MISRA Vs. ALI MOHD JAN

JUDGEMENT

(1.) THE parties are husband and wife. The wife has sued the husband for dissolution of marriage in the court of 1st Additional Munsiff, Srinagar. One of the grounds taken by her in the plaint is that the husband has been accusing her of leading an adulterous life. In paragraph 11 and 12 of the written statement, the defendant alleged that the plaintiff wants to rid herself of the marriage -bond with the defendant so that she may be able to carry on romance with her friends, Qayoom Khan adding that on 19. 7. 1977 she was found moving with Qayoon Khan by his father who informed the police and subsequently the police restored the custody of the plaintiff to the defendant but did not pursue the case of unknown reasons. He has further added that Qayoom Khan has no relationship with the plaintiff but still he is on visiting terms with the plaintiff. The defendant asked for amendment of the written statement so as to enable him to delete these paragraphs. The trial court has allowed the amendment.

(2.) THE argument of the learned counsel for the petitioner is that the trial court his landed itself into error in allowing the amendment. He contended that the allegations in paragraphs 11 and 12 operated as an admission of the ground taken in plaint that the defendant had accused the plaintiff of leading an adulterous life and that, if that by so, the court could not justifiably allow the deletion. In support of his argument, he placed reliance on the judgment of Supreme Court in M/s Modi spinning & Weaving Mills Co Ltd and anr v. M/s Ladha Ram and Co: (AIR 1977 SC 680). In that case it was held that in amendment seeking to displace the plaintiff completely from admissions made by defendant in written statement cannot be allowed.

(3.) IN the present case it can hardly be disputed that the allegations in paragraph 11 and 12 constituted an implied admission of the allegations made in the plaint that the plaintiff was leading an adulterous life. On the principle laid down by the Supreme Court, the amendment could not obviously be allowed to enable the defendant to get rid of these allegations in the written statement. The impugned order is, therefore, not sustainable in law. Allowing this revision petition, I set aside the order. The parties are directed to appear in the lower court on 22. 8. 1980.