JUDGMENT
R.C. Lahoti, J.
(1) A belated attempt at beating a retreat from the territorial jurisdiction of the Court has been foiled by the learned trial Judge. What is judicially not-so-welcome a plea is sought to be re-raised by the dauntless defendant in the revisional jurisdiction of High Court. The Trial Court has rejected the defendant’s application seeking an amendment under Order 6 Rule 17 of the Civil Procedure Code in her written statement proposing to introduce an objection to the territorial jurisdiction of the Trial Court.
(2) A backdrop of events in brief. The defendant-petitioner is an air hostess having fallen in love with the plaintiff-respondent leading to a marriage solemnised on 23.3.90 at Bombay. The couple was blessed with a daughter on 5.1.92. Unfortunately the marriage had a happy spell of merely 3 years whereafter it has broken down. The husband has filed a petition for divorce alleging cruelty and desertion on the part of the wife. The plaint was presented on 28th June, 1993. As is usual in such proceedings, the first thing which the wife-petitioner did on service of summons was to move an application seeking interim maintenance for the child. The application was filed on 15.10.93. Obviously the wife having a nice job of an air hostess for herself could not have claimed and did not claim any maintenance for herself. Simultaneously proceedings for settlement in Court also went on. On 23.8.94, the application seeking ad-interim maintenance for the child was disposed of by the Court directing the respondent-husband to pay a sum of Rs. 1,000.00 per month with effect from the date of the application to the wife for the child.
(3) On 12.9.94 the wife filed the written statement. No objection is taken therein to the competence of the Court at Delhi to try the suit by reference to its territorial jurisdiction. On 4.1.96, the wife filed an application under Order 6 Rule 17 of the Cpc whereby she sought for present paras 6 and 11 of the written statement being deleted and instead the following paragraphs being substituted : “Para 11 is wrong and denied. It is wrong that the parties last resided together at 13-B/4, Sant Gadge Marg, North Extension Area, New Delhi-110060 and within the local limits of ordinary original jurisdiction of this Hon’ble Court. Paradoxically enough, the petitioner has not stated when and on what occasion the parties last resided together in the said house which he has intentionally and deliberately tried to create jurisdiction of this Hon’ble Court when there . exists none. It may be mentioned that the parties last resided together at Bombay and in upto May, 92 which was chosen to be the matrimonial home of the parties and thus only Bombay Courts have got the jurisdiction to entertain and try the petition. It goes without saying that no matrimonial home whatsoever had been set up at Delhi and the aforesaid house is simply a parental home of the petitioner and mere casual and flying visit of the respondent on few occasions cannot be said to be stay in the matrimonial home so as to constitute last residence of the parties together.” “PARA6 is wrong and denied. It is wrong that any acts of cruelty had been committed by the respondent. Even otherwise, each and every act of alleged cruelty stands condoned side by side and even the last act of alleged cruelty stands condoned and thus the petition is devoid of any cause of action. As a matter of fact the own letters of the petitioner especially during the year 1992- 93 do not show even a gentle whisper of resentment much less of any cruelty and rather shows the kindling of the love and affection throughout upto the last letter dated 6.4.1993 coupled with the fact the parties had also gone to Frankfurt in September/October, 1992 and the petitioner had been also sending the Wedding Anniversary cards right upto 23.3.1993 and further because the parties shared togetheres during Holi festival in March, 1993. Even otherwise the alleged acts are normal wear and tear of married life which do not constitute any cruelty which otherwise stands condoned.”
(4) The prayer for amendment was vehemently opposed on behalf of the plaintiff-husband. The learned Trial Court has rejected the prayer.
(5) Having heard the learned Counsel for the parties, I am satisfied that the rejection of the prayer for amendment as ordered by the learned trial Judge cannot be found fault with and the impugned order has to be sustained. This I say for three reasons: firstly, the application is highly belated; secondly, it would cause injustice to the plaintiff and place him in such a position as cannot be compensated by costs; and thirdly, the defendant by her conduct in the suit has disentitled herself from seeking indulgence of the Court.
