Judgment:
S.U. Khan, J.
1. Heard learned Counsel for the parties.
2. Petitioner-husband has instituted a suit against wife-respondent No. 3, Smt. Sarita Devi and four others, which has been registered as Original Suit No. 301 of 1995 on the file of Civil Judge, Senior Division, Deoria. Initially, the suit was for restitution of conjugal rights. Thereafter, an application for amendment of the plaint was filed by the plaintiff-petitioner on 27.3.1998, copy of which is Annexure-8 to the writ petition. Paragraphs No. 7A and 10A sought to be added in the plaint through the said amendment application stated that since 1.10.1995 till the date of filing of the said amendment application, the wife-defendant No. 1 had withdrawn herself from the society of the plaintiff-husband. In Paragraph 7B proposed to be added in the plaint, it was stated that the wife-defendant No. 1 in her written statement levelled false, scandalous and frivolous allegations against the plaintiff and plaintiffs father, brother and sister, which amounted to mental cruelty and in view of that, it was impossible to continue the relationship of husband and wife between the plaintiff and defendant No. 1. In the prayer clause, it was sought to be added that in the alternative decree for divorce be passed. The said amendment application was allowed on 16.9.1998.
3. Thereafter, wife Smt. Sarita Devi filed an application for maintenance against husband-petitioner under Section 125. Cr. P.C. on 12.4.1999, copy of which is Annexure-10 to the writ petition. The said application prompted the petitioner-husband to file another application for amendment in the plaint, copy of which is Annexure-11 to the writ petition. The main prayer in the second amendment application was for deletion of relief of restitution of conjugal rights. Relief for deleting the relatives of the wife from the array of the defendants was also sought. Ornamentally, two new paragraphs Nos. as 7 (sa) and 7 (da) were also sought to be added in the plaint, which related to allegations in written statement and reply (jawab dehi). It was stated in the said paragraphs that false allegations were levelled in the written statement and jawab dehi and in view of that, it was impossible for the plaintiff to live with the defendant No. 1 and plaintiff feared his mental and physical health and plaintiff feared that wife defendant No. 1 could cause him social, physical or mental harm at any time, hence decree of divorce was essential end in the interest of Justice.
4. The second amendment application dated 28.4.2000 was rejected by Civil Judge, Senior Division, Deoria on 19.10.2000. Against the said order, civil revision was filed in 2001, which was dismissed on 23.1.2001 by District Judge, Deoria. In the certified copy, number of revision is not given. Through this writ petition, orders rejecting the second amendment application have been challenged.
5. The main reason given by the courts below for rejecting the second amendment application is that as in the original plaint only relief of restitution of conjugal rights was prayed, hence that relief could not altogether be given up by the plaintiff and if such prayer is accepted, then altogether new plaint will come into existence, which will not have any relation with the original plaint.
6. In my opinion, the view taken by the courts below is patently erroneous in law. Alternative prayer for divorce had already been permitted to be added in the plaint. A plaintiff is always at liberty to give up any relief including alternative relief. The plaint, as it stood after first amendment application was allowed, contained two alternative reliefs, one for restitution of conjugal rights and the other for divorce. Plaintiff was at complete liberty to give up any of the two reliefs. Similarly, plaintiff's prayer, for deleting the names of relatives of wife from the array of the parties, could also not be rejected. It is sole discretion of the plaintiff to choose his defendants. As the plea of restitution of conjugal rights had been sought to be deleted, hence there was no sense in retaining the relatives of wife as defendants. As far as plea of divorce is concerned, relatives of wife have got absolutely no concern therewith.
7. As far as addition of the two paragraphs, relating to nature, implication and value of allegations made in the written statement, are concerned, they were extremely formal in nature. Almost similar amendment had already been allowed and paragraph 7 (ba) had been permitted to be added. The two new paragraphs sought to be added through second amendment application were only in the nature of further and better particulars of plea of cruelty.
8. Accordingly, in my opinion amendment application was wrongly rejected.
9. No stay order was granted in this writ petition, hence proceedings of the suit continued. At the time of arguments, learned Counsel for both the parties stated that evidences of both the parties had been concluded and arguments were continuing in the suit. Learned Counsel for the plaintiff categorically stated that if second amendment application of the plaintiff was allowed, then plaintiff did not propose to adduce any additional evidence and he would argue the case only on the basis of evidence, which has been already adduced.
10. Accordingly, writ petition is allowed on payment of Rs. 2,000 as costs. The cost shall be paid on 21.5.2007, on which date the parties shall appear before court below. The court below shall make all efforts to conclude the arguments latest by 21.7.2007. Both the impugned orders are set aside. Second amendment application of the plaintiff dated 28.4.2000 is allowed. However, it is directed that plaintiff shall not be permitted to adduce any additional/ further evidence.
11. If costs are not paid on the aforesaid date, then writ petition shall be deemed to have been dismissed.
12. Writ petition accordingly allowed as above.