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ALLAHABAD HIGH COURT
Sunita Agarwal, J.
Kuldeep Kumar and Anr. —Petitioners
versus
Navin Kumar and Anr. —Respondents
Matters Under Article 227 No.4974 of 2017
Decided on 30.8.2017
Counsel for the Parties:
For the Petitioners:Avanish Mishra, Advocate
.IMPORTANT POINT
Amendments of pleadings should be refused only where other party cannot be placed in same position as if pleadings had been originally correct.
Headnote:(A) Civil Procedure Code, 1908—Order VI Rule 17—Amendment of plaint—Parameters— Amendments of pleadings should be refused only where other party cannot be placed in same position as if pleadings had been originally correct—Permitting amendment would be unjust and result in prejudice to opposite party which cannot be compensated by costs or would deprive him of a right which accrued to him with lapse of time—Object and purpose of Order 6 Rule 17 of Code of Civil Procedure is to shorten litigation and to settle entire dispute in one proceeding to its logical end—As to stage of amendment, there is no hard and fast rule. (Paras 9 and 10)
(B) Civil Procedure Code, 1908—Order VI Rule 17—Amendment of plaint—Proposed amendment in plaint relief is a prayer for consequential relief—Pleadings in this regard are already contained in original pleadings/plaint—Evidences have been led by parties and defendants have an opportunity to file their additional written statement/objection to amended pleadings and plaint relief—Merely because suit has reached stage of evidence, looking to nature of amendment, same could not have been rejected on ground of delay—Plea of defendants that a separate suit is required to be filed for custody of child by natural guardian before family court is misconceived in as much as matter of adoption of a child or declaration of adoption deed as void document is beyond jurisdiction of Family Court. (Paras 13 and 14)
Result: Petition dismissed.
Sunita Agarwal, J.—The orders dated 14.07.2017 and 18.05.2017 passed by the District Judge, Meerut in revision Nil of 2017 (Kuldeep Kumar & Another vs. Nain Kumar & Another) and Additional Civil Judge (S.D.), Court No.8, Meerut in original suit no.683 of 2012 are under challenge.
2. A perusal of the record indicates that the aforesaid suit was filed by the parent/natural guardian of the child namely Hemang Dev in the year 2012. The contention therein is that child was never adopted by the defendants who are brother and sister-in-law of plaintiff no.1. The registration of the adoption deed was a result of fraud committed upon the plaintiffs. The cause of action for filing the said suit arose on 23.05.2012 when the defendants had refused to cancel the said deed by mutual consent.
3. The said suit was contested by the defendants by filing a written statement wherein it was admitted that Hemang Dev, for whose adoption deed in question was registered is real son of the plaintiffs. However, it was submitted that the adoption deed was executed after adopting due procedure and performance of rituals for adoption. The registered deed of adoption could not be cancelled by the Court. In the said suit, evidence of the parties have been recorded.
4. At this stage, an application 55-Ka dated 27.02.2017 under Order 6 Rule 17 of the Code of Civil Procedure was filed by the plaintiffs for amendment of paragraph no.13 of the plaint and the plaint relief in paragraph no.16. The original paragraph no.13 of the plaint and the plaint relief in paragraph no.16-A are as under:—
(Matter in Other Language)
5. The proposed amendment in paragraph no.13 (13-A) and the plaint relief in paragraph no.2 of the amendment application are as under:—
(Matter in Other Language)
6. A perusal of the original pleadings and proposed amendment would indicate that the plaintiff’s case was that the defendants got the adoption deed executed by forgery and by the proposed amendment it was sought to be added that the plaintiff’s younger son was brain-washed by the defendants. A complaint was made in the police station that the defendants are forcibly keeping their child with them. By way of amendment in the plaint relief the custody of minor child was sought by the plaintiffs. The trial court had allowed the amendment of plaint. The revision was rejected as not maintainable.
7. Challenging the orders of allowing amendment, the contention of learned counsel for the petitioner is that the suit for custody of a minor can only be maintained before the Family court under section 7(g) of the Family Courts Act, 1984. The Civil Court has no jurisdiction to grant relief sought by way of proposed amendment. Alternative submission is that the amendments are highly belated. The suit has proceeded to an advance stage i.e. at the stage of evidence. In view of the proviso to Order 6 Rule 17, no amendment could be allowed at the stage of evidence i.e. after the trial had commenced. Moreover, by way of amendment, the nature of the case and relief has been changed materially which was not permissible. The revisional court has erred in dismissing the revision on the ground of maintainability.
8. In the light of the dispute being raised by the plaintiffs and in view of the admitted fact that the plaintiffs are natural guardians of the child, the deed of adoption having been challenged before the civil court it cannot be said that the Civil Court has no jurisdiction to grant custody of child to natural guardian. The relief of custody of child prayed by natural guardian is a consequential relief to the declaration sought by them to declare the deed of adoption as null and void document. The family Court under the Family Courts Act’ 1984 has no jurisdiction to declare the adoption deed as void document.
9. So far as the delay in moving amendment is concerned, as a general rule, all amendments sought are to be allowed which satisfy two conditions; (i) they are not working injustice to the o
