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2004 DIGILAW 918 (AP)

Amarnath Jain v. K. Vijaya Kumari

2004-08-27

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) DEFENDANTS in O. S. No. 871 of 2001 on the file of the Court of VII Senior Civil Judge, city Civil Court, Hyderabad filed this revision assailing the order dated 02-04-2004 passed in I. A. No. 374 of 2004. The respondents are plaintiffs in that suit. ( 2 ) THE suit was filed for the relief of specific performance of an agreement of sale dated 18-07-1992. The respondents contended that the first petitioner executed the agreement of sale in favour of their brother late Eswar Lal. According to them, the suit schedule property was agreed to be sold for a consideration of Rs. 3,51,000/- and out of it, an amount of Rs. 1,00,000/- was paid as advance on 18-07-1992 when the agreement of sale was executed. After referring to the correspondence that ensued between their deceased brother and the petitioners, the respondents expressed their readiness and willingness to fulfill their part of contract and prayed for relief of specific performance. ( 3 ) THE respondents filed I. A. No. 374 of 2004 under Order VI Rule 17 C. P. C. to amend the plaint. According to them, when they were cleaning the house on 14-03-2004 on the eve of Ugadi festival, they found a memorandum of understanding dated 11-07-1995 entered into between their deceased brother and the petitioners and that there are several recitals in it which have a direct bearing on the subject matter of the suit. The memorandum of understanding is said to be to the effect, that a further sum of rs. 1,00,000/- was paid, and the brother of the respondents was permitted to continue in possession of the premises without payment of rent. Certain conditions contained in the agreement of sale dated 18-07-1992 are also said to have been dealt with in the memorandum of understanding. On the basis of the same, they intended to incorporate para 7 (a) in the plaint. No amendment was sought to the prayer or other parts of the suit. The petitioners resisted the same alleging that the amendment would have the effect of inclusion of certain claims which are untenable in law and barred by limitation. On the basis of the same, they intended to incorporate para 7 (a) in the plaint. No amendment was sought to the prayer or other parts of the suit. The petitioners resisted the same alleging that the amendment would have the effect of inclusion of certain claims which are untenable in law and barred by limitation. Through the order under revision, the trial court allowed the I. A. ( 4 ) SRI Muralinarayan Bung, learned counsel for the petitioners, submits that the memorandum of understanding, which is said to have constituted the basis for amendment, is fabricated and brought into existence to overcome the admissions made by the respondents in the plaint as well as during the course of evidence. He contends that the written statement was filed, issues were framed, evidence on behalf of the respondents herein was closed, cross- examination of D. W. 1 is due and that it is at a very advanced stage. He submits that the effort of the respondents is only to fill the lacunae noticed and found in their pleadings and evidence. He relies upon several judgments to contend that where a claim is barred in law, it cannot be introduced by way of amendment, in a suit. ( 5 ) SRI B. Narayana Reddy, learned counsel for the respondents, on the other hand, submits that the amendment was necessitated on account of the discovery of memorandum of understanding dated 11-07-1995 during the Ugadi festival in the year 2004. He contends that the memorandum of understanding had a direct bearing on the subject matter of the suit and no prejudice, as such, would be caused to the petitioners if the amendment is allowed. He submits that the memorandum, which is subsequent to the agreement of sale, cannot be said to be barred by limitation or otherwise untenable in law. ( 6 ) THE respondents filed the suit for the relief of specific performance of an agreement of sale dated 18-07-1992. They are not parties to the agreement. It was entered into between their brother late eswar Lai and the first petitioner. The trial of the suit is in progress. At that stage, they filed I. A. No. 374 of 2004 to amend the plaint by incorporating para 7 (a ). The proposed amendment turns around the contents of the memorandum of understanding dated 11-07-1995. It was entered into between their brother late eswar Lai and the first petitioner. The trial of the suit is in progress. At that stage, they filed I. A. No. 374 of 2004 to amend the plaint by incorporating para 7 (a ). The proposed amendment turns around the contents of the memorandum of understanding dated 11-07-1995. According to the respondents, they found the memorandum of understanding only when they were cleaning their house during the Ugadi festival of 2004. The petitioners opposed the application by disputing the genuineness of the memorandum of understanding and on the ground that the pleadings sought to be introduced through amendment are barred by law and in particular, the law of limitation. A further plea is raised that the amendment is sought only with a view to overcome certain admissions made in the plaint and evidence by the