The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2024 18:19:27 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 8199 OF 2022 Swagat Lenka …. Petitioner Mr. Dwarika Prasad Mohanty, Advocate -versus- Subhra Rajajyoti Mohapatra @ Lenka …. Opp. Party
Legal Reasoning
Mr. Shib Shankar Mohanty, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. 4. 1.
Decision
ORDER 27.03.2024 This matter is taken up through hybrid mode. 2. Order dated 24th December, 2021 (Annexure-6) passed by learned Judge, Family Court, Balasore in C.P. No.693 of 2017 is under challenge in this writ petition, whereby a petition filed by the Petitioner under Order VI Rule 17 CPC for amendment of the petition filed under Section 13(1) of the Hindu Marriage Act, 1955 (for brevity ‘the Act’), has been rejected. 3. Mr. Mohanty, learned counsel for the Petitioner vehemently argued that the amendments sought to be introduced are subsequent events to the filing of the petition under Section 13(1) of the Act by the Petitioner. On a bare perusal of the proposed amendment, it would disclose that due to act of Opposite Party by publishing the news item with photographs in a newspaper as well as getting the family members arrested caused mental cruelty and harassment to the Petitioner and to his family members. Since the application filed under Section 13(1) of the Act is based on ‘cruelty’, the proposed amendments are additional grounds to be taken in the petition for just Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2024 18:19:27 // 2 // adjudication of the civil proceeding. Learned Judge, Family Court holding that a previous application of similar nature was rejected and the amendment sought for if allowed, would amount to introduction of day to day events to the pleadings of the Petitioner and will not end the litigation, rejected the petition for amendment. 4. Although a petition for amendment was rejected earlier, the said application was on a different plea. As such, there is no bar under law to consider a subsequent application for amendment seeking introduction of events happened during pendency of the civil proceeding. He, therefore, prays for setting aside the impugned order under Annexure-6 and to allow the proposed amendment. 5. Mr. Mohanty, learned counsel for the Opposite Party vehemently objects to the same and contends that incident alleged to be introduced by way of amendment happened prior to the date of filing of previous application under Order VI Rule 17 CPC. The Petitioner could have raised the proposed amendment in the previous application. That having not been raised, the principle of constructive res judicata applies to this case. He further submits that there is nothing on record to suggest that the amendments sought for are necessary for proper adjudication of the civil proceeding. Only because certain incidents occurred during pendency of the civil proceeding, the same should not be a ground to accept the prayer for amendment. He, therefore, prays for dismissal of the writ petition. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2024 18:19:27 // 3 // 6. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it is not disputed that the Petitioner had earlier filed an application for amendment of the civil proceeding, which was dismissed vide order dated 3rd December, 2019 by learned Judge, Family Court, Balasore. Assailing the same, the Petitioner filed W.P.(C) No.11803 of 2021, which was also dismissed vide order dated 22nd July, 2021 under Annexure-3. It is also not disputed that the incidents proposed to be introduced by way of amendment had happened prior to the date of filing of previous application for amendment. Thus, the Petitioner could have sought for introduction of the proposed amendment of the pleading in the previously instituted petition for amendment. 7. On perusal of the proposed amendment under Annexure- 4, it appears that the Petitioner describing certain incidents happened during pendency of civil proceeding, stated that the same caused serious mental cruelty and harassment to the Petitioner and his family members. Every incident happened during pendency of civil proceeding and every alleged action of cruelty cannot be a ground to be introduced by way of amendment in an application under Section 13(1) of the Act. The Petitioner has to disclose as to how the alleged cruelty or harassment is a ground to be introduced for proper adjudication of the petition filed for dissolution of marriage by a decree of divorce. No such ground has been made out. The Petitioner by proposed amendment sought to introduce certain incidents without explaining as to how the same are necessary for just adjudication of the civil proceeding. It further appears that the Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Mar-2024 18:19:27 // 4 // Petitioner has not stated in the petition under Section 13(1) of the Act or in the petition for amendment that the cause of action to seek for relief of divorce occurred on the date(s) when the incidents were alleged to have occurred. 8. In view of the above, this Court is of the considered opinion that when the Petitioner had an occasion to seek for introduction of proposed amendment in the previous application for amendment and that no ground is made out that the incident sought to be introduced are necessary for proper adjudication of the civil proceeding, I am not inclined to interfere with the impugned order under Annexure-6. 9. Accordingly, the writ petition being devoid of any merit stands dismissed. 10. Since the civil proceeding is of the year, 2017, parties are directed to cooperate with learned Judge, Family Court, Balasore for early disposal of the same. If any of the parties does not cooperate for early disposal of the civil proceeding, learned Judge, Family Court may take coercive action in accordance with law. 11. Interim order dated 21st April, 2022 passed in I.A. No.4244 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4