PRAVIN KUMAR GUPTA Vs. VINEETA ALIAS GEETA RANI

JUDGEMENT

(1.) Heard Mr. Kamlesh Kumar, learned Counsel for the applicant. List is revised. When the revision was filed, the Court was pleased to direct the applicant to serve the respondent. The respondent after service, has filed appearance through Mr. R.P. Singh Chauhan and Mr. A.K. Singh Chauhan. In the revised list, the learned Counsel for the respondent has not attended the Court. The Court was of the view at the time when the revision itself was filed, disposed of the revision finally as it relates to suit for restitution of conjugal rights / divorce under Hindu Marriage Act. The suit was filed in 1993.

(2.) The impugned order is by the Family Court Judge, rejecting the application for amendment. Initially the suit was filed for restitution of conjugal rights u/ Section 9 of the Hindu Marriage Act. During the pendency of the suit, application was moved by the applicant for amendment in the plaint seeking addition of relief of divorce Under Section 13 of the Act. The Court below refused to allow the application for amendment on the ground that the husband by the amendment sought has tried to add a fresh cause of action in the suit which is a cause of action which arose later after filing of the suit. The learned Court below was of the view that if Section 13 of the Hindu Marriage Act is added and the relief as claimed is added the original prayer of restitution of conjugal rights would become redundant and infructuous. For these reasons the Court declined to allow the amendment application.

(3.) The learnced Counsel for the applicant cited a decision, 1985 Allahabad Weekly Cases 177, Smt. Krishna Devi v. Addl. Civil Judge, Bijnor and Ors. The learned Judge while considering a similar dispute was pleased to refer a decision of Hon'ble Supreme Court Firm Shri Nivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 and quoted the principle of law laid in the said decision : "A plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more consistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendent himself makes."