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2010 DIGILAW 1174 (PNJ)

Ram Saran v. Gurdev Singh

2010-03-12

K.C.PURI

body2010
Judgment K.C.Puri, J. 1 This is a petition under Article 227 of the Constitution of India for quashing the order dated 18.10.2005 passed by Civil Judge (Junior Division) Faridabad vide which application under Order 6, Rule 17 of the Code of Civil Procedure (in short - C.P.C.) stands dismissed. 2 It is alleged by the plaintiff/appellant that he has filed the present suit for recovery on the basis of the cheques issued by the plaintiff and encashed by the defendant total amounting Rs.1,38,000/- through five cheques issued between 21.9.1994 to 15.5.1995 as mentioned in para No.4 of the plaint. After encashment of the cheques, defendant executed cash receipts on stamp papers Exhibit P-4 in the presence of the witnesses on 17.7.1995. The plaintiff is a very simple fellow and does not understand the law and totally dependent on the advise of the counsel. His counsel could not plead in the plaint regarding execution of cash receipt dated 17.7.1995 Ex.P-4 which is on the court file, although witnesses of receipt have also appeared on his behalf. It is very necessary and essential regarding incorporation of receipt in para No.5 of the plaint after end of para No.5 the following line may be inserted:- "that defendant executed cash receipt on 17.7.1995 and duly signed the said receipt in the presence of witnesses namely Sh. Ram and Sunil Kumar and admitted and acknowledged the receipt of Rs.1,38,000/- through five numbers of cheques issued by plaintiff being proprietor of S.K. Footwears and duly encashed by the defendant". It is also alleged that in first line of para No. 12 of page 4. "When the time period of be admitted and after conclusion of para No.12 of the plaint, the following line may kindly be allowed to be added by amendment. "And finally on 18.9.1997 which necessitated the institution of the suit". 3 It is further averred that the proposed amendment is essential and necessary for the determining of the real issues and it would not change the nature of the suit and prayed that the proposed amendment may be allowed. "And finally on 18.9.1997 which necessitated the institution of the suit". 3 It is further averred that the proposed amendment is essential and necessary for the determining of the real issues and it would not change the nature of the suit and prayed that the proposed amendment may be allowed. 4 Defendant filed a detailed reply to the application in which he has taken the preliminary objections that application for amendment of the plaint is not permissible at this stage; amendments proposed by the plaintiff will change the nature and character of the suit and not necessary for the proper adjudication of the litigation between the parties and application is mala fide in nature. It is denied by the defendant that earlier counsel for the plaintiff could not plead regarding the cash receipt in the plaint as alleged. The plaintiff was assisted by a fairly sound and senior counsel and this plea raised is wrong and misconceived. The plaintiff has already examined PW-5 and he has already been cross-examined at length on the plaint of alleged receipt, to which positive evidence defying the case of the plaintiff has come. The plaintiff now wants to fill-up the lacuna in his pleadings by moving the present application. The application filed by the plaintiff is totally mala fide in nature which requires dismissal with costs. 5 The learned trial Court, after hearing the learned counsel for the parties, dismissed the said application holding that allowing the impugned application would amount to do novo trial, which cannot be allowed under the law. 6 Feeling dis-satisfied with the aforesaid order, the petitioner has preferred the present revision petition. 7 I have heard the learned counsel for the parties and have gone thorough the records of the case. 8 Learned counsel for the petitioner has submitted that suit of plaintiff is for recovery of Rs. 1,3 8,000/-. Five cheques were issued by the plaintiff, which were got encashed by the defendant and ultimately a consolidated receipt of Rs.1,38,000/- was issued by the defendant on 17.7.1995. The plaintiff is a rustic villager and due to inadvertence the receipt dated 17.7.1995 could not be pleaded. During trial, the plaintiff has proved the said receipt before the Trial Court. Five cheques were issued by the plaintiff, which were got encashed by the defendant and ultimately a consolidated receipt of Rs.1,38,000/- was issued by the defendant on 17.7.1995. The plaintiff is a rustic villager and due to inadvertence the receipt dated 17.7.1995 could not be pleaded. During trial, the plaintiff has proved the said receipt before the Trial Court. The learned trial Court has dismissed the application under Order 6, Rule 17 CPC on the ground that there is a delay in filing the application under Order 6, Rule 17 CPC and that the proposed amendment would change the nature of the case. It is submitted that nature of the case shall remain the same i.e. regarding recovery of the amount of Rs.1,38,000/- in respect of five cheques. The plaintiff/petitioner will not lead any evidence after the amendment. The proposed amendment is just explanatory in nature and is very essential for the just decision of the case. The nature of the case will not be changed. To support this contention learned counsel for the petitioner has relied upon authorities Surinder Kumar Sharma v. Makhan Singh, (2010-1) 157 P.L.R. 231 and Smt. Inderjit Kaur v. Sher Singh and others, (2010-1)157 P.L.R. 542. So, the prayer has been made for setting aside the impugned order dismissing the application under Order 6, Rule 17 CPC and for following the proposed amendment. 