Sravn Satyan v. Simi Satyan

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** **OP (FC).No. 643 of 2018** **AGAINST THE ORDER IN I.A.NO.694/2018 IN OP 2502/2011 of FAMILY COURT,ERNAKULAM DATED 08-06-2018** ## **PETITIONER/S:** **SRAVAN SATYAN, AGED 48 YEARS S/O.PARAMESWARAN NAIR, REVENUE INSPECTOR, COMMERCIAL TAX DEPARTMENT, GOVERNMENT OF TAMIL NADU, THUDIYOOR CIRCLE, CHITHAMANI COMPLEX, COIMBATORE, TAMIL NADU.** **BY ADVS. SRI.K.SHAJ SHRI.THAREEQ ANVER SRI.ARUN CHAND SRI.C.IJLAL SRI.RENJIT GEORGE** ## **RESPONDENT/S:** **SIMI SRAVAN SATYAN, W/O.SRAVAN SATYAN, AGED 46 YEARS, PUTHENPURAKKAL HOUSE, C.K.SREEDHARAN ROAD, PALLURUTHY, ERNAKULAM-682 006.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI SRI.JUSTIN GEORGE** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 7.2.2019 THE COURT ON 18.3.2019 PASSED THE FOLLOWING:** ## **C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.** **--------------------------------O.P.(FC)No.643 of 2018 ---------------------------------Dated this the 18[th] day of March, 2019** ## **J U D G M E N T** ## T.V.ANILKUMAR,J. An order of the Family Court, Ernakulam in I.A. No. 694/2018 in O.P.No.2502/2011 dated 8.6.2018, dismissing the leave sought for amending pleadings in the written statement (objections) filed by the petitioner herein, is under challenge in this Original Petition filed under Article 227 of the Constitution of India. The Original Petition before the Family Court was instituted by the respondent herein, who is the wife of the petitioner, seeking restitution of conjugal rights. 2. The respondent herein, sought a decree for restitution of conjugal rights alleging that, the petitioner herein, had deserted her and the child on 18.12.2010 and resumed his employment at Coimbatore. He thereafter started living with a concubine named Menaka. These allegations against him were denied by the petitioner in his counter statement. O.P.(FC) No. 643/2018 3 3. What the petitioner sought before the court below through the proposed amendment of his pleadings is that, he wanted to incorporate few more details to substantiate the denial already taken in the defense statement. He also wanted to add a few more alleged acts of cruelty which he claims to have experienced at the hands of the respondent. The court below dismissed I.A.No. 694/2018 filed under Order VI Rule 17 of C.P.C. by accepting the objection of the respondent that, it was the second round of amendment and further it is belated. It is true that an earlier amendment to his defense statement had been granted and carried out in the pleadings. 4. The court below accepted the respondent's objection to the effect that the acts of alleged cruelty now sought to be incorporated were already available when the motion for amendment was made earlier and therefore the amendment now proposed is highly belated. Finding the conduct of the respondent also to be indiligent, the request for amendment was turned down by the impugned order. 5. We heard the learned counsel appearing on both side. 6. We cannot endorse the view taken by the court below and sustain the order dismissing the leave sought for amending the pleadings in the defense statement filed by the petitioner. We went O.P.(FC) No. 643/2018 4 through the proposed amendments and find that they are mostly clarificatory in nature, though a few additional acts of cruelty are also sought to be imputed against the respondent. Addition of the allegations on the ground of omission and elucidation of existing pleadings in the defense statement are justifiable grounds under law for allowing the amendments sought. Because, without such amendments being brought out on record, the matters in dispute between parties are not capable of adjudication. 7. The principles of law governing amendment of plaint or original petition are not strictly the same when they are referable to amendment of pleadings in the defense statement. The ordinary test applied by the courts as to incidence of change of character of the original claim or bar of limitation becomes relevant only when the leave for the proposed amendment relates to the pleadings in the plaint or original petition, unlike those in the defense statement. The courts are supposed to adopt very liberal approach in allowing amendment of the pleadings in the defense statement since any new grounds of defense brought on record seldom cause any prejudice to the plaintiff or the original petitioner as held in **Sushil Kumar Jain v. Manoj Kumar and Another [2009 KHC 4428]** and **Ruhaila Beevi v.