(6) Out of the several averments made in the plaint a few are material and relevant for the purpose of the present revision which I proceed to refer, and if necessary, extract and reproduce hereunder.
6.1.Vide para 5 (iii) it is alleged that the wife having finally decided to shift from Bombay to live with the petitioner (husband) at Delhi joined the petitioner at his house at Delhi alongwith their daughter and started residing with the petitioner in the middle of December, 1992. However, she again left the petitioner on 10.1.93 taking away the daughter with her.
6.2.Vide para 5(iv) it is alleged that the wife accompanied by the child came to the petitioner’s house at Delhi on or about 5.3.93 and started residing with him. They all celebrated Holi together. However, on 20.3.93, the wife alongwith the daughter again left Delhi for Bombay.
6.3.Vide paras 6, 11 and 12 of the plaint, it is averred : “6. That the petitioner has not in any manner condoned the cruelty.
11. That the petitioner and the respondent last resided together at 13-8/4, Sant Gadge Marg, Northern Extension Area, New Delhi-110080 within the local limits of the ordinary original jurisdiction of this Hon’ble Court. 12. That the petitioner submits that this Hon’ble Court has jurisdiction to entertain and try this petition.”
(7) In written statement paragraphs 5(iii) and (iv) the wife admits having resided with the petitioner at Delhi.
7.1.To quote, vide sub-para (iii) she states -“it is admitted that the respondent did come to live with the petitioner in the middle of December, 1992 after taking some off-duty vacation for the happiness of the minor girl Sanya.”
7.2.Vide sub-para (iv) she states – “in the month of March, 1993 the respondent did come over to Delhi on a vacation to live with a hope that things would change for the better. ” She then complains of having been ill treated by the husband and the mother-in-law”. She again states – “the respondent submits that she tolerated such ill treatment being meted out to her for some days and then left the matrimonial home to rejoin her duties to Air India.”
7.3.Vide paragraphs 6, 11 and 12 she states : “(6) In reply to para 6 it is stated that it being a legal submission needs no reply. (11) Para 11 needs no reply. (12) Para 12 needs no reply.”
(8) The above quoted pleadings of the parties clearly go to show the wife- defendant having submitted to the jurisdiction of the Court at Delhi. She has in so many words admitted the parties having resided together – in the petitioner’s home at Delhi in December, 1992 to January, 1993 and in March, 1993, The plaintiff’s clear rut averment of the parties having last resided together at New Delhi within the local limits of ordinary original jurisdiction of the Court at Delhi and the averment of this Court having jurisdiction to entertain and try the petition have not been denied at all.
(9) Apart from the pleadings a few stages of the suit as it progressed are also relevant and may briefly be stated.
9.1.On 19.10.94, the issues were framed in the presence of Counsel for the parties. Neither an issue was framed nor claimed on territorial jurisdiction of the Court.
9.2.On 25.5.95, the plaintiff examined himself. For remaining evidence the Court wanted to take up the case on the following day, which was a prefixed date, .-but at the request of Counsel for the defendant the case was adjourned to 14.7.95. On 14.7.95 and 21.8.95 adjournments were taken on behalf of the defendant though the plaintiff was present in the Court. On 14.7.95, the plaintiff declared his evidence closed. Then the defendant and her Counsel absented on 12.9.95 and the case was directed to proceed ex-parte. On 5.10.95 when ex-parte arguments were to be heard, application for setting aside ex-parte proceedings was filed on behalf of the defendant which was allowed.
9.3.On 14.11.95, the defendant examined herself in her evidence. Crossexamination could not be concluded for which purpose the case was adjourned to 9.1.96 a date suited to the defendant. In between, on 4.1.96 the application for amendment was filed.