9 Learned counsel for the respondent has supported the order of the trial Court. It is submitted that alleged cheques relate to the period 21.9.1994 to 15.5.1995. The alleged receipt is dated 17.7.1995. The suit was filed on 20.9.1997 and as such the cheque dated 21.9.1994 has prima facie become time barred. By relying upon receipt dated 17.7.1995, the plaintiff wants to plead acknowledgement of the cheques. The present application under order 6 Rule 17 CPC has been filed on 29.7.2005 i.e. after a long period of about eight years of filing the suit. Even if, the application is allowed, the period of limitation shall come in the way of the plaintiff as the amendment shall relate to the date of application. 10 It is further contended that by exercise of due diligence the receipt can be pleaded as the same was well within the knowledge of the plaintiff at the time of filing the suit. 10 It is further contended that by exercise of due diligence the receipt can be pleaded as the same was well within the knowledge of the plaintiff at the time of filing the suit. 11 It is further submitted that pleading cannot be allowed to make at par with the evidence on the file. Vested legal rights have accrued in favour of the respondent. So, the same cannot be allowed to take away by the proposed amendment. 12 Learned counsel for the respondent has relied upon the following authorities:- (1) Bahadur Singh and another v. Avtar Singh, (2007-3)147 P.L.R. 628; (2)Prem Chand v. Chetan Doss, (2006-1)142 P.L.R. 604; (3) Sukhdev Singh v. Bal Krishan, (2005-1)139 P.L.R. 498; (4) Banta Singh Ganga Singh and others v. Smt. Harbhajan Kaur and others, (1974)76 P.L.R. 387 (F.B.); (5) M.B. Sirkar and Sons v. Powell & Co., A.I.R. 1956 Calcutta 630; (6) Khali and others v. Sadhaba Bewa and others? A.I.R. 1967 Orissa 58. (7) Mahant Prem Das Chela Mahant Bhola Dass v. Joti Pershad? A.I.R. 1971 Delhi 282; (8) Bhubaneswar Patel v. Janak Patel and others,A.I.R. 1976 Orissa 216 (9) Sait Tarajee Khimchand and others v. Yelamarti Satyam and others, A.I.R. 1971 Supreme Court 1865; (10) Baldev Singh and others v. Manohar Singh and another, A.I.R. 2006 S.C.832; 13 I have given my thoughtful consideration to the rival submissions made by learned counsel for the parties and have gone through the records of the case. 14 The learned trial Court has dismissed the application for amendment mainly on the following two grounds:- (i) that de novo trial would be started, if the amendment is allowed; and (ii) that the receipt has been produced after the period of limitation. 15 Both these grounds taken by the trial Court while dismissing the application are not available. Counsel for the plaintiff-petitioner has categorically made a statement at bar that he will not lead any evidence after the amendment as the receipt in question has already been proved on the file. The law of limitation would not attract as the basis of the suit is five cheques in question and not the receipt in question. The Honble Apex Court in recent authorities Sukhwant Singh and others case (supra) has held that even if the prayer for amendment of plaint is belated one, the application cannot be dismissed. The law of limitation would not attract as the basis of the suit is five cheques in question and not the receipt in question. The Honble Apex Court in recent authorities Sukhwant Singh and others case (supra) has held that even if the prayer for amendment of plaint is belated one, the application cannot be dismissed. The question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It has been further laid down in the said ruling that if after the amendment suit remains as that of original then amendment should be allowed. 16 On the facts of the present case, the amendment will only explain the existing facts that five cheques have been encashed by defendants which were issued by the plaintiff, and are the basis of the main suit. The basis of the suit and cause of action shall remain the same. The plaintiff has not prayed for extending the period of limitation on the basis of the receipt in question. Needless to say that the said receipts can only be looked into if the plaintiff is able to prove the same. 17 This Court again in Smt. Inderjit Kaurs case (supra) came to the conclusion that if the Court comes to the conclusion that amendment was essential for the just decision of the case and for sub-serving the ends of justice, then no matter, whether the application was moved at a belated stage, could not dissuade the Court from allowing the amendment. 18 The main thrust of learned counsel for the respondent is that by allowing the amendment, limitation for filing me suit would be deemed to have been extended. However, the said apprehension of counsel for the respondent is unfounded. The claim of the plaintiff is based upon the five cheques and not on the receipt. The receipt now sought to be pleaded is stated to be a consolidated receipt in respect of those cheques that is not the basis of the suit. So, the law of limitation shall not bar the Court to allow application under Order 6 Rule 17 CPC. Moreover, the defendant shall be at liberty to raise the plea of limitation which shall be decided by the trial Court. The receipt dated 17.7.1995 has already been exhibited by the plaintiff during the course of his evidence. So, the law of limitation shall not bar the Court to allow application under Order 6 Rule 17 CPC. Moreover, the defendant shall be at liberty to raise the plea of limitation which shall be decided by the trial Court. The receipt dated 17.7.1995 has already been exhibited by the plaintiff during the course of his evidence. Although receipt dated 17.7.1995 is supporting evidence in respect of cheques in question and that need not to be pleaded by the plaintiff but the defendant may, at later stage, raise an objection that the receipt in question has not been specifically pleaded and may argue that it should be ignored on that account. So in these circumstances, the application for amendment should be allowed. Needless to say that defendant shall be given an opportunity to rebut the said receipt by producing evidence, if any. The case is stated to be fixed for rebuttal evidence. From the bare reading of Order 6 Rule 17 CPC, it is crystal clear that Court may at any stage of the proceedings allow, either party to alter or amend his pleading which is necessary for the purpose of determining the real question in controversy between the parties. 