C.M. (M) No. 820/2004:

1. By way of the present petition the petitioner assails the order dated 17th May, 2004 passed by the learned Additional District Judge whereby the application filed by the petitioner under Order 6 Rule 17, CPC was dismissed.

2. A petition under Section 12 of the Hindu Marriage Act by the petitioner for annulment of marriage on the ground of fraud on account of concealment of material information. The petitioner was married to the respondent according to Hindu rites on 18th July, 1996.

3. The respondent filed the written statement and contested the claim of the petitioner. After completion of pleadings following issues were framed on 22nd May, 1998 by the Trial Court:

(a) Whether the consent of the petitioner to marriage between the parties was obtained by fraud as alleged and the onus of OPP

(b) Whether the petitioner is entitled to decree annulment OPP

(c) Relief

4. The petitioner moved an application for amendment of the plaint alleging that there was concealment with regard to the date of birth of the respondent. It is stated that the date of birth of the respondent was 23rd September, 1969 whereas at the time of marriage it was disclosed to be as 22nd September, 1971. The respondent filed reply to the said application and along with the same attached a certificate issued by the Council of Indian School of Examination showing the date of birth of the respondent as 22nd September, 1971. It is stated by the petitioner that as at that time he had no evidence to support his claim, he sought leave of the Trial Court to withdraw the application. Vide order dated 1st December, 1998 the Trial Court dismissed the application as withdrawn and imposed costs of Rs. 500/-. On the same date i.e. 1st December, 1998 another application under Order 6 Rule 17, CPC was filed by the petitioner stating that he made inquiries and it was revealed that the actual date of birth of the respondent was 23rd September, 1969 and not 22nd September, 1971 as claimed by the respondent on the basis of the aforesaid certificate. Along with the application the petitioner has filed birth certificate issued by the Registrar of Birth and Death, Dehradun. The Trial Court vide order dated 22nd February, 1999 dismissed the said application on the ground that it was barred by res judicata.

5. The petitioner challenged the said order before this Court in Civil Revision No. 353/99. This Court vide order dated 18th January, 2000 allowed the Revision Petition and remanded the matter back to the Trial Court holding that the second application was maintainable.

6. The Trial Court, vide the impugned order, dismissed the application of the petitioner for amendment by holding that the amendment is not honest; the petitioner was changing his position in view of the facts being brought on record by the respondent and the amendment cannot be allowed to plug the loopholes in the case of the petitioner. It was further held that if the amendments were allowed the same should change the nature of the proceedings.

7. I have heard Counsel for the parties and perused the documents on record.

8. Rule 17 of Order 6 of the Code of Civil Procedure reads as under:

17. Amendment of pleadings.The Court may at any stage of the proceedings allowed either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

9. It is settled law that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action. The proposed amendments should not cause such prejudice, to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. Hypertechnical approach should not be adopted and instead a liberal approach should be the general rule. A prayer for amendment can be rejected if the same is not bona fide.

10. The case of the petitioner before the Trial Court was based on misrepresentation and fraud. By placing the fact about the concealment of her correct date of birth, the petitioner is not putting up a new case. The fact about the date of birth of the respondent prima facie appears to go to the root of the matter and since the pleadings in the instant case were at the initial stage, the amendment, to my mind, ought to have been permitted. The amendment would not have caused any serious prejudice to the respondent and it would have helped the parties to adjudicate the real controversies between them. The amendments cannot be refused merely on any technical ground. Since the case of the petitioner is based on fraud and misrepresentation, one limb of which pertains to the age of the respondent and there is nothing new in nature. The amendment sought by the petitioner would be necessitated due to recovery of a documentary evidence regarding the correct date of birth of the respondent.

11. In the facts and circumstances of the present case and the settled position of law, to my mind, the amendment is necessary for the purpose of determining the real questions in controversy and would not cause any prejudice to the respondent if the same is allowed. The proposed amendment would not change the cause of action nor the nature of the ground on which the annulment was sought by the petitioner. By dismissing the application, the Trial Court has failed to exercise jurisdiction vested in it.

12. Amendment is a discretionary matter and although amendment at a late stage is not to be granted as a matter of course, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed can be compensated by cost or otherwise. The general rule is that the party should not be allowed to set up a new case or cause of action. An error or mistake if not fraudulent should not be made a ground for rejecting the application for amendment of the plaint. Defective pleadings can be permitted to be cured subject to payment of costs.

13. Subsequent developments and altered circumstances are relevant in adjudging the nature and character of the claim made, at all stages of the proceedings and the Court should permit amendment bringing such subsequent developments and altered circumstances on the record. Evidence is in the present case is still to be led. Moreover, the amendment has been necessitated because the petitioner has come to know the fact that the respondent had concealed her correct date of birth. The petitioner was collecting material and procuring documents to support his averment in the plaint. It is in this background that the application was moved. The issue of date of birth goes to the root of the matter. The amendment sought is necessary for the purpose of determining the real question in controversy between the parties.

14. In light of the aforesaid discussion, the petition is allowed with costs which are quantified at Rs. 3500/-. The impugned order is set aside.