Amendment of plaint, c.p.c.,

Querist : Anonymous (Querist) 06 October 2011 This query is : Resolved
sir, the husband had filed a suit against the wife for declaration, to declare him as the owner to the fixed deposit amounts standing in the name of his wife. i am appearing for the wife. wife had wihthdrawn the fixed deposit amounts before summons were served. wife had also filed a memo stating that suit scheduled money is not in existence the husband had filed a petition for amendment of plaint to amend the that he had issued notice to bank not to permit the wife to withdraw the amounts. but the bank had not informed us about that, and we are not aware whether any such notice was given by the plaintiff husband. in the meanwhile we had filed a petition for rejection of plaint on the grounds that 1) as the fixed deposits stands in the name of the wife she is the absolute owner of the property and has all right to withdraw. 2)
recieved summons only after she had withdrawn the said amounts and also filed a memo to that effect hence a suit cannot maintained for a property which is not in existence. Please answer my query with some relevant supreme court decisions. thank you.

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s.subramanian (Expert) 06 October 2011
You can also raise a point for rejection under order 7 rule 11 of cpc that there exists no cause of action at all to sue and this point will have very serious impact upon his case. The suit is infructuous and the same has to be rejected invariably.

Raj Kumar Makkad (Expert) 06 October 2011
Your already moved application shall be treated as moved under order 7 rule 11 of cpc and there are numerous citation thereon.

1. (2006)5 SCC 658 (Balasaria Construction (P) Ltd. ..vs.. Hanuman Seva Trust and ors.)

2. 2005 (5) SCC 548 ( N.V.Srinivasa Murthy vs. Mariyamma)

3. 2005 (7) SCC 510 (Popat and Kotecha Property .vs. State Bank of India Staff Assn.)

Shailesh Kr. Shah (Expert) 06 October 2011
Experts explained with case laws. No need to additions.

ajay sethi (Expert) 06 October 2011
suit has become infructous as fixed deposits are not in existence

prabhakar singh (Expert) 06 October 2011
i also agree, Infructuose has become the suit as framed but the same can be amended for a suitable relief as on date of suit property existed.

Advocate Bhartesh goyal (Expert) 06 October 2011
Suit can be amended as on the day of filing suit questioned property was in existence.It is hardly matter that before receiving summon of suit money had been withdrawn.

kuldeep kumar (Expert) 06 October 2011
at d time of suit property existed.at d time of process no property existed.suit is maintenable by amendment howsoever infructuous it may become.

Querist : Anonymous (Querist) 06 October 2011
your advice is very useful thank you so much. Whether the husband can file a suit against the wife for the FD standing in the name of the wife. even if presuming that husband is the owner of the said FDs whether he can can claim his right when the documents pertaining to the FD stands in the name of the wife. please explain me how it is maintainable. once again thank you all for advising me in the subject.

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