BIBHAS CHANDRA BOSE Vs. DOLLY BOSE NEE DUTTA

JUDGEMENT

(1.) The first part of O.6 R.17 of the Civil P.C. providing that "the Court may" allow either party to amend his pleading, has given rise to a general impression that amendments of pleading always rest in the discretion of a Court. The impression however deep-rooted, is not well-founded, for it ignores the second part of R.17 providing that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties". The user of the two words "May'' and "shall'' in such close proximity in the same sentence would at once demonstrate that one cannot mean the other, unless we choose to, which we should not, think that the Legislature had no sense of words. The conclusion, therefore, must be that while the first part of R.17 dealing with amendments in general vests the Court with discretion, the later part, dealing with such amendments as are necessary for the purpose of determining the real controversy between the parties, imposes an a obligation on the Court, and not merely a, discretion, to allow such amendments. The observation of the Privy Council in Shamu Patter v. Abdul Kadir (1912) ILR 35 Mad 607 at p. 612 must be taken to be a clear authority on the point, where analogous provisions of S.149 of the preceding Code of Civil Procedure of 1882, corresponding to O.14 R.5 of the present Code, were being considered. But we need not dilate on this aspect further as the question before us is somewhat different.

(2.) Here the question is as to what extent a party has a right to amend his pleading in order to incorporate subsequent events having a bearing on the lis in question. It is trite to say that a cause of action for a lis must precede the lis. But once a lis is so instituted on a prelitem cause of action, the Court cannot shut its eyes to, but must take note of, all such post-litem developments which are likely to affect the question to be determined in the lis. The tendency of the Court, as pointed out by the Supreme Court in Pratap Singh v. Shri Krishna, AIR 1956 SC 140 at p. 141, towards technicalities should be deprecated so that the substance may count and take precedence over form. And it would be putting too much premium on technicalities of the Rules of pleadings, and allowing them to become rather the mistress instead of being as they should be, handmaid to the cause of administration of justice, if the Court folds its hands and does not take note of all subsequent events or developments which might affect the relief claimed in the lis and drive the parties to another proceeding to obtain relief on the basis of such changed or subsequent developments. Approach to pleadings had never been that legalistic and as early as in 1915. Sir Ashutosh in a Division Bench decision of this Court in Rai Charan v. Biswanath, AIR 1915 Cal 103 clearly ruled that the Court is to take note of such subsequent events to shorten litigation and to prevent multiplicity of proceedings. This also appears to be view of the Supreme Court in M. Laxmi and Co., AIR 1973 SC 171 at p. 177 and also in Shikharchand lain, AIR 1974 SC 1178 at p. 1182 where the decision of this Court in Rai Charan (supra) has been referred to with approval.

(3.) In the case at hand, the husband-petitioner petitioned in the court below against the wife-respondent for divorce on the ground of cruelty and desertion and obtained an ex parte decree; but the same has thereafter been set aside on the application by the wife resulting in restoration of the suit which is now pending hearing in the court below. The husband now alleges that he has re-married after the ex parte decree and a daughter has also been born out of that second marriage. The husband also alleges that the wife also took away her ornaments and also some other articles. And the husband now seeks to incorporate these facts in his petition by way of amendment. What effect the restoration of this suit would have on the legality or otherwise of the alleged second marriage is a different matter. But if such a marriage has taken place in fact, we do not know why the same cannot be brought to the notice of the Court seized with the proceedings for dissolution of the first marriage before it proceeds to decree or not to decree dissolution thereof. If such a marriage has in fact taken place, it may be all the more necessary that the Court should have that fact before it in order to enable it to decide the dispute more effectively and comprehensively. In fact, this alleged second marriage, if true, might entitle the wife to seek relief or make a counter-claim under u/s. 29 of the Hindu Marriage Act, on which, however, we must not be taken to have expressed any opinion. And if this is a fact of which the Court should take note, we fail to understand why the petitioner shall not be allowed to bring it to the notice of the Court by way of amendment. Then again, the allegation as to the wife's taking away her ornaments and other articles, might, if proved, help the Court in ascertaining whether there was demonstration of any animus for the alleged desertion by one party of the other on which again we must not be taken to have expressed any opinion. And if these facts may thus be relevant in deciding the controversy between the parties, we do not know why the petitioner should not be allowed to bring in these facts in his petition by amending the same. We are accordingly of the view that the impugned order of the trial court refusing the amendments prayed for must be quashed and we would accordingly direct the trial court to allow the petitioner to make the amendments prayed for in his petition.