19 During the course of arguments, learned counsel for the respondent has submitted that some of the cheques are encashed by the plaintiff himself. So, that fact can be refuted by the plaintiff by relying upon the said receipt that the amount of the cheque has been utilized by the defendant. The other argument advanced by the learned counsel for the respondent is that by exercise of due diligence, the receipt could be pleaded at an early stage and on that account application for amendment should be dismissed. 20 In authority Bahadur Singh and anothers case (supra) relied upon by respondents that the application under Order 6 Rule 17 CPC and Order 1 Rule 10 CPC was dismissed on the ground rights of purchasers during the pendency of suit shall be hit by principles of lis pendence. 21 In authority Prem Chands case (supra) the following principles established by various judicial decisions in respect of amendment of pleadings were discussed:- "a) The parties should not be allowed to substitute one cause of action or the nature of the claim for another as claimed originally or should also not be allowed to change the subject-matter or the controversy in the suit. b) The parties should not be allowed to introduce by amendment an inconsistent or contrary plea to negate the facts originally admitted through a party may be allowed inconsistent plea on admitted facts by way of amendment. c) The amendment should not cause prejudice to the other side which cannot be compensated by way of costs. d) The parties should not be allowed amendment of a claim or relief which is barred by law of limitation when amendment is sought to be made as it defeats a legal right which has accrued in favour of a party - However, this may be allowed only in very exceptional circumstances when the facts of the case so warrant". 22 In the present case, the plaintiff is not changing the cause of action or nature of the claim by way of amendment. No inconsistent or contrary plea has been sought to be made. The amendment sought was not prejudiced to the defendant as the case is still pending. The other principles of law, laid down in the said ruling is that party should not be allowed amendment of claim of or relief, which is time barred by law of limitation. As discussed above, receipt sought to be pleaded is not the cause of action in the present case. So, the law of limitation is not prima facie attracted in production of said receipt. 23 In authority Sukhdev Singhs case (supra) this Court has held that repeated amendment application should not be allowed in the Election petition. It has been further laid down that allowing pleading, to amend so as to bring infirmity with evidence is improper. 24 In the present case, no other amendment application was Said to be preferred by the plaintiff. Although the receipt in question has already been produced but it cannot be said that amendment has been sought to bring infirmity with that receipt. So, the above said authority is distinguishable. 25 Authority Banta Singh Ganga Singh and others case (supra) is distinguishable as in that case, amendment was sought that suit is bad for partial pre-emption at appellate stage. After passing a decree valuable rights have accrued in favour of the plaintiffs in that case. In the present case, the matter is still sub-judice and has to be decided. 25 Authority Banta Singh Ganga Singh and others case (supra) is distinguishable as in that case, amendment was sought that suit is bad for partial pre-emption at appellate stage. After passing a decree valuable rights have accrued in favour of the plaintiffs in that case. In the present case, the matter is still sub-judice and has to be decided. Authority M.B. Sirkar and Sons case (supra) is also related to time barred amendment and as such is not attracted to the facts of the present case. Authority Khali and others case (supra) is distinguishable as in that case arguments were already heard and then application for amendment has been filed. Authority Mahant Prem Das Chela Mahant Bhola Dass s case (supra) is also distinguishable as in that case amendment was sought to convert eviction suit into suit for possession. Resulting depriving the defendant of the plea of limitation. That fact is also not apparent in the present case. In authority Bhubaneshwar Patels case (supra), the amendment was sought for changing the foundation of suit and introducing distinct cause of action. No such facts are apparent in the present case. In authority Sait Tarajee Khimchand and others case (supra) it has been held that mere marking of a document does not dispense with its proof. There is no such dispute in the present case. In authority Baldev Singhs case (supra) amendment of written statement was sought and a new ground of defence for substituting or altering the defence. However, in that authority another ruling Estralia Rubber Case v. Dass Estate (P) Ltd., (2001)8 S.C.C. 97 was discussed in which it has been held that providing more details in respect of already brought fact, amounts only to an elaboration of the facts already narrated. In the present case also the receipt is only for elaboration of the facts, already narrated. 26 So, in view of the above discussion, the impugned order does not sustain the test of legal scrutiny. Consequently, the same stands set aside and application for amendment stands allowed on payment of Rs.2,000/- as costs. However, it is made clear that plaintiff shall not be allowed to lead any evidence after the amendment of plaint. Needless to say that defendant shall be entitled to rebut the receipt in question by leading evidence. A copy of this judgment be sent to the trial Court for strict complaint.