D.Prabhu v. J.Shanmugapriya

2.The facts in brief:

H.M.O.P.No.178 of 2017 was filed by the petitioner herein seeking the relief of declaration that the marriage took place on 09.12.2016 is null and void. The respondent herein appeared and filed the counter also. In the counter, she has admitted exchange of jewels, etc. facts. Later she filed I.A.No.16 of 2018 seeking the return of jewels, house hold articles etc., under Section 27 of the Hindu Marriage Act, 1956. In that affidavit she has admitted that the articles mentioned in para No.4 are in her possession or custody. But, later filed the impugned interlocutory application seeking amendment of affidavit stating that there is a typographical error in the affidavit with regard to the possession of the articles and jewels, that came to be allowed by the trial Court accepting the contentions. Against which, this revision has been preferred.

3.Heard both sides.

4.The learned counsel for the revision petitioner straight away

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relied upon the order of the Honourable Supreme Court passed in Civil Appeal No.5909 of 2022 dated 01.09.2022, in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Anr.

and would submit that once admission is made in the form of pleadings no amendment is permissible, which will amount to withdrawing the admission, which is not permissible under law. The various guidelines have been issued by the Honourable Supreme Court as to how to entertain the amendments. Para No.70 can be extracted for better appreciation.

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in

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the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of

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pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with

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respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)" 5.But, here as mentioned above, there is contention of revision petitioner that there is clear admission on the part of the respondent that the jewels and articles mentioned in para No.4 is in her custody. But that

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admission now sought to be withdrawn by way of filing this petition. Usual ground has also been made there is a typographical error. 6.But, reading of the entire affidavit indicates that there is prima facie ground to plead that it is only a typographical mistake. The total jewels mentioned in para No.11 is 120 sovereigns of gold jewels. In the disputed portion she has mentioned that 120 sovereigns of gold jewels along with articles is in their possession. The jewels gifted by the bride family numbering about 6 malai along with the above said 120 sovereigns of gold jewels is in the possession of bride's family. So both are mutually contradictory in nature, which one is true can be find out during the course of enquiry or the trial as the case may be. So it is too premature stage to record a finding about the possession of jewels. No prejudice will be caused to the revision petitioner with regard to his case. He can very well plead his case at the time of enquiry or trial as the case may be as noted above. That can also be verified with further referring to the petition. The respondent has reproduced the particulars mentioned in para No.4 in the petition. So there is indication to the effect that the above said portion is nothing but a typographical error. Of course with

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the above said observation to be made by this Court with regard to the issue. The petitioner is at liberty to make objection at the relevant point of time. The trial Court may consider the merits of the case without being influenced either by his own order in allowing the amendment petition or the observation made by this Court in this petition. 7.With the above said directions and observations, this civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.

12.02.2024

NCC : Yes / No Index : Yes / No Internet : Yes / No

TM

To 1.The Principal Subordinate Judge, Palani. 2.The Section Officer,

E.R.Section/V.R.Section,

Madurai Bench of Madras High Court, Madurai.

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G.ILANGOVAN ,J.

TM

C.R.P.(MD)No.3010 of 2023

12.02.2024

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