1. This application is at the instance of the wife/petitioner herein and is directed against the order no.33 dated November 3, 2008 passed by the learned Additional District Judge, Second Court, Burdwan in Matrimonial Suit No.37 of 2007 thereby allowing an application under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff.
2. The short fact is that the plaintiff/opposite party herein instituted a matrimonial suit being Mat. Suit No.2525 of 2006 against the petitioner herein under Section 11 of the Hindu Marriage Act before the Family Court at Chennai. Thereafter, the petitioner filed an application under Section 25 of the Code of Civil Procedure before the Honble Supreme Court praying, inter alia, for transfer of the said suit from the Family Court at Chennai to the Court of District Judge, Burdwan. That application was allowed resulting in transfer of the said suit from the Family Court at Chennai to the Court of the learned Additional District Judge, Second Court, Burdwan and the suit was renumbered as Matrimonial Suit No.37 of 2007. The suit has now become a regular suit and it has to be proceeded with in accordance with the provisions of the Code of Civil Procedure. For that reason, the husband/opposite party herein filed an application for amendment of the plaint giving details of the facts already narrated in the matrimonial proceeding before the Family Court at Chennai. Such detailed facts are necessary for proper adjudication of the matter in dispute between the parties pending before the learned Additional District Judge, Burdwan. That application for amendment of the plaint was allowed on contest. Being aggrieved, this application has been preferred by the wife.
3. Mr. Bhattacharya, learned Advocate appearing on behalf of the petitioner, submits that husband/opposite party herein has not only wanted to incorporate many facts but has also wanted to withdraw the admission made by him in the earlier plaint and for that reason, the application for amendment of the plaint should have been rejected by the learned Trial Judge.
4. On the other hand, Mr. Chatterjee, learned Advocate appearing on behalf of the opposite party, submits that no admission has been withdrawn by the proposed amendment, rather such prayer for amendment of the plaint is necessary because now the said matrimonial suit has become a regular suit. The Family Court was to decide the matrimonial suit in a summary way and for that reason, detailed facts were not, at all, necessary. But after transfer of the said matrimonial suit from the Family Court at Chennai to a regular Court at Burdwan, the detailed facts are necessary for proper adjudication. Thus, Mr. Chatterjee has supported the impugned order.
5. Therefore, the point that arises for decision is whether the impugned order should be sustained.
6. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the husband/opposite party herein has instituted the said suit under Section 11 of the Hindu Marriage Act contending, inter alia, that the marriage between the parties held on March 2, 2005 is null and void owing to the fact that the respondent/petitioner has a spouse. That suit was pending for adjudication before the Family Court at Chennai. Generally, the Family Court deals with such applications in a summary way and the lawyers are not permitted to be engaged in the said matter unless the Court directs otherwise. So, in that case, the detailed facts may not be necessary. Whenever the suit has been transferred from the Family Court at Chennai to the learned Additional District Judge, Burdwan, the matter has become a suit to be conducted by lawyers. The detailed facts are necessary for proper adjudication of the matter in dispute. The examination-in-chief and the cross-examination may be done in details relating to the allegations raised in the plaint as well as in the written statement. For that reason, detailed facts have been narrated by the proposed amendment. Therefore, the proposed amendment is an elaboration of the matter in dispute for proper elucidation.
7. As regards the withdrawal of admission Mr. Bhattacharya has referred to deletion of the date of August 29, 2006 from the plaint as stated in paragraph no.8. On perusal of that paragraph, it appears that Mr. Bhattacharya has referred to the cause of action to file the suit at Chennai. the husband/opposite party herein has stated that the cause of action arose on March 2, 2005 when the parties got married, on August 28, 2006 and then on August 29, 2006 when the husband/opposite party herein came to know the previous marriage held between the respondent and one Sujit Das and them on some dates. The husband/petitioner has wanted to incorporate the fact by the amendment that on the night of August 27, 2006, he came to know from the conversation of the petitioner with one unknown person over phone about the earlier marriage and not on August 29, 2006. The mere change of date, I hold, cannot be described as withdrawal of admission. Anyway, the cause of action is a bundle of facts and the respondent/petitioner has stated several facts including the information received on the night of August 27, 2006. Under the circumstances by the proposed amendment, it cannot be stated that the husband/petitioner has wanted to withdraw the admission; but he has wanted to state in details about the facts so that the evidence may be adduced before the learned Trial Judge over the facts which he intends to prove. This being the position, I am of the view that the learned Trial Judge has rightly allowed the application for amendment of plaint and there is nothing to interfere with the impugned order. The impugned order does not suffer from any irregularity. The learned Trial Judge has not exceeded his jurisdiction in allowing the amendment. At the time of allowing the application for amendment of the plaint, the learned Trial Judge has awarded costs of Rs.500/-. Therefore, the impugned order cannot be said to be unjustified. So this application fails to succeed. It is, therefore, dismissed.
8. However, since the suit is an old one, the learned Trial Judge shall direct the wife to file an additional written statement, if any, within three weeks from the date of communication of this order and thereafter, he shall proceed with the suit so as to ensure disposal of the same within a period of six months from the date of framing of issues.
9. Considering the circumstances, there will be no order as to costs.
10. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.