Sunday 5 July 2015

When court should permit amendment in petition under Domestic violence Act?



In the reply, the respondent  has not specifically denied 
the averments of the petitioner that she is having some share in the 
landed properties.  It has also not been denied by the respondent that 
because   of   her   having   shares   in   the   landed   properties   there   is   a 

possibility of earning of some income  therefrom by her.  Even  the 
documents placed on record which documents, as stated by learned 
Counsel for the petitioner, are the true copies of the documents filed 
on   record   before   the   lower   Court,   support   the   contentions   of   the 
petitioner.  These documents do not at all show  at this stage, that the 
name   of   the   respondent     has   been   deleted   by   way   of   mutation 

sanctioned by the   competent  authority under the provisions of the 
Land Revenue Code.  With such facts there being present  on record, 
it is quite  surprising to note that the learned Magistrate has recorded 
a finding that  the name of the respondent has been deleted from  the 
7/12   extracts   pertaining   to   some   of   the   agricultural   lands.     This 
finding is   prima facie  against the material   present on record and 
also   amounts to entering into the merits of the case, which is not 
permissible   at   the   stage   of   consideration   of   an   amendment 
application.   Besides, there has been no denial on the part  of the 
respondent about the said contentions of the petitioner.   Therefore, 
the order impugned   herein is perverse and   arbitrary and as such 
cannot be sustained in law. 
As regards the contention that allowing of amendment 
application would   cause delay to the proceedings,   I must say that 
there is no substance   in the same, as by arbitrary rejection of the 
amendment   application, the matter has been already unnecessarily 

delayed.     If   the   respondent   had   given   her   no   objection   to   the 
application, this situation  would not have  arisen.  That apart,  what 
is illegal and arbitrary in law cannot be allowed to be continued  on 
the excuse  of delay  in proceedings.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Writ Petition No.926 of 2014.

Surendra Ramdas Mahure,
Vs
Sau. Anita Surendra Mahure,

Coram : S.B. Shukre, J.

Dated  : 08   January, 2015.
Citation; 2015 ALLMR(CRI)2124

Rule.  Rule made returnable forthwith. Heard finally with the 
consent of the learned Counsel for the parties.

This Writ Petition is directed against the order passed by 
1]
                                                      
the   Judicial   Magistrate,   First   Class,   Court   No.6,   Akola   on 
14­10­2014, thereby   rejecting   the amendment application   of the 
petitioner vide Exhibit­53.
It is the contention of the petitioner that when he had 
2]
filed   his   reply   to   the   application   filed   under   Section   12   of   the 
Protection   of   Women   from   Domestic   Violence   Act,   2005   by   the 
respondent, in which  the amendment was also claimed, the petitioner 
was   not   aware   of   the   fact   that   the   respondent   was   getting   some 
income from her share in various agricultural  lands.  The petitioner 
also submitted that he got information in that regard  on 09­05­2014 
and, therefore, he  immediately moved an application for amendment 
by incorporating his averments  regarding earning of income by the 
respondent   in   his   reply.   The   application   was   opposed   by   the 
respondent only on the grounds that  there was no  provision under 
the Protection of Women from Domestic Violence Act for granting 
permission to amend   the reply filed by the petitioner and that the 
amendment  application  had been moved only with a view to delay 
the proceedings at the time  when  the matter was fixed for  recording 
of evidence.
3]
Upon consideration of the stand taken by both the sides 

