Manepalli Venkata Lokanatha Prasad v. Gogineni Suryanarayana
2002-02-01
DUBAGUNTA SUBRAHMANYAM
body2002
DigiLaw.ai
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision petition is filed against the order dated 7-8-1999 in i. A. No. 463 of 1997 in OS No. 270 of 1995 on the file of Senior Civil Judge, Avanigadda. ( 2 ) FACTS leading to the filing of this revision petition are as follows: the respondent filed the money suit in os No. 270 of 1995 to recover a sum of rs. 1,35,554/ -. As per the averments in the plaint, the plaintiff lent a sum of Rs. 90,000/- on 20-10-1990, and on the same day obtained the suit promissory note in favour of the plaintiff from the defendants 1, 2, 5 and 6. During the pendency of the suit, the plaintiff filed a petition under Order 6, rule 17 CPC in 1a No. 463 of 1997 seeking the permission of the Court to amend the plaint. By way of amendment the plaintiff wanted to plead that though the amount was borrowed on 20-10-1990, as revenue stamp was not available on that day, on a later date i. e. , on 15-11-1991 promissory note was obtained and at the time of obtaining the promissory note on 15-11-1991, as the amount was lent on 20-10-1990, the date of promissory note was also shown as 20-10-1990. The amendment was opposed by the defendants. ( 3 ) THE learned Senior Civil Judge observed in his order that if the plaintiff is permitted to amend the plaint by inserting the proposed pleadings, it would not cause any prejudice to the rights of the defendants and if the amendment is permitted the defendants will be having legal right to file the additional written statement to the amended pleadings sought to be added in the plaint and the amendment does not change the subject matter of the suit, causing prejudice to the rights of the defendants. Accordingly, by his order dated 7-8-1999 he allowed the petition. Aggrieved by that order the defendants in the suit preferred this revision petition. ( 4 ) AT the outset itself, it is to be stated that either from the affidavit of the plaintiff in support of the amendment petition or at the time of hearing of this revision petition, the reason why the plaintiff sought the amendment as proposed in the petition is not made clear.
( 4 ) AT the outset itself, it is to be stated that either from the affidavit of the plaintiff in support of the amendment petition or at the time of hearing of this revision petition, the reason why the plaintiff sought the amendment as proposed in the petition is not made clear. ( 5 ) IT is contended on behalf of the revision petitioners that if the proposed amendment is allowed, the effect would be that the admissions made by the plaintiff in the plaint would be taken away. On the other hand the learned Counsel for the respondent contended that the date offending is 20-10-1990 and by the proposed amendment that fact is not changed. He further contended that the date of execution of the promissory note alone is sought to be changed by the proposed amendment and it is ancillary in nature and it is not going to affect the interest of the defendants. He also further contended that if the party to any pleadings committed any mistake while drafting the pleadings, he must be permitted to correct the mistake and at the time of the trial, the Court can find out whether the mistake alleged is true or not and give the findings. ( 6 ) AT the time of hearing of this revision petition, the parties placed the plaint copy before the Court. In para No. 4 of the plaint, the plaintiff pleaded that the 1st defendant as manager of the Joint hindu Family of defendants 1 to 4 and defendants 2, 5 and 6 borrowed a sum of rs. 90,000/- from the plaintiff to discharge their Joint Family debts and to meet agricultural expenses and for development of business on 20-10-1990 and on the same day executed the pro-note agreeing to repay the same with interest at 24% per annum etc. By the proposed amendment, the plaintiff wants to delete the words "on the same day" in the cause of action in the plaint, in para No. 8 the plaintiff further pleaded that the cause of action for the suit arouse on 20-10-1990 when first defendant as manager of his Joint Family and defendants 2, 5 and 6 jointly borrowed and executed the suit promissory note. The copy of the suit promissory note is also shown to me at the time of hearing of this revision petition.
The copy of the suit promissory note is also shown to me at the time of hearing of this revision petition. ( 7 ) THE recitals in the suit promissory note disclose that the suit promissory note was executed on 20-10-1990. the date on which the signatories to the promissory note borrowed Rs. 90,000/- from the plaintiff. ( 8 ) THEREFORE, as per the recitals in the plaint the lending of the amount as well as execution of the promissory note took place on one and the same day i. e. , on 20-10-1990. If the proposed amendment is allowed the amended pleading will have the effect of wiping of the admissions made in the plaint to the effect that suit promissory note was executed on date of borrowing of money by the defendants concerned. The legal position is very clear. By way of amendments, the party should not be permitted to withdraw certain crucial admissions made by the party in his pleadings. There cannot be any dispute that the proposed amendment would clearly wipe of the admissions made by the plaintiff in the plaint in Para 4 of the plaint as well as in the cause of action para 8. ( 9 ) IT is the next contention of the respondent that before filing the suit, a legal notice demanding the amount due was given by the plaintiff to the defendants and in that notice the date of execution of the suit promissory note was shown as 15-11-1991. It is his contention that some confusion was there and therefore the plaintiff is to be permitted to amend the plaint. If there was any confusion while issuing the notice, it stood cleared at the time of filing the suit. Reference to the date as 15-11-1991. it is explicitly pleaded that it relates to the pronote for Rs. 80,000/- in favour of the wife of the plaintiff. The amount of consideration recited in the present suit promissory note is Rs. 90,000/- and not Rs. 80,000/ -. There is also reference in the plaint to another important fact. It is pleaded further that on the basis of that promissory note for Rs. 80,000/ dated 15-11-1991 another suit was filed and it is pending. The proposed amendment of the plaint does not relate to those averments.
90,000/- and not Rs. 80,000/ -. There is also reference in the plaint to another important fact. It is pleaded further that on the basis of that promissory note for Rs. 80,000/ dated 15-11-1991 another suit was filed and it is pending. The proposed amendment of the plaint does not relate to those averments. ( 10 ) I do not agree with the contentions of the learned advocate for the respondent and as well as the reasoning of the learned Sub-Judge, that after the amendment is allowed, the defendants would be getting an opportunity to file additional written statement and during the course of trial, it can be proved that the suit promissory note was executed on 15-10-1990 and not on 15-11-1991. The approach of the learned sub-judge is wrong. He should not have allowed the amendment petition for the reasons stated by him in his order. I am clearly satisfied that the impugned order is illegal and it is liable to be set aside. ( 11 ) IN the result, the CRP is allowed. The order of the learned sub-judge in ia No. 463 of 1997 in O. S. No. 270 of 1995 is set aside. The said petition stands dismissed, without costs. The Senior Civil judge is directed to dispose of the suit on merits without taking into consideration any of the observations made by him in the impugned order as well as the observations made by this Court in this order.