respondents. ( 7 ) ORDER VI Rule 17 C. P. C. provides for amendment of pleadings. The purpose underlying the same is to avoid multiplicity o! proceedings and to ensure that the adjudication in a suit is as complete as possible. The Rule itself says that such amendments can be made at any stage of the proceedings and instances are not lacking where the pleadings were amended at the stage of appeal, second appeal and even in civil appeals before the Supreme court. However, an amendment cannot be permitted just for the asking of it. A party cannot be permitted to incorporate a plea through amendment, which is otherwise impermissible in law. One more important aspect is that the amendment should not result in altering the nature of the proceedings. Though there is a catena of decisions touching this aspect, suffice it to refer the Judgments in M/s. Modi Spinning and weaving Mills Co. Ltd. v. M/s. Ladha Ram and co. . Heera Lal v. Kalyan Mal and Radhika devi v. Bajrangi Singh. ( 8 ) THE gist of the principles laid down in the Judgments referred to above is that an amendment to the plaint or written statement cannot be permitted if an altogether new case or a plea otherwise barred in law is sought to be introduced. Several Judgments were rendered by this Court also on the same lines. In Gajanan Jaikishan Joshi v. Prabhakarmohanlal Kalwar, it was held that the discretion to allow amendments to pleadings should be guided by two factors viz. Several Judgments were rendered by this Court also on the same lines. In Gajanan Jaikishan Joshi v. Prabhakarmohanlal Kalwar, it was held that the discretion to allow amendments to pleadings should be guided by two factors viz. , that the amendment does not cause injustice to the other side and that the amendment is necessary for the purpose of determining the real question in the controversy between the parties. A further rider was added that an amendment can be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct. ( 9 ) REVERTING to the facts of the case, the respondents sought to amend the plaint in the context of the memorandum of understanding dated 11-07-1995. The question as to whether the memorandum of understanding is true and genuine, needs to be examined as and when it is introduced in the evidence. So far as the contention of the petitioners, that the amendment introduces a claim, which is barred by limitation, is concerned, it needs to be seen that the suit was filed on the basis of an agreement of sale dated 18-07-1992. The last date referable to the cause of action is stated as 22-06-2000 and 01-07-2000 when the petitioners are said to have issued a reply denying their liability to execute the sale deed. Several dates are mentioned in between, such as 19-05-1999 when the brother of the respondents died, the year 2000 when the first petitioner is said to have promised to execute the sale deed and 08-06-2000 when the petitioners are said to have got issued a notice. The date of the alleged memorandum of understanding falls in between. Therefore, it cannot be said that it introduces a new cause of action or a claim which is otherwise barred by limitation. At any rate, this aspect can certainly be agitated during the course of arguments. ( 10 ) THOUGH Rule 17 of Order VI C. P. C. does not stipulate any time within which an amendment can be sought, much would depend on the question as to whether the parties proposing the amendment were vigilant and whether there existed sufficient justification in seeking the amendment at a later point of time. The reason is that a party cannot be permitted to deliver the pleadings in instalments or to take the other side by surprise. The reason is that a party cannot be permitted to deliver the pleadings in instalments or to take the other side by surprise. Strong reasons and circumstances should exist for amending the pleadings. In the case on hand, it needs to be noticed that the respondents were not parties to the agreement of sale. It was their brother, who was a party to it, and who dealt with the matter till his death in the year 1999. The respondents were not in the picture during the life time of their brother. Therefore, they were not supposed to be in the custody of all the documents pertaining to the transactions. It cannot be said that the respondents had the custody of the memorandum of understanding and have deliberately chosen not to refer to the same in the plaint when the suit was filed. Since the alleged memorandum of understanding dated 11-07-1995 pertains to the suit transaction, it would certainly constitute the basis for amendment. ( 11 ) IT is not as if that by mere amendment to the plaint, the plea raised by the petitioners stands accepted or that the document is treated as genuine. The petitioners cannot be said to have been put to any injustice if the amendment is allowed. Further, the amendment would enable the parties to seek a complete and comprehensive adjudication of the dispute. ( 12 ) HENCE, this Court does not find any ground to interfere with the order under revision. ( 13 ) THE Civil Revision Petition is accordingly dismissed. It shall be open to the respondents to raise all the contentions in relation to the amendment, by filing additional written statement, adducing evidence and through arguments, at the hearing. No costs.