Katakam Yadagir and Co. , Khammam v. Chandrugundla Surya Prakash Rao and Prakash Rao
2004-08-31
B.SESHASAYANA REDDY
body2004
DigiLaw.ai
B. SESHASAYANA REDDY, J. ( 1 ) THIS civil revision petition is directed against the Order dated 20-1-2003 passed in IA No. 1880 of 2002 in O. S. No. 164 of 2001 on the file of Senior Civil judge, Khammam, by which the learned senior Civil Judge dismissed the application filed under Order VI, Rule 17 of the Code of Civil Procedure (for brevity cpc ). ( 2 ) THE petitioners are the defendants and the respondent is the plaintiff in o. S. No. 164 of 2001. The plaintiff filed the suit for recovery of Rs. 4,92,032/ -. The petitioners-defendants filed written statement resisting the claim of the respondent-plaintiff. The Trial Court framed the following issues:1. Whether the Defendant Nos. 2 and 3 paid Rs. 15,000/- on 18 8-1999, if not whether the suit is barred by limitation?2. Whether the defendants agreed to pay interest on the balance amount?3. To what relief? ( 3 ) THE plaintiff commenced the evidence and examined P. W. I in part in chief and marked Exs. A-1 and A-2. When the suit stood posted for further chief-examination of P. W. I, the defendants filed la. No. 1880 of 2002 under Order VI, Rule 17 CPC seeking amendment of the written statement. The effect of the proposed amendment is withdrawing the earlier admission made by the petitioners-defendants regarding the quantum of amount due to the respondent-plaintiff. The respondent-plaintiff filed counter-affidavit resisting the application of the petitioners-defendants under Order VI, Rule 17 CPC. The learned senior Civil Judge on considering the material on record and on hearing the Counsel for the parties dismissed the application by an order dated 20-1-2003. Assailing the said order, the petitioners-defendants have field this revision petition. ( 4 ) THE learned Counsel for the petitioners-defendants submits that a mistake crept in the reply notice unconscionably and the same has been carried out in the written statement and therefore, there is justification on the part of petitioners-defendants in filing the petition seeking amendment of the pleadings. He placed reliance on the decision of the Supreme court in B. K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 , wherein it is held that in case of amendment of written statement, as prejudice less likely to arise, Courts are to be more liberal in permitting such amendments.
He placed reliance on the decision of the Supreme court in B. K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 , wherein it is held that in case of amendment of written statement, as prejudice less likely to arise, Courts are to be more liberal in permitting such amendments. ( 5 ) THE learned Counsel for the respondent-plaintiff submits that the petitioners-defendants admitted the liability in the reply notice consciously and their admission has been incorporated in the plaint and thereupon the petitioners-defendants filed written statement admitting the quantum of amount arrived at as on the date of the retirement of the respondent-plaintiff from the partnership firm and therefore under the circumstances of the case, the Trial Court is justified in dismissing the application and the same is not required to be interfered in this civil revision petition. He placed reliance on the decision of the supreme Court in Heeralal v. Kalyan Mal, 1998 (1) ALD (SCSN) 2 = AIR 1998 SC 618 . In which it is held thus:"seeking amendment of written statement whereby withdrawing earlier admission made regarding 7 properties- if the said amendment is allowed, would displace the plaintiff s case and his right to get preliminary decree-amendment not permissible. " ( 6 ) IT is not more in dispute that the respondent-plaintiff issued legal notice prior to filing of the suit. It has been stated in the legal notice that the amount due to him was arrived at Rs. 2,66,220-84 ps. It is further stated in the legal notice that the petitioners-defendants made part payments Rs. 5,000/- on 8-4-1997 and Rs. 15,000/- on 18-8-1999. The petitioners-defendants issued reply notice. In the said reply notice, apart from taking some other pleas, they have categorically denied the part payment dated 18-8-1999, so far as the liability of Rs. 2,66,220-84 is concerned, they admitted the same. It is useful to refer Para 10 of the legal notice and it reads thus:"that it is true that at the time of retirement of your client from the firm is accounts of the firm were looked into and it is false to allege that the firm and Party Nos. 2 and 3 of the legal notice are due an amount of rs. 2,86,220-84 ps.
2 and 3 of the legal notice are due an amount of rs. 2,86,220-84 ps. by 31-3-1997 to your clients and that it is showed in the ledgers for the years 1996-97 and in the subsequent years about alleged balance amount of your client. That it is false to allege that my Clients No. 2 and 3 showed their inability to pay the said amount to your client. That it is false to allege that the said alleged amount of Rs. 2,86,220-84 ps was kept as deposit in the account of my Client No. 1. That it is true that my Client Nos. 2 and 3 have paid an amount of Rs. 5,000/- to your client on 8-4-1997. It is false to allege that my Client Nos. 2 and 3 had also paid rs. l5,000/-on 18-8-1999 to your client. That it is true that the balance amount of rs. 2,66,220-84 ps was showed as accrued balance in the account books of my Client no. 1 in the name of your client. It is false to allege that the said amount was kept in the deposit in the name of your client and that the same will carry 18% interest. " ( 7 ) THE respondent-plaintiff mentioned the admission of the petitioners-defendants with regard to their liability in the plaint. The petitioners-defendants filed written statement wherein they categorically admitted that an amount of Rs. 2,86,220-84 ps as shown in the account books is due to the plaintiff as on 31-3-1997. If the proposed amendment is allowed, it amounts to withdrawal of the admission made by the petitioners- defendants, which, in my considered view, causes prejudice to the respondent- plaintiff. The Trial Court on considering the material brought on record dismissed the petition. I do not see any ground to interfere with the impugned order dated 20-2-2003 in IA No. 1880 of 2002 in OS no. 164 of 2001. ( 8 ) ACCORDINGLY, the civil revision petition is dismissed.