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2004 Supreme(SC) 1532
SUPREME COURT OF INDIA
R.C. LAHOTI, CJI., D.M. DHARMADHIKARI AND G.P. MATHUR, JJ
K. KANNAN APPELLANT;
VERSUS
K. JAYALAKSHMI RESPONDENT.
CIVIL APPEAL NO 7875 OF 2004,
DECIDED ON DECEMBER 6, 2004
Headnote:
Civil Procedure Code, 1908, Order 6, Rule 17 - Hindu Marriage Act, 1955, Section 13(1) - Appellant sought dissolution of marriage under Section 13(1) alleging cruelty on the part of respondent/ wife - Amendment of petition sought for incorporation specific instances of alleged cruelty- Application dismissed by trial court- Revision petition also dismissed by the High Court- Not proper- Under Order 6 Rule 17 the Court has discretion to permit any alteration or amendment in the pleadings of any party, if such amendment is necessary for the purposes of determining the real questions in controversy between the parties- Amendment allowed- Trial court to proceed according to law on merits [Paras 3 and 4]
ORDER
1. NONE APPEARS FOR THE RESPONDENT THOUGH SERVED.
2. LEAVE GRANTED.
3. THE APPELLANT FILED A SUIT FOR DISSOLUTION OF MARRIAGE BY A DECREE OF DIVORCE UNDER SECTION 13(1) OF THE HINDU MARRIAGE ACT, 1955 ALLEGING CRUELTY ON THE PART OF THE RESPONDENT. DURING THE PENDENCY OF THE SUIT THE APPELLANT MOVED AN APPLICATION UNDER ORDER 6 RULE 17 CPC SEEKING INCORPORATION OF A FEW FACTS BY WAY OF AMENDMENT IN THE PLAINT. A PERUSAL OF THE APPLICATION FOR AMENDMENT SHOWS THAT THE APPELLANT HAS SOUGHT FOR PLEADING CERTAIN SPECIFIC INSTANCES OF ALLEGED CRUELTY AND CONDUCT OF THE RESPONDENT IN SUPPORT OF THE RELIEF ALREADY SOUGHT FOR IN THE PLAINT. THE TRIAL COURT REJECTED THE APPLICATION AND A PETITION UNDER ARTICLE 227 OF THE CONSTITUTION FILED BY THE APPELLANT ALSO CAME TO BE DISMISSED BY THE HIGH COURT.
4. HAVING CAREFULLY PERUSED THE CONTENTS OF THE APPLICATION FOR AMENDMENT OF THE PLAINT AND THE PLAINT AS INITIALLY FILED, WE ARE SATISFIED THAT THE PRAYER FOR AMENDMENT COULD NOT HAVE BEEN REFUSED. UNDER ORDER 6 RULE 17 CPC THE COURT HAS DISCRETION TO PERMIT ANY ALTERATION OR AMENDMENT IN THE PLEADINGS OF ANY PARTY, IF SUCH AMENDMENT IS NECESSARY FOR THE PURPOSES OF DETERMINING THE REAL QUESTIONS IN CONTROVERSY BETWEEN THE PARTIES. THE APPLICATION FOR AMENDMENT WAS MOVED FOR THIS PURPOSE. THE TRIAL COURT AND THE HIGH COURT WERE NOT, IN OUR OPINION, RIGHT IN REFUSING THE PRAYER FOR AMENDMENT.
5. THE APPEAL IS ALLOWED. THE ORDER OF THE 1ST ADDITIONAL JUDGE, FAMILY COURT DATED 23-2-2004 AND THE ORDER OF THE HIGH COURT DATED 23-4-2004 ARE BOTH SET ASIDE. THE APPLICATION UNDER ORDER 6 RULE 17 ERE DATED 22-9-2002 SHALL STAND ALLOWED. THE PROPOSED AMENDMENT SHALL BE INCORPORATED IN THE PLAINT: THEN THE 1ST ADDITIONAL JUDGE, FAMILY COURT SHALL PROCEED TO HEAR AND DECIDE THE CASE IN ACCORDANCE WITH LAW.
