Rajan Vinayak Lotlikar vs Smita Rajan Lotlikar

U.V. Bakre, J.—Heard Mr. Lotlikar, learned Senior Counsel appearing on behalf of the petitioner and Mr. Usgaonkar, learned Counsel appearing on behalf of the respondent.

Rule. Rule made returnable and heard forthwith.

By this petition, the petitioner has prayed for quashing and setting aside the order dated 02/03/2013 passed by the learned Ad hoc District Judge-2, FTC-II, Margao (First Appellate Court, for short) on an application for amendment of the plaint filed by the petitioner herein in Regular Civil Appeal No. 144 of 2012.

The petitioner had filed the Matrimonial Petition No. 9/2010, against his wife, the respondent, for divorce on the grounds of ill-treatment and complete abandonment of the conjugal domicile under clauses (4) and (5) of Article 4 of the Law of divorce as applicable to the State of Goa and the said petition was dismissed by the learned Civil Judge, Senior Division at Vasco by Judgment, Order and Decree dated 13/08/2012. Against the said judgment and decree dated 13/08/2012, the petitioner preferred the First Appeal which came to be registered as Civil Appeal no. 144 of 2012. In the said First Appeal, the petitioner moved an application dated 06/02/2013 for amendment of the original matrimonial petition for incorporation of additional ground of divorce under Article 4(8) of the Law of Divorce, as applicable to the State of Goa, that ground being ''the de facto separation, freely consented, for ten consecutive years irrespective of the cause of the separation''. The respondent resisted the said application vide her reply dated 25/02/2013 alleging that the said new ground for divorce was based on new cause of action and if allowed that would change the nature of the suit and would cause grave and irreparable loss to the respondent.

The First Appellate Court vide Order dated 02/03/2013 dismissed the said application for amendment thereby holding that the original petition was filed only on two grounds namely ill-treatment and complete abandonment and that the trial Court, after dealing with each ground concluded that it was not proved that the respondent abandoned the marital domicile and on the contrary that the petitioner was voluntarily staying away from the respondent and the matrimonial domicile. The First Appellate Court further held that the proposed amendment would change the nature of the suit and would also cause grave and irreparable loss to the respondent and is not necessary for effectively deciding the controversy between the parties. He further held that the amendment seeks to introduce an entirely new ground for seeking dissolution of marriage on a new cause of action, which is not available to the appellant, which runs counter to the case set up before the trial Court.

Upon consideration of the submissions made by the learned Counsel for the parties before this Court, I am of the view that the impugned Order is contrary to the settled law relating to amendment of pleadings based on the subsequent events. It cannot be disputed that the cause of action as also the right to plead the additional ground of divorce under Article 4(8) of the Law of Divorce, as applicable to the State of Goa i.e. ''the de facto separation, freely consented, for ten consecutive years'' had accrued to the petitioner when the Regular Civil Appeal No. 144 of 2012 was pending before the First Appellate Court. There is no dispute that the said First Appeal was in the nature of continuation of the original suit. Admittedly, the original suit was for divorce on certain grounds and during the pendency of the First Appeal the additional ground arose. In such circumstances, it cannot be said that the proposed amendment would change the nature of the suit for divorce. As rightly contended by the learned Senior Counsel appearing on behalf of the petitioner that the initial cause of action for raising the ground had arisen in the year 2003 and the said cause of action was completed only in the beginning of the month of February, 2013 i.e. during the pendency of the Regular Civil Appeal No. 144 of 2012. In any case, nothing could have prevented the petitioner from filing fresh petition for divorce on the said additional ground. However, driving the petitioner to file fresh suit would subject both the parties to face and under go another round of litigation.

Mr. Lotlikar, learned Senior Counsel appearing on behalf of the petitioner submitted that evidence regarding the additional ground has been already adduced by the petitioner and that the petitioner undertakes not to lead any further evidence on the said additional ground. In the circumstances above, no prejudice would be caused to the respondent since the respondent can very well file additional written statement and if desired can also be permitted to lead further evidence. In the circumstances above, the impugned Order is not sustainable and can be termed as arbitrary and illegal which is bound to be quash and set aside.

In the result, the petition is allowed.

(a) The impugned order dated 02/03/2013 passed by the First Appellate Court on the application for amendment of the Matrimonial Petition No. 9/2010 is quashed and set aside.

(b) The said application, dated 06/02/2013, for amendment is allowed. Consequently, the petitioner shall be permitted to carry out the said amendment to the petition.

(c) The statement made by the learned senior Counsel appearing on behalf of the petitioner that the petitioner shall not lead any further evidence is accepted.

(d) The respondent shall be permitted to file additional written statement, if any, and if desired shall also be permitted to lead further evidence in respect of the said amended petition.

(e) Rule made absolute in the aforesaid terms.

The Petition stands disposed of, accordingly, with no order as to costs.