SUPRIYA CHAKRABORTY NEE PARAMANIK Vs. CHAMPAK KUMAR CHAKRABORTY

JUDGEMENT

(1.) This is an application under Section 115 CPC directed against order no. 90 dated 13.1.98 and order no. 95 dated 2.3.98 passed by the ld. Second Additional District Judge in Mat. Suit No. 75 of 1993.

(2.) . The opposite party husband filed the suit under Section 27 of the Special Marriage Act for divorce on the grounds of cruelty and desertion. He subsequently filed a petition under order 6 Rule 17 read with Section 151 CPC on 11.12.97 for amendment of the plaint for addition of an alternative prayer for a decree of nullity of marriage for non-consummation of the marriage between the parties and also for consequent amendment of the cause title of the plaint. The respondent wife opposed the prayer for amendment by filing written objection on 5.1.98. The court below was of the view that inview of the averments already made in the orginal plaint to the effect that there was no cohabitation between the parties, the alternative prayer for a decree of nullity of marriage under Section 25 of the Special Marriage Act could have been made at the very inception and that there was no legal bar to making good the omission and as such, the court below was inclined to allow the petition for amendment but since the said amendment was being made after a lapse of five years from the date of filing of the plaint, the court allowed the amendment subject to payment of cost by the plaintiff opposite party to the respondent petitioner and fixed 28.1.98 for payment of such cost and also for further order with regard to the amendment petition. On 27.2.98, the plaintiff tendered the amount of cost to the respondent petitioner who refused to accept the same on the ground that it was not paid within the date fixed and filed an application praying for rejecting the amendment. Upon hearing both parties, the court gave the liberty to the plaintiff to make the payment of cost by challan in favour of the respondent and fixed 2.3.98 for filing the challan, and on that very date ( 27.2.98 ) the plaintiff filed a petition praying for depositing the amendment cost in the court and the court was pleased to allow the prayer and directed the challan to be filed on the date fixed. On the date fixed, the challan showing the deposit of amendment cost was filed and the court was pleased to finally allow the amendment of the plaint. Being aggrieved by this amendment, the wife respondent has come up in the present revision.

(3.) First, it has been contended by Mr. Tapan Dutta, the Id. counsel appearing on behalf of the petitioner that it is one of the settled principles of law that the amendment should not be granted so as to convert the suit into another of a completely different, new and inconsistent character and that by allowing the amendment the Id. court below did not follow the above principle. It is next contended by Mr. Duta that it is also one of the well established principles of law that no amendment should be allowed the effect of which would be to take away from the defendant a legal right which has accrued to her by lapse of time and that by allowing this amendent, the court below did not also follow this principle. It is submitted that under Section 25 of the Special Marriage Act, a marriage which falls within the purview of clauses (i), (ii) and (iii) of the Section shall be voidable and may be annulled by a decree of nullity. The two provisos of the section prescribe periods of limitation for instituting proceedings for the cases specified in clauses (ii) and (iii) respectively but does not prescribe any period of limitation for the case specified in clause (i). By the amendment, the plaintiff opposite party incorporated the alternative relief of annulment of the marriage by a decree of nullity on the ground specified in clause (i) of Section 25. Accordingly, it is argued that sub-section (2) of section 29 of the Limitation Act would be attracted here and the case under Section 25 (i) of the Special Marriage Act would be governed by the provisions of the Limitation Act and that the said case was already barred by limitation by reason of which a right which had already accrued to the respondent petitioner was sought to be taken away by the amendment in question. In support of his contention that a proceeding u/s 25 ( i ) of the Special Marriage Act would be governed by the general law of limitation as provided in Limitation Act, reliance was placed by Mr. Dutta on a Division Bench decision reported in AIR1988 Calcuta 28 : Sipra Dey v. Ajit Kr. Dey. For the reasons aforesaid, it is contended on behalf of the revisionist that the court below committed a jurisdictional error in allowing the amendment and as such, the impugned orders are liable to be set aside.