HARISH CHANDER Vs. BHARTI

JUDGEMENT

(1.) The plaintiff in the suit is the revision petitioner. He had filed the suit for a declaration thai the marriage between the plaintiff and the defendant was null and void. The petitioner filed, in the first instance, an application for amendment of the petition. When that was taken up for hearing/ the petitioner withdrew the same and the lower Court dismissed the amendment application as withdrawn imposing costs of Rs. 500.00. That was complied by with the petitioner and the costs had been paid to the defendant. The order dated 1.12.1998 of the lower Court reads as under: "Arguments heard on the application under Order 6 Rule 17, CPC. By this application, the petitioner wanted to bring on record the factum with regard to incorrect disclosure of the date of birth of the respondent. According to him further of the respondent. Dr. Rajinder Parkash, had given him wrong information about date of birth of the respondent as on 22.9.1971. However, it was alleged that petitioner came to know from reliable source i.e., Council of Indian School Examination that date of birth of the respondent was shown as 22.9.1969. After reply was filed and certificates issued by Indian School Examination, copy of which has been placed on record which depicts that date of birth of the respondent was 22.9.1971 and in the face of denial of the allegations that the father of the respondent given her date of birth as 22.9.1971, learned Counsel for the petitioner wants to withdraw the said application. Hence, same is dismissed as withdrawn with costs of Rs. 500.00. Now to come up for P.E. on 7.1.1999. The petitioner has filed an application under Order 6 Rule 17, CPC. Copy given. Let reply thereto be filed on next date."

(2.) On the day when the application for amendment was withdrawn, the second application was filed for amendment of the petition on the basis of materials gathered by the petitioner.

(3.) By order dated 22.2.1999, the learned Additional Distri:t Judge dismissed the second application on the ground that the petitioner was precluded from filing the second application for amendment and it was an abuse of process of law. The order reads as under: "Arguments heard on the application under Order 6 Rule 17, CPC dated 1.12.1998 whereby petitioner seeks amendment of his petition by adding the fact that on 13.5.1998 he came to know through Smt. Savita - relation of the respondent, that respondent is elder in age by two years than the petitioner, and that the respondent was born on 23.9.1969 and not on 22.9.1971 as disclosed by her father during negotiation of marriage. It is further stated that petitioner also became doubtful as respondent also passed 10th Class examination in March, 1985 at the age of 13-1/2 years. It is further stated that facts about date of birth have also come to the know of the petitioner after inspection of the record of Birth and Death Registrar of Dehradun and record of the hospital, who in it has been stated that mother of the respondent gave birth to the child/respondent on 23.9.1969. The application has been opposed on the ground that earlier application filed on the same ground has been dismissed by this Court on 1.12.1998. It may be observed that in the rst application the petitioner had sought amendment of his plaint for bringing on record the fact that father of the respondent had disclosed the date of birth of the respondent as 22.9.1971 whereas her actual date of birth was 22.9.1969. At that he sought assistance to prove this fact on the basis of record of Council for Indian School Certificate Examination, New Delhi. Thereafter the respondent contested this application and placed on record certificate issued by Indian Council of Certificate which shows that date of birth of the respondent as shown in the said certificate is 22.9.1971. After this certificate was placed on record by the father of the respondent the petitioner sought withdrawal of that application. Accordingly same was dismissed as withdrawn with costs of Rs. 500.00. Question which arises for consideration is whether the amendment which is sought to be brought on record by amendment, basically is the averments that a fraud was played by the respondent's father at the time of negotiation of marriage by disclosing her date of birth as 22.9.1971 instead of 22.9.1969. The present application is also on the same cause of action but with a different set of evidence. The petitioner is precluded from making a similar application on the same ground even if he now holds a different set of evidence in his possession. What is required to be seen is the nature of amendment sought for and not the evidence/documents in support of the proposed amendment keeping in view the basic purpose of the petitioner is to show that fraud was played upon by misrepresentation of facts. Allowing the petitioner to bring similar amendment on the basis of different set of evidence would be misuse of the process of the Court. The powers of the Court under Order 6 Rule 17, CPC is not meant for this purpose. Hence the application is rejected as barred by the principle of res judicata with no orders as to costs. Now to come up for PE on 21st and 22nd April, 1999."