Smti.Kavita Das v. Shri. Sudeep Kishen

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] *** CO/23/2025 Smt. Kavita Das Vs Shri. Sudeep Kishen Mr. Gopala Binnu Kumar Ms.Vinita Devi ... for the petitioner Mrs.Anjili Nag, Sr. Adv.

Mr. Adarsh Ilango ... for the opposite party April 11, 2025 [AKB] Item No.3

1. The love affairs between the parties which culminated into marriage had become sour when the respondent husband brought the matrimonial proceeding praying for a decree of divorce on the ground of cruelty against the petitioner herein. The petitioner /wife contested the said matrimonial proceeding and filed a written statement denying the husband's case for divorce. During the pendency of proceeding, due to alleged inordinate delay, the husband/respondent herein moved the Hon'ble Court, and the Hon'ble Court was pleased to direct to dispose of the matter within six months from the date of order of the Hon'ble Court.

2. After framing of the issues, the date was fixed for evidence in the month of April, 2025 which was subsequently preponed at the instance of the husband on 18.03.2025. Thereafter, the wife has prayed for amendment of her written statement for inserting certain averments on the ground that at the time of filing written statement her erstwhile advocate did not incorporate such facts and after the same being noticed by the present counsel and on being advised she prayed for an amendment of her written statement which, in effect, as per submission of the wife, would not change the nature and character of her defence case.

3. The said prayer for amendment of the written statement was rejected by the learned Judge, Family Court, Port Blair on the ground that the said facts were already within the knowledge of the opposite party/ wife at the time of filing of written statement and such prayer for amendment cannot be allowed since wife/respondent therein tried to insert a plea of her counterclaim in a designed manner.

4. The learned counsel for the petitioner/wife, Mr. Kumar, has submitted that there are several case laws which show that the prayer for amendment of written statement cannot be guided by the principles concerning amendment of the plaint. It is quite different. However, Mr. Gopala Binnu

Kumar has drawn the attention of this Court to the judicial decision reported in (2002) 6 Supreme 424 (Sampath Kumar vs Ayyakannu & another) to convince this court that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. He has also referred to another case law reported in (2006) 5 Supreme 943 (Baldev Singh & Others vs Manohar Singh & Another) in support of his contention. Various decisions of the Hon'ble Supreme Court and also High Courts have enjoined that the Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to other side.

In the said decision, it has been held that an additional plea of limitation should be allowed to be incorporated in the averment of the written statement by way of amendment. It is also contended that if the facts stated in the application for amendment are, in fact, an elaboration of the defence case then there is no reason for allowing such prayer for amendment of the written statement and further, if the trial does not commence, there is also no reason for not allowing such prayer.

5. By drawing the Court's attention to the case law reported in (2006) 3 Supreme 507 (Rajesh Kumar Aggarawal & Others vs

K.K.Modi & Others), learned counsel Mr. Kumar has submitted that the object of Order VI Rule 17 of Code is that Court should try the merits of the case that come before them and should allow all amendments that may be necessary for determining real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. In deciding whether an application for amendment should or should not be allowed, the court should not go into the correctness or the falsity of the case in the amendment.

6. Learned counsel Ms.

Nag, representing the husband/respondent herein has submitted that the only object to file the said petition for amendment of written statement is to cause delay and protract the trial, after knowing fully well that parties to the relevant matrimonial proceedings were directed to conclude the proceeding within six months from the date of the relevant order of the Hon'ble Court. The learned counsel has also drawn the attention of this Court by showing that though the petitioner/wife herein had submitted a written statement long before but she wants to bring a plea of counter claim in the said written statement in the garb of amendment. The efforts taken by the petitioner/wife for introducing counter claim in the

written statement are in violation of the settled principles of law and such counter claim cannot be filed after a prolonged period of submission of the written statement.

7. Ms. Nag has drawn the attention of this court to the decision of the Hon'ble Supreme Court reported in 2020 (1) PLR 732 (Ashok Kumar Karla vs Wing CDR Surendra Agnihotri and others). According to such judicial decision, the outer limit for counter claim cannot be extended after framing of issues. Therefore, as the issues were framed and recording of evidence of the witnesses is to be commenced on 23.04.2025, the petition for amendment of the written statement was rightly rejected by the learned Judge, Family Court after an elaborate discussion.

8. After considering the submissions and counter submission of the parties, it appears to me that the basic principles for allowing the prayer for amendment of pleadings is to enable the parties to contest the suit on the basis of merits of their respective cases. Technicalities cannot be allowed to take the driver's seat in the proceedings.

9. I have gone through the schedule of proposed amendment and it appears that there are two schedules of the proposed amendment. In the first schedule of proposed amendment, there are certain matters which are already parts of record

and it is admitted by both the parties, that they are parts of the pleadings of the petitioner/husband in matrimonial proceeding also. However, I find that the first schedule of proposed amendment, in para nos. a, b, c and f are already on record and therefore, there is no need for further incorporation of such facts in the body of the written statement.

10.

However, it appears that if the para nos. d and e of the first schedule of the proposed amendment are allowed to be incorporated in the written statement, it would not prejudice the petitioner/husband in the matrimonial proceedings since they are matters of documentary evidence and are known to each of them. Accordingly, though the learned counsel for the husband raises objection for insertion of such facts to the written statement I find that no injustice would be done to either of the parties, if the para nos. d and e in the first schedule are allowed to be inserted in the written statement of the respondent/wife in the matrimonial proceeding. 11.

However so far the second schedule of amendment is concerned, it appears that the said schedule of amendment is nothing but an attempt on the part of the respondent/wife to incorporate a prayer for grant of a decree for restitution of conjugal rights in her favour. If we consider the case law of

Ashok Kumar Kalra (supra), we find that the Hon'ble Supreme Court in an unambiguous manner has been pleased to lay down the outer limit for filing counter claim which, according to such observation, shall not beyond the date of framing of issues. In this case, though the witness action is yet to start, I find that such second schedule of the proposed amendment in the application cannot be allowed in view of such settled position of law.

12.

Considering all aspects of the matter I allow the instant civil revisional application in part. The order dated 03.04.2025 passed in MAT Suit No 242 of 2023 before the learned Judge Family Court is set aside.

The petitioner/wife's prayer for amendment as mentioned in para (d) and (e) of the first schedule at page No.2 of the amendment petition of the wife be allowed to be incorporated in her written statement without prejudice to the rights and obligation of the parties involved in the said matrimonial proceedings. The proposed amendment as mentioned in the second schedule at page nos. 3 and 4 in the aforesaid petition stands disallowed.

13.

The parties are also directed to adhere to the time limit as directed by the Hon'ble Court in this regard by order

dated November 06, 2024 in CO/41/2024 in letter and spirit.

14.

The civil revisional application being CO/23/2025 is thus disposed of. No order as to costs.

15.

Let a copy of this order be sent to the court of learned Judge, Family Court, Port Blair immediately.

16.

Urgent Photostat certified copy of this order if applied for, the same be supplied to the parties upon compliance of necessary formalities.

(Apurba Sinha Ray, J.)