Palok Basu, J - (1.) -The petitioner who is the wife has challenged the order of the trial Judge dated 12-8-88 whereby he refused 10 permit the petitioner to amend or substitute the written statement in a Divorce suit filed by husband Opposite party Having heard Sri Brij Raj Singh learned counsel for the petitioner and Sri S. D. Pathak learned counsel for the contesting opposite party at length and perusal of materials, various annexure filed alongwith affidavit, counter affidavit and rejoinder affidavit, this writ petition is being disposed of finally at the admission stage.
(2.) THE controversy is as to whether due to the so-called admissions made by the petitioner in the written statement purported to have been filed by her, which is being stoutly denied by the petitioner at every stage and the fact that the petitioner did not press a similar application for amendment on an earlier occasion, the trial court must discard the fresh prayer that said written statement be not relied upon and the petitioner be permitted to substitute or amend it The facts are that Ravindra Singh has filed a suit seeking divorce from the petitioner. There exists a written statement on the record which was purportedly filed on behalf of the petitioner which allegedly contains some admissions of the petitioner. The petitioner has repeatedly denied the voluntary execution of the said written statement and has challenged its genuineness. She prayed for its amendment on an earlier occasion. For some reason it appears, the said application was not pressed. A fresh application was moved for substituting or amending the written statement which prayer has been refused by the impugned order, hence this writ petition. Sri Brij Raj Singh argued that the petitioner was living with the opposite party (husband). She expressed the desire to live with her parents at a much later stage It is argued that when she came to know of the so called written statement she objected and denied its execution. Under the circumstances, it is argued that the court concerned should allow the substitution or amendment of the written statement or else he should permit the petitioner to examine herself on oath on this issue so that a clear finding is arrived at whether the earlier written statement was recorded voluntarily or was surruptitiously filed on her behalf It is further argued that just because on an earlier occasion, an amendment appl cation was not pressed, does not dis-entitle the petitioner to seek the amendment and, therefore, that application must have been decided on merits by the trial court.
(3.) SRI S. D. Pathak argued three points in opposition. Firstly, there is an alternative remedy available to the petitioner under Section 115 of the Code of Civil Procedure and, therefore, writ petition is not maintainable. Reliance was placed on Rama Shankar's case, 1968 AWR 103. Secondly, substitution of the Written Statement by an altogether new one Is not permissible under the law. Thirdly, there is no substance in the stand taken by the petitioner regarding forgery or fraud and because of contradictions in her applications and affidavts, her case should be thrown out. SRI Brijraj Singh has opposed all the three arguments. It may be stated at the outset that an order may be revisable under Section 115 CPC only when by it the case is decided. The cited case (Rama Shanksr Tiwari Supra) says that where an amendment is allowed or refused it may become a case decided In the instant suit, the amendment was refused not on the ground of no reason having been made out Admittedly, on the first occasion the application for amendment was not pressed and the impugned order has been passed on the basis that the first amendment application was rejected. Therefore, the case of Rama Shankar Tiwari (Supra) is not applicable to the facts of the present case.;