HEMANT KUMAR SAHU Vs. GITA BAI

JUDGEMENT

(1.) The applicant-husband's suit before the trial Court for a decree for dissolution of marriage is based on the allegation that the non-applicant/wife is guilty of wilful desertion. To establish this plea, he put certain questions to her in cross-examination. These questions were in furtherance of his attempt to show that the non-applicant took to service as a teacher despite applicant's opposition and that in connection with her 1 service she stayed away from the applicant thus wilfully depriving him of her company. Such questions were disallowed by the lower Court for want of any plea in that behalf. At this, the applicant applied for amendment of his plaint seeking permission to incorporate those facts which he put to the non-applicant during her cross-examination. The applicant clearly stated in the application that as a result of such amendment, he would adduce no further evidence and will not further examine either himself or his witnesses but shall only be content with cross-examining the non applicant and her one witness who remained to be examined. By the impugned order, the application seeking amendment of the plaint has been rejected.

(2.) It needs no detailed discussion to say that the impugned order is incorrect and exhibits exercise of jurisdiction illegally and with material irregularity. The applicant had come out with a specific case that his wife, the non-applicant had deserted him. He wanted to establish this by cross-examining the non-applicant by introducing circumstances which led her to live away from him and thus to desert him. He ought not to have been prevented from so doing as the facts sought to be so introduced were only secondary and need not have been pleaded when the primary fact of desertion was specifically pleaded and was put in issue. It appears that in order to avoid the objection raised on the ground of want of plea the amendment was proposed. Keeping in view the principles governing amendment of pleadings, I do not think that there was any impediment in granting that application. The amendment introduced no new plea but o ply sought to elaborate the plea already raised. It cannot be said that the application for amendment was malafide as the applicant specifically stated that he would not adduce any evidence but would only cross-examine the non-applicant and her remaining witness. The amendment, if allowed to be male, shall obviously cause no working injustice to the non-applicant.

(3.) I allow this revision, set aside the impugned order and permit the applicant to amend the plaint as proposed on payment of Rs. 50.00 as costs to the non-applicant. The costs of this revision shall be borne by the parties as incurred.