Dr. A.K. Rath, J.—Assailing the order dated 11.1.2008 passed by the learned Adhoc Additional District Judge, F.T.C. No.IV, Cuttack in R.F.A. No.1 of 2006, the present petition is filed under Article 227 of the Constitution of India. By the said order, learned lower appellate court allowed the application for amendment of the plaint.
2. Sans details the short facts of the case are that the opposite party as plaintiff instituted T.S. No.516/1984 in the court of the learned Sub-Judge, 1st Court, Cuttack for declaration of right,title and interest and possession impleading the present petitioner and eleven others as defendants, which was subsequently transferred to the court of the learned 2nd Additional Civil Judge (S.D.), Cuttack,. In paragraph 8 of the plaint, it is averred that the defendant no.2 was divorced by her husband-Khalliquiddin on 8.8.83. The said date has been mentioned as cause of action in paragraph 12 of the plaint. During pendency of the suit, the plaintiff filed an application for amendment of the plaint. The same was allowed, where after the amended plaint was filed. In paragraph 8 of the amended plaint, the date has been changed from 8.8.83 to 3.8.83. Be it noted that the plaintiff has not sought for amendment of the date of divorce of defendant no.2. The suit was dismissed. Challenging the judgment and decree, the plaintiff filed an appeal being R.F.A. No.1 of 2006 in the court of the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned Adhoc Additional District Judge, F.T.C. No.IV, Cuttack. In course of hearing of the appeal, the plaintiff filed an application under Order 6, Rule 17 C.P.C. to amend the plaint seeking to delete the date of divorce of defendant no.2 from 8.8.83 to 3.8.83. The contesting defendant filed an objection to the same.
3. Learned lower appellate court came to hold that the date of divorce of defendant no.2 by her husband has been mentioned as 8.8.1983 in the original plaint. A couple of time during pendency of the suit, the plaintiff has never sought for amendment of the date. It is further held that the plaintiff in the amended plaint as well as in the evidence on affidavit indicated the date as 3.3.08. There is no specific denial in the written statement filed by the defendants, nor any question was put to the plaintiff during his cross-examination. The defendant no.1 raised the same issue at the time of filing of the written note of argument for the first time. Had the same point been raised, the plaintiff would have got an opportunity to answer the same. Further the date "3.8.1983" has already been acted upon by the parties as well as by the learned trial court. The amendment sought for neither alters the very foundation of the claim, nor introduces a distinct and separate cause of action. Having held so, the learned lower appellate court allowed the application for amendment.
4. Heard Mr. B. Pattnaik, learned counsel for the petitioner and Mr. S.C. Samantaray, learned counsel for the opposite party.
5. Mr. Pattnaik, learned counsel for the petitioner submits that though the plaintiff has not filed the application for amendment of the date of divorce of defendant no.2 from 8.8.1983 to 3.8.1983, but in the amended plaint the date has been surreptitiously changed to 3.8.1983. When the appeal was taken up for hearing, the plaintiff filed an application for amendment. The proposed amendment will change the nature and character of the suit.
6. Per contra, Mr. Samantaray, learned counsel for the opposite party supports the order of the learned lower appellate court. He submits that the plaintiff had instructed his counsel that the date of divorce was 3.8.1983, but due to typographical mistake, the same has been typed as 8.8.1983. In the amended plaint as well as evidence on affidavit the date has been correctly mentioned. The proposed amendment is formal in nature. The foundational facts already exist. Thus, the proposed amendment will not change the nature and character of the suit.
7. The pleading, once filed, is a part of the record of the Court, and cannot be touched, modified, substituted, amended or withdrawn except by leave of the Court. It is admitted by Mr. Samantaray, learned counsel, that the plaintiff has not filed the application for amendment of the date of divorce of defendant no.2 from 8.8.1983 to 3.8.1983. Thus, the said date cannot be changed while filing the amended plaint after the application for amendment was allowed. Merely because, the date has been mentioned as 3.8.1983 in the amended plaint and affidavit of the plaintiff, the same per se is no ground to allow the amendment of plaint at the appellate stage.
8. The proposed amendment is not bona fide. With a mala fide intention, to get over the judgment and decree, the same has been filed at the appellate stage. The person, who approaches the court with a pair of unclean hands, is not entitled to any discretionary relief. The proposed amendment, if allowed, will change the fundamental nature and character of the suit. The same will cause serious prejudice to the defendant. Learned lower appellate court committed a manifest illegality and impropriety in allowing the amendment. If the order is allowed to stand, the same will occasion failure of justice.
9. The apex Court has enunciated the principles to be followed after the amendment is allowed. The same is imperative. In Gurdial Singh and others v. Raj Kumar Aneja and others, (2002) 2 SCC 445, the apex Court in paragraph 18 of the report held that :
"Once a prayer for amendment is allowed the original pleading should incorporate the changes in a different ink or an amended pleading may be filed wherein with the use of a highlighter or by underlining in red the changes made may be distinctly shown. The amendments will be incorporated in the pleadings by the party with the leave of the court and within the time limited for that purpose or else within fourteen days as provided by Order 6, Rule 18 CPC. The court or an officer authorised by the court in this behalf, may compare the original and the amended pleadings in the light of the contents of the amendment application and the order of the court permitting the same and certify whether the amended pleading conforms to the order of the court permitting the amendment. Such practise accords with the provisions of the Code of Civil Procedure and also preserves the sanctity of record of the court. It is also conducive to the ends of justice inasmuch as by a bare look at the amended pleadings the court would be able to appreciate the shift in stand, if any, between the original pleadings and the amended pleadings. These advantages are in addition to convenience and achieving maintenance of discipline by the parties before the court. Amendments and consequential amendments, allowed by the court and incorporated in the original pleadings, would enable only one set of pleadings being available on record and that would avoid confusion and delay at the trial��."
10. In the wake of the aforesaid, the order dated 11.1.2008 passed by the learned Adhoc Additional District Judge, F.T.C. No.IV, Cuttack in R.F.A. No.1 of 2006 is quashed.
The petition is allowed. No costs.