(10) It is writ large that the defendant has not only submitted herself to the territorial jurisdiction of the Court at Delhi, the trial has substantially progressed. Defendant has not filed any list of witnesses nor applied for summons to be issued. Probably she wants to examine only herself in her evidence. So all that remains to be done is to complete the cross-examination of the defendant for which her presence is required at Delhi and which she can manage without any difficulty as being an air hostess she can easily have her duty so scheduled as to be available at Delhi on the date of hearing. Even the Trial Court would liberally accommodate her while appointing the date for completing her cross-examination. At the stage of arguments her presence is not required. Belatedly she is taking a somersault, withdrawing her earlier admissions and proposing to bring on record such a new set of facts as Would amount to going back on her earlier admissions and setting up a new set of facts. It amounts to going back on her earlier admissions and setting up a new case which was not only pleaded but also not put to the plaintiff when he was in the witness box. It is pertinent to note that the defendant is an educated lady, well versed in the affairs of the world and had available legal Counsel from day one – ever since the commencement of the legal proceedings.
(11) As to an issue touching the territorial or pecuniary jurisdiction of the Court the underlying policy of the law is well spelled out by reference to a few legal provisions.
11.1.Section 21 of the Civil Procedure Code provides for such objection not being allowed by any Appellate or Revisional Court. It ordains such objection being taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement. The Appellate or Revisional Court would not permit such objection being taken unless satisfied of “a consequent failure of justice”.
11.2.Section 11 of the Suits Valuation Act, 1887 also provides for an objection on the ground of over valuation or under valuation being excluded from consideration unless taken in the Court of first instance at or before first settlement of issues and the Court having been satisfied of the consequent prejudice on merits in the disposal of the suit.
(12) The law as to amendment of the pleadings is well settled. All amendments are to be allowed except those which cause an injustice to the opposite party, or deprive him of an advantage accrued to him or place him in such a position as would not be compensated by payment of costs. Amendments moved malafide, or unnecessary or intended to over-reach the Court would also be turned down.
(13) In Mrs. Misha Vadera & Anr. v. Mr. Ravi Kumar & Ors., 1996 (II) Ad Delhi 113, a Division Bench of this Court had an occasion to review the law touching amendments under Order 6 Rule 17 of the Civil Procedure Code resulting in withdrawal of admissions in the pleadings. It has been held therein that in appropriate cases, the Court may permit withdrawal of admission in the pleadings but not if the applicant be estopped from doing so. The Court does have jurisdiction to permit such an amendment but the real question is one of the discretion of the Court. Withdrawal of admission by amendment may be allowed if there be no culpable delay or malafides in seeking the amendment, more so when it was sought at an early stage of the proceedings, was relevant and necessary so as to bring out the matters in controversy and enable the Court in arriving at a just decision of the case and no injustice was worked out to the opposite party. In the case at hand the tests so indicated by the Division Bench relay all answers against the defendant.
(14) Reference to a few decided cases would be apposite.
14.1.In M/s. Nanak Chand, Shadurain v. The Tinnelvely-Tuticorin Electric Supply Co. Ltd., Calcutta, an objection as to the territorial jurisdiction of the Court was taken in the written statement, but was not pressed for decision as a preliminary issue. The trial was allowed to go on all the issues. The Division Bench held that rule embodied in Section 21 of the Civil Procedure Code was “a rule of prudence as well as a rule of guidance.” The Court further held : “If by and act of omission or commission the defendant having raised the plea as to jurisdiction does not even ask for trial of the issue on such jurisdiction as a preliminary issue, and allows the trial to go on in the usual course on all the issues, he should be deemed in such circumstances to have waived his objection as to jurisdiction.”
14.2.In Ajaib Singh v. Baldev Singh, , an objection as to the territorial jurisdiction was sought to be raised by way of amendment when the evidence was concluded by the parties. So also in Godadhar Das v. Jatinder Nath Das & Ors., , objection to the pecuniary jurisdiction was sought to be raised after the issues were settled and the suit had been set down for hearing. In Shishu kumar by his next Friend Smt.b Mallamma v. Siddalingaiah & Anr., 1980 (2) Kant. 1179 a similar plea was sought to be raised when the plaintiff had examined all his witnesses and closed his case and some of the defendant’s witnesses were also examined. All the three High Courts have held that such an objection sought to be raised by way of amendment in the written statement was “at a late stage” and in the absence of prejudice to the defendant or failure of justice having been occasioned, the amendment could not be allowed.
