppage of menstrual cycle of the respondent in the Original Matrimonial Suit. The suit itself has been filed wayback in the year 1998. It was dismissed for default on 4.4.2003 and the same was restored to file only in 2008. Now wisdom had dawned on him to radically change the pleadings and come out with a new prayer in the place of the subsisting prayer found in the suit.
11. The amendment, as per the old provision, can be made for the purpose of determining the real question in controversy between the parties or for correcting any defect or error in the proceedings initiated by the parties. But, it is to be noted that the amendment cannot be permitted if it goes to the root of the matter and alter or substitute a new cause of action. Further, the amendment shall not work hardship to the respondent.
12. The substitution of the prayer with declaration of marriage as null and void completely shatters the foundation laid by the applicant and radically changes the profile of the case and the original cause of action. Totally a new case is set up by the applicant now giving up the original cause pleaded before the court. Such an amendment sought for by the applicant, if allowed, will definitely work hardship to the respondent, who waited for ten long years to terminate the trial of the case. The respondent cannot be forced at this distance of time to undergo a hardship that would fall on her on account of a totally new case set up by the applicant.
13. In USHA DEVI v. RIJWAN AHAMD & OTHERS (2008 2 LW 881) it was held that the merit of the amendment is hardly a relevant consideration. It is open to the defendants to raise their objection with regard to the amended plaint by making any corresponding amendment in the written statement. That was a case where due to inadvertence, the suit land was wrongly described in the schedule of property found in the plaint. The plaintiff sought for correction of such a mistake by way of amendment. The Supreme Court resisted the submission made by the counsel appearing on the side of the respondents that the amendment would render the suit non-maintainable with the proposition that the merit of the amendment matters hardly while considering the prayer for amendment sought for by the parties.
14. This court in JOTHI v. KUMARAVEL (2007 (2) CTC 525) has observed that at the stage of deciding the amendment application, the court shall not traverse beyond the scope of the amendment and decide the merit of the amendment sought for.
15. In the instant case, the court has not gone into the merit of the amendment sought for in the amendment application. As the frame of the suit has been radically changed and the cause of action is newly introduced by way of such an amendment, the court feels that the amendment sought for by the applicant cannot be entertained. Therefore, the aforesaid decisions do not apply to the facts and circumstances of this case.
16. It has been held in RAJESH KUMAR AGGARWAL v. K.K. MODI ((2006) 4 SCC 385) that the courts should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided they do not cause any injustice or prejudice to the other side. The court is bound to decide whether an amendment is necessary to decide the real dispute between the parties. The court should not go into the correctness or falsity of the amendment sought for. It shall not also record a finding on the merits of the amendment at the stage of considering the prayer for amendment. Even the subsequent events in order to shorten the litigation and also to preserve and safeguard the rights of both the parties can be taken into account by the court in order to subserve the ends of justice.
17. As already noted, there was no controversy between the parties as per the original pleadings as to the status of puberty and the profile of menstrual cycle of the respondent. The applicant cannot invent a new cause of action and seek to introduce a prayer based thereupon shaking the very foundation of the pleadings and the cause of action. Further, as already held, this court has not embarked upon deciding the merit of the amendment sought for by the applicant.
18. Amendments can be permitted even in a case where there has been substantial delay. Allowing amendment is to minimize the litigation. Even in a case where a relief is barred because of limitation, the court can exercise its discretion on the special facts and circumstances of a case and permit an amendment in order to reach substantial justice and avoid further litigation. In the instant case, it is not as if the applicants came to know of the alleged sterile profile of the respondent only during the course of cross-examination of the respondent. The applicant has got married about 20 years ago. The applicant has not chosen to rake up such a vital issue at the time of filing the suit seeking divorce from the respondent. Though such a delay is found to be substantial, the court does not mind it. The application seeking amendment is not dismissed on the ground that there had been substantial delay in filing the application, but, on the ground that the amendment, if allowed, will introduce a new cause of action and the frame of the suit itself will undergo a radical change. The applicant cannot be permitted to introduce a new case by way of amendment relinquishing the foundation he originally made for the plaint.
19. In view of the above facts and circumstances, the application seeking amendment stands dismissed. There is no order as to costs.
ssk.