Gurdev Kaur vs Mal Singh and others

S.S. Sodhi, J.

Amendment of the written statement, in appeal, is the matter is controversy in revision here.

The contest in the suit is between the brothers of Zora Singh, who died issueless, and the petitionerGurdev Kaur, who claims to be his widow. According to the plaintiffs, who are the brothers of the said Zora Singh, the petitionerGurdev Kaur was the wife of one Gurdev Singh and she was thus not entitled to succeed to the property of Zora Singh. In the return, filed by Gurdev Kaur, she described the averments in the plaint to be incorrect and put forth the plea that she was the legally wedded wife of Zora Singh. During the trial, the decree for restitution of conjugal rights granted to Gurdev Kaur against her husband Gurdev Singh, Exhibit P2, was brought on record. The other document which deserves note is Exhibit P3, the copy of the order passed under Section 488 of the Code of Criminal Procedure awarding Gurdev Kaur maintenance against her husband Gurdev Singh. This order is of March 15, 1963.

When the matter came up in appeal before the lower appellate Court, an application for amendment of the written statement was filed by Gurdev Kaur to take up the plea that her earlier marriage with Gurdev Singh had been dissolved by a decree of divorce and it was thereafter that she had married Zora Singh and she was thus his legally wedded wife. It is this amendment which has been disallowed by the lower appellate Court and hence this challenge in revision.

In dealing with this matter, it deserves note that there is also pending before the lower appellate Court an application under Order 41 Rule 27 of the Code of Civil Procedure for abducting additional evidence. This additional evidence being the decree for divorce obtained by Gurdev Kaur against her first husband Gurdev Singh on June 5, 1987. It is stated that no decision has yet been taken on this application.

The law is no doubt wellsettled that amendment of pleadings at the appellate stage cannot be sought as a matter of right. Not only delay, but the additional fact that amendment is being sought after a decree has been already granted, is the further restraining factor, with regard to the jurisdiction of the Court to allow amendment at the appellate stage, but, as held in delay, Ram Kaur v. Ajaib Singh, AIR 1984 Pb. and Hry. 292, if the Court finds that the proposed amendment is necessary for the determination of the real controversy between the parties, the amendment may be allowed even at the appellate stage.

Here, it will be seen that the plaintiffs had to put forth a specific plea in the plaint to the effect that Gurdev Kaur was not the legally wedded wife of Zora Singh as she had earlier been married to Gurdev Singh. This averment was denied and it was asserted in the written statement that she was the wife of Zora Singh. Besides this, as mentioned earlier, documentary evidence has also come on record with regard to matrimonial proceedings between Gurdev Kaur and Gurdev Singh. It will be seen, therefore, that the crucial and important question which arises for determination in the suit is with regard to the status of the earlier marriage between Gurdev Kaur and Gurdev Singh. This in fact constitutes the real controversy between the parties. This being so, interests of justice render it incumbent that the amendment, prayed for, must be allowed.

The petitioner is consequently allowed to amend her written statement as prayed. Considering, however, the fact that this amendment has been sought at a belated stage, namely, before the appellate Court, the amendment is allowed subject to payment of Rs. 1,000/ as costs.