and hearing   the rival parties,   the learned Magistrate, by an order 
passed on 14­10­2014 rejected the application.   Being aggrieved by 
the   same,   the   petitioner   is   before   this   Court   in   the   present   Writ 
Petition.  
It   is   the   contention   of   the   learned   Counsel   for   the 
4]
petitioner  in the first place that the respondent was having her share 
in six landed properties and that earning of income therefrom was 
not at all denied by the respondent and in the  second place that there 
were also documents placed on record, which were in  the nature of 
7/12 extracts and the admissions of the respondent which appeared in 
written statement filed in Regular Civil Suit No.29 of 2009 clearly 
indicating   that   the   respondent   was   the   owner   of   some   landed 
properties   thereby   giving   rise   to   a   possibility   of   earning   of   some 
income by   her   and even then, the learned Magistrate, by entering 
into  the merits of the matter, found that the entries in 7/12 extracts 
in the name of respondent came to be deleted  by way of mutation, 
which  is  not    permissible in law while considering the prayer for 
amendment of the reply.  
5]
The   learned   Counsel   for   the   respondent,   strongly 
opposing the petition submits that even though there are no specific 
denials   in   the   reply   filed   to   the   amendment   application   vide 

Exhibit­53 to the submissions of the petitioner   that the respondent 
was having her  landed properties and was  earning some income, the 
amendment   application   was   rightly   rejected   by   the   learned 
Magistrate because it was filed  with a view to delay the proceedings. 
He also   submits that the respondent   always had an opportunity to 
prove his defence   that the respondent being   the owner of   some 

landed properties was   capable of earning independently by giving 
appropriate   suggestions   in   the   cross   examination   and   by   placing 
documents   in   support   thereof.     Therefore,   no   prejudice   has   been 
caused to the petitioner by rejecting his amendment application so 
submits the learned Counsel.  
6]
Upon perusal of the amendment application, reply filed 
thereto and the copies  of the documents produced before the Court 
of Judicial Magistrate, which are forming the part of present petition, 
I   find     substance   in   the   argument   of   the   learned   Counsel   for   the 
petitioner and no merit  in the argument of the learned Counsel for 
the respondent.
7]
In the reply, the respondent  has not specifically denied 
the averments of the petitioner that she is having some share in the 
landed properties.  It has also not been denied by the respondent that 
because   of   her   having   shares   in   the   landed   properties   there   is   a 

possibility of earning of some income  therefrom by her.  Even  the 
documents placed on record which documents, as stated by learned 
Counsel for the petitioner, are the true copies of the documents filed 
on   record   before   the   lower   Court,   support   the   contentions   of   the 
petitioner.  These documents do not at all show  at this stage, that the 
name   of   the   respondent     has   been   deleted   by   way   of   mutation 

sanctioned by the   competent  authority under the provisions of the 
Land Revenue Code.  With such facts there being present  on record, 
it is quite  surprising to note that the learned Magistrate has recorded 
a finding that  the name of the respondent has been deleted from  the 
7/12   extracts   pertaining   to   some   of   the   agricultural   lands.     This 
finding is   prima facie  against the material   present on record and 
also   amounts to entering into the merits of the case, which is not 
permissible   at   the   stage   of   consideration   of   an   amendment 
application.   Besides, there has been no denial on the part  of the 
respondent about the said contentions of the petitioner.   Therefore, 
the order impugned   herein is perverse and   arbitrary and as such 
cannot be sustained in law. 
8]
As regards the contention that allowing of amendment 
application would   cause delay to the proceedings,   I must say that 
there is no substance   in the same, as by arbitrary rejection of the 
amendment   application, the matter has been already unnecessarily 

delayed.     If   the   respondent   had   given   her   no   objection   to   the 
application, this situation  would not have  arisen.  That apart,  what 
is illegal and arbitrary in law cannot be allowed to be continued  on 
the excuse  of delay  in proceedings.  
In this view of the matter, I am inclined   to allow the 
9]
petition.     The   impugned   order   dated   14­10­2014   passed   below 
Exhibit­53   is   hereby   quashed   and   set   aside.     The   application   at 
Exhibit­53  is allowed.  Amendment be carried out within a period of 
two weeks from the date of the order.  The parties shall appear before 
the Court of Judicial Magistrate, Court No.6, Akola  on the next date 
that may be given by that Court.
10]
Rule is made absolute in these terms.   Writ Petition is 
disposed of accordingly.
                                                                     
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