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2015 (5) TMI 1118 - HC - Indian LawsPetition for divorce filed under Section 13(i)(a) of the Hindu Marriage Act was - dismissal of petition as the marriage between the parties had been contracted under the Special Marriage Act, therefore, the petition for divorce ought to have been filed under the Special Marriage Act - direction to the respondent to amend the divorce petition - Held that:- The court has no power of its own unlike under Section 151 CPC or under Order 14 Rule 5 CPC or Order 1 Rule 10 CPC to pass an order which may be warranted under law in those contingencies. As has already been discussed in the previous paras, the learned Trial Judge, in my considered opinion, has exceeded its jurisdiction of also giving a direction to the respondent to amend the plaint and treat the provisions of Section 13(1) (a) i.e. ground of cruelty as a ground for grant of divorce under the Special Marriage Act. When a party approaches a counsel for legal advice and entrusts the matter to him, it is presumed that the same shall be dealt with utmost professionalism and due despatch. In Rafiq v.Munshilal; (1981 (4) TMI 255 - SUPREME COURT), the Hon'ble Supreme Court has held that once a person engages his counsel his botheration goes and it is the duty of the counsel to take care of the case. In the instant case, the inadvertent drafting error seems to have crept in on the part of the drafting counsel which mistake should not prejudice the interest of the party. In the light of the aforesaid facts, the appeal is partly allowed holding that the court had no power suo moto to amend the plaint or give directions to that effect to any party. However, keeping in view the peculiar facts and circumstances of the case, that the case has been pending in court for the last nearly ten years and it would advance substantive justice between the parties, an opportunity is given to the respondent to take corrective steps within a period of six weeks to rectify his mistake. In case such an application is filed, it shall be dealt within accordance with law.
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