(15) Faced with the above said situation, the learned Counsel for the defendant petitioner submitted that an objection as to the territorial jurisdiction was taken, at the earliest, in the application under Section 24 (it should have been Section 26) of the Hindu Marriage Act filed on 15.10.93. Reliance was placed on the contents of para I thereof which is extracted and reproduced hereunder : “That the present petition filed by the petitioner is liable to be dismissed out rightly as the petitioner has concealed material facts from this Hon ‘ble Court. The petitioner has approached this Hon’ble Court with unclean hands and is not entitled to any relief whatsoever as prayed for. The parties had set up their matrimonial home at Bombay. The marriage had. taken place at Bombay and the respondent also resides at Bombay. Therefore, this Hon’ble Court does not have the jurisdiction to try and entertain the present petition.” A few observations would demonstrate the real worth of the argument. Neither in para 1 above quoted nor in any other averment made in the application, the defendant has anywhere stated that the parties had never resided at Delhi. It is pertinent to note that the application was filed after service of the copy of the plaint on her and she was well aware of the contents thereof. Secondly, it is clear from the facts stated herein-above that the defendant never persisted in or pressed her above said plea before the Court. The Court having awarded maintenance leading to the disposal of the application, the defendant rested contended. While filing her written statement she consciously conceded to the territorial jurisdiction being available with the Court at Delhi. The objection as to the territorial jurisdiction raised in para I of the application dated 15.10.93, for whatever worth it was, stood waived and given up.
(16) It may also be placed on record that the learned Counsel for the wife petitioner has made his detailed submissions at the hearing of the civil revision, but there is no whisper made either in the application for amendment or in the memo of revision or even during the course of oral submissions if the exercise of territorial jurisdiction by the Court at Delhi has caused or resulted in any prejudice to the defendant-petitioner in contesting the suit.
(17) To sum up, a defendant who has submitted to the territorial jurisdiction of a Court and allowed the trial to progress substantially cannot be allowed to raise a plea depriving the Court of its jurisdiction, by moving a belated application for amendment in written statement; more so when the delay is not satisfactorily explained and no prejudice on merits of the trial is shown to have been occasioned.
(18) The learned Counsel for the petitioner placed-reliance on Panchdeo Narain Srivastava v. Km. Jyoti Sahay & Anr., in support of the submission that an admission in the pleadings can be permitted to be withdrawn. It was a case where the plaintiff had described himself as the son of ‘uterine’ brother of R and subsequently moved an application seeking deletion of the word ‘uterine’ from the plaint. The question was of the status of the plaintiff. Explanation was offered for withdrawing the admission which was accepted by the Trial Court granting the application for amendment. Their Lordships of the Supreme Court held that the jurisdiction having been reasonably exercised by the Trial Court, should not have been interfered by the High Court in exercise of its revisional jurisdiction. Such is not the case here.
(19) The learned Counsel for the petitioner also cited a few decisions defining the concept of ‘matrimonial home’. It is not necessary to deal with those rulings and burden this judgment thereby as it is unnecessary.
(20) Matrimonial cases are expected to be dealt with and disposed of expeditiously. The application for proposed amendment in the written statement and the present revision are an unjustified attempt at delaying the suit. The wife-petitioner would be better advised to appear before the Trial Court – just for once, have the cross-examination completed and produce her other evidence, if any, 30 as to witness an early conclusion of the suit. No useful purpose would be served by her trying to shift the venue and thereby dragging the proceedings to a Court at Bombay. This is just a word of Counsel; else I have no hesitation in my mind in coming to the conclusion that the rejection of the application for amendment is well merited and no option other than the one chosen by the learned trial Judge was open and available judicially.
(21) The revision is dismissed.