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Judgment
Tarun Agarwala, J.—Heard Shri T.A. Khan, the learned Counsel for the Petitioner and Shri Akhil Kumar Sah, the learned Counsel for the Respondent.
In proceedings for divorce, the Defendant filed an amendment application for amendment of her written statement which was allowed by the court below. Based on the said amendment being allowed, the Plaintiff filed an application 33-C praying that he may be permitted to file the replica as well as the affidavit accompanying the replica 36-C. This application was objected by the Defendant. The trial court, after considering the submission of the parties, rejected the application 33-C by an order dated 9th April, 2010 on the ground that there is no provision under Order 8 Rule 9 of the CPC for filing replication.
The Plaintiff, thereafter, filed an application 35-C praying that he may be permitted to file an additional affidavit in addition to the affidavit filed in examination-in-chief, since the Defendant had come out with a new fact in the written statement which was allowed by an earlier order of the Court. This application was also resisted by the Defendant. The court, after considering the matter, allowed the application 35-C by an order dated 24th April, 2010. Curiously, while allowing the said application, the court directed that the earlier affidavit filed by the Plaintiff would be treated as an additional affidavit in addition to the affidavit filed by him in examination-in-chief, i.e. affidavit No. 21-A.
Based on the said order, the Plaintiff filed an application dated 06/05/2010 numbering 45-C praying that he should be permitted to file the affidavit 46-A as additional affidavit in examination-in-chief. At the stage of filing this affidavit, it was pointed out by the office that the Plaintiff�s earlier affidavit 36-C which was in support to the replica has already been treated as an additional affidavit in addition to the affidavit 21-A in the examination-in-chief. Accordingly, seeing the mistake committed by the Court, the Plaintiff filed an application 47-C u/s 151 of the CPC praying that the affidavit 36-C should be discarded and affidavit 46-A should be taken on record and should be treated as additional affidavit in examination-in-chief. The aforesaid applications No. 45-C and 47-C was rejected by the Court by an order dated 26th May, 2010. Since all doors stood closed for the Plaintiff, he accordingly filed an amendment application 53-A praying for amendment of his plaint to bring the additional fact on record. This application was rejected by an order dated 25th June, 2010 alongwith cost of Rs. 1,000/-. The Plaintiff, being aggrieved by the aforesaid orders, has filed the present writ petition for a direction under Article 227 of the Constitution of India.
Having heard the learned Counsel for the parties and having perused the impugned orders, the court finds that the court below has committed a manifest error in closing the doors of the Plaintiff. Rules of procedures are handmaid of justice and an effort should be made by the Court to ensure that party are allowed to take all kinds of stand and that the pleadings sought to be raised should not be struck off on technicalities.
In the present case, the Court finds that the controversy started when additional facts were sought to be brought on record by the Defendant in her written statement. The amendment in the written statement was allowed by the trial court. The Plaintiff, thereafter, sought leave of the Court to file the replica which was rejected by an order dated 9th April, 2010. In my opinion, there is no provision under the CPC to file the replica to the written statement and, consequently, the Court below was justified in rejecting the application 33-C by an order dated 9th April, 2010. The court finds that replica cannot be taken on record under Order 8 Rule 9 of the CPC since the Defendant did not bring about a counter claim in her amendment application.
Having rejected the application 33-C, the affidavit 36-C accompanying the said application was automatically rejected and, consequently, there was no occasion for the Court below to take that affidavit 36-C as an additional affidavit of the Plaintiff in examination-in-chief while allowing the application of the Plaintiff 35-C by an order of the court dated 24th April, 2010. When this anomaly was found out by the Plaintiff, he rightly moved the application 47-C u/s 151 Code of Civil Procedure. The Court below should have allowed this application and should have rectified its order instead of rejecting it by an order dated 26th May, 2010. The court finds that affidavit 36-C which was an affidavit in support of the replica could not be made an additional affidavit of the Plaintiff as an affidavit in examination-in-chief. It is the Plaintiff�s prerogative to file an affidavit of his choice under Order 18 Rule 4 of the CPC and is not the choice of the Court. Consequently, the court finds that the order of 26th May, 2010 rejecting the application 45-C and 47-C was patently erroneous.
In view of the aforesaid, the Court further finds that the amendment application 53-A was again wrongly rejected by the court below. As stated earlier, the parties should be permitted to bring on record all pleadings in support of their case and a liberal approach should have been adopted by the trial court. Consequently, the order dated 25th June, 2010 rejecting the amendment application is incorrect.
In view of the aforesaid, the writ petition is partly allowed. The order dated 26th May, 2010, 25th June, 2010 and 24th April, 2010 are quashed. The application 35-C for filing additional affidavit under Order 18 Rule 4 of the CPC is allowed. The affidavit 46-A dated 06/05/2010 is directed to be taken on record as evidence in examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure. The amendment application 53-A is also allowed subject to payment of cost of Rs. 1,000/- which shall be deposited by the Petitioner before the trial court within three weeks from today. Necessary amendment in the plaint shall also be carried out within the same period. The amount of cost so deposited by the Plaintiff can be withdrawn by the opposite party without furnishing any security. In the circumstances, parties shall bear their own cost. Certified copy of the order shall be made available to the parties on payment of usual charges within three days.