** O.P.(FC) No. 643/2018 5 ## **Suvarna Satyam [2011 (4) KLT Suppl. 14 (Ker.)]** 8. During pendency of the O.P.No.2502/2011, the petitioner filed an original petition for divorce also, as O.P.No.123/2012, before Family Court, Kottayam raising allegations of cruelty against the respondent. It is quite natural that he would only wish to incorporate all those allegations in O.P. 2502/2011 also in order to make the pleadings in both cases consistent. This appears to be the major reason for seeking the amendment through I.A.No.694/2018. In our opinion, in order to determine the real questions in dispute between the parties, leave to amend the defense statement and bring in the relevant allegations in the defense statement is essential. There is least ground for any prejudice being caused to the respondent. None of these aspects was taken notice of by the court below and instead, giving undue importance to the objection that this was a second motion for amendment at the instance of the petitioner, the court below dismissed I.A. 694/2018 without appreciating the material question whether proposed amendment was essential for deciding the real question involved between parties in the proceeding. 9. It is true that the amendment was sought after the points were framed and the original petition was set down for evidence. O.P.(FC) No. 643/2018 6 Strictly speaking, the trial commenced as soon as the case was set down for evidence after framing the points for determination in the original petition and for that reason itself the bar under proviso to Order VI Rule 17 should apply. But the Hon'ble Supreme Court in **Sushil Kumar Jain v. Manoj Kumar and Another [(2009) KHC 4428]** held that the commencement of trial must be understood in the limited sense as meaning the final hearing of preliminary examination of witnesses, filing of documents and addressing of arguments. Applying this test, the proviso to Order VI Rule 17 does not apply to the case on hand where the examination of parties is yet to begin. Thus on facts as well as law, the impugned order cannot be sustained under law and it requires to be set aside. 10. But at the same time, we find that the respondent ought to have been prompt and alert in moving for amendment, especially when it was a second motion for amendment. A party cannot be allowed to abuse the process of court and pursue his contentions in any manner he pleases with scant regard to the time and energy of the opposite parties. Thus, taking into account all these aspects, we are of the view that the petitioner shall be mulcted with cost of `5,000/- to be paid as a condition for granting leave for amendment O.P.(FC) No. 643/2018 7 of the defense statement. In the result, impugned order dated 8.6.2018 in I.A.No. 694/2018 in O.P.No.2502/2011 on the file of the Family Court, Ernakulam is set aside, subject to the petitioner paying a cost of `5000/- within 10 days from the date of obtaining a certified copy of this judgment, before the court below. In case the petitioner fails to pay the aforesaid cost, within the stipulated period, the impugned order will stand confirmed and this O.P. will stand dismissed. **Sd/-** **C.K.ABDUL REHIM JUDGE** **Sd/T.V.ANILKUMAR, JUDGE** al/- O.P.(FC) No. 643/2018 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF THE O.P.NO.2502/2011 PENDING BEFORE THE FAMILY COURT, ERNKAULAM.** - **EXHIBIT P2** - **A PHOTOCOPY OF THE WRITTEN OBJECTION FILED BY THE RESPONDENT IN O.P.NO.2502/2011 BEFORE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P3 A PHOTOCOPY OF THE AMENDED WRITTEN OBJECTION IN O.P.NO.2502/2011 BEFORE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P4 A PHOTOCOPY OF I.A.NO.694/2018 IN O.P.NO.2502/2011 FILED BY THE PETITIONER TO AMEND THE OBJECTION FILED BEFORE THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P5 A PHOTOCOPY OF THE OBJECTION FILED BY THE RESPONDENT IN I.A.NO.694/2018 BEFORE THE FAMILY COURT, ERNAKULAM.** - **EXHIBIT P6 A PHOTOCOPY OF THE ORDER DATED 08.06.2018 IN I..NO.694/2018 IN O.P.NO.2502/2011 ON THE FILE OF THE FAMILY COURT, ERNKAULAM.** RESPONDENTS EXHIBITS : NIL TRUE COPY P .S TO JUDGE AL/