BALASAHEB Vs. MANGAL

JUDGEMENT

(1.) THIS revision petition under Section 115 of the Code of Civil Procedure arises from the order dated 28-8-1996 passed by Sri S. B. Deshpande, Civil Judge and Assistant Sessions Judge, athani, on I. A. I application for amendment of the pleadings in petition for divorce, viz. , matrimonial Case No. 16 of 1995. The Trial Court rejected the amendment application taking a view that it was belated and afterthought and that the amendment if allowed would introduce a new case or new cause of action. The learned Counsel for the petitioner contended that the Court below has erroneously taken a view that the amendment will amount to introducing a new cause of action or case. The learned Counsel contended that the amendments are to be allowed which are necessary for determination of the dispute between the parties, and the amendment in question was necessary to amplify the pleadings and even if it is belated it has got to be allowed, because it is not going to cause any injustice. This contention of the learned Counsel for the petitioner is hotly been contested by the respondent's Counsel, by Sri Mahantesh Hosmath. According to him, the Court below was not wrong in rejecting the amendment by taking a view that the amendment was contrary to the main petition and that the same was not maintainable. The order cannot be said to be suffering from jurisdictional error. He further submitted that the amendment sought is most belated and there is no explanation why the said allegations were not mentioned in the main petition.

(2.) I have applied my mind to the contentions of the learned Counsel for the parties. The jurisdiction of this Court under Section 115 of the Code of Civil Procedure is beyond doubt confined to jurisdictional error coming within the framework of either of clause (a), (b) or (c ). When the Court below misreads the pleadings and arrives at a conclusion on a question upon which the Court can exercise the jurisdiction to allow the amendment it may be said to be a case of jurisdictional error and the Court may be said to be either illegally refusing to exercise the jurisdiction or may be said to be illegally usurping the jurisdiction when it acts without properly appreciating the pleadings of the parties. In the present case, the Trial Court does not appear to have read nor to have considered the allegations made at paragraphs 4 and 5 of the main petition for dissolution of marriage by divorce. That on a reading of amendment application and amendments sought along with the allegations made in paragraphs 4 and 5 of the main petition, it can be said the proposed amendments cannot be said to be making out a new case instead it amounts to amplification of what has been stated in paragraphs 4 and 5 of the petition. The proposed amendments read as hereinafter. Thereafter para 3 the following was sought to be added as para 3-A to the main petition:

(3.) THE respondent lived with the petitioner till 13-11-1985. On 11-11-1985 the petitioner's brother died after he was involved in an accident. The petitioner, and the respondent along with all relations went for the same. The respondent stayed back and refused to return with the petitioner in spite of the request by the petitioner. Thus it was clear that she was not anxious to lead marital life with the petitioner and abandoned him, even though petitioner wanted to live with her. Her living away from the petitioner is without any justifiable cause and she has ever since deserted the petitioner without lawful excuse. It has become apparent that she has no intention of joining the petitioner and she never returned after she left on 13-11-1985. Ever since then the petitioner has been living separately at Changalpattu". Paragraph 4 very clearly reveals that ever since the marriage the respondent was not or had not been affectionate towards the petitioner and she was not attending to the comforts of the petitioner. It has further been stated that the petitioner was not given conjugal happiness expected to be given by a wife. The allegations are no doubt vague. So it appears that the petitioner by addition of paragraph 3 (A) wanted to amplify what has been stated in paragraph 4. In paragraph 5 also it has been stated that the respondent was not anxious to lead marital life with the petitioner. There can be abandonment and cruelty, when husband and wife live together and urge of sex also being a natural urge, the deprivation thereof of either of the party to the other in an unreasonable manner may provide a ground if it is established amounting to cruelty. These amendments also explain what has been stated in paragraph 5. So the amendment that has been sought by the applicant by moving the amendment application can well be said to be amplification. No doubt, the amendment sought to be made is belated and really these assertions have to be made at the earliest point of time. It is well-settled that where the amendment sought results in making out a new case or a new cause of action in the sense as explained by their lordships of the Supreme Court in the case of A. K. Gupta and Sons Limited v Damodar Valley corporation, these amendments cannot be allowed. But where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to merely to a different or additional approach to the same facts the amendment has to be allowed even after the expiry of the period of limitation. Their Lordships have explained the law as to new case or new cause of action and when it may be allowed even after the expiry of limitation in paragraphs 7 to 9. The materials observations of their Lordships reads as under.