Dear experts,
I need your kind help to understand the following situation:
I had filed a divorce case on grounds of desertion (2005). The same was dismissed (2008) and appeal lies in the High Court.
When I was acquitted in a false dowry case (2009), I filed another case (2010) on grounds of cruelty which was dismissed as not maintainable under res judicata. The reason being that I should have taken the plea of cruelty at the time of filing of plaint on grounds of desertion.
The Hon'ble HC has agreed with us that the ground of cruelty was not available with us in 2005 since the dowry case was pending at that time and it was finalised only after the deseration case had been decided. The Hon'ble DB has, however, suggested to me that it is going to remit my cruelty case back to lower court since no evidences were led by either party.
Now, my lawyers are suggesting that since sufficient material is available before the HC, we should file an amendment in the earlier appeal (desertion case) and incorporate the cruelty ground in desertion case. I am not fully convinced that such an amendment which raises a new ground/issue can be allowed in appellate court. My understanding is that every issue needs to be tried in trial court. I am reproducing the relevant portion of Order 43 for ready reference:
_______________________________
23. Remand of case by Appellate Court.- Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
25. Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from.- Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons there for within such time as may be fixed by the Appellate Court or extended by it from time to time.
I shall be grateful if you could kindly advise: Is it possible to amend my earlier appeal to incorporate new and different ground/issue of cruelty without a trial when sufficient material to decide the new issue is already available on file?
Regards,
Rajesh
