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Andhra High Court · body

2022 DIGILAW 1115 (AP)

Kanupuru Mohan Reddy v. Gangula Sudarsana

2022-10-21

B.S.BHANUMATHI

body2022
ORDER : This civil revision petition, under Section 115 CPC, by the 2nd defendant, is directed against the orders, dated 17.02.2020, allowing IA.No.1235 of 2019 in OS.No.175 of 2015 on the file of the Court of Principal District Judge, Nellore, filed under Section 151 and Order VI Rule 17 CPC read with Rule 28 of the Civil Rules of Practice. 2. Heard Sri T. D. Phani Kumar, learned counsel representing Sri Harinath Reddy Soma, learned counsel appearing for the revision petitioner/plaintiff and Sri Nagaraju Naguru, learned counsel for the 1st respondent/plaintiff. The parties shall hereinafter be referred to as the plaintiff, defendant No.1 and defendant No.2 for the sake of convenience and clarity. The 2nd defendant is shown to be not a necessary party to this revision petition. 3. The case of the plaintiff in the affidavit filed in support of the request for amendment of the plaint, in brief, is as follows : The 1st defendant borrowed a sum of Rs.7,00,000/- on 12.02.2011 from the plaintiff for his business and other needs and executed the suit promissory note for the said amount in favour of the plaintiff on the even date, agreeing to repay the same with compound interest at the rate of 24% per annum with yearly rests on 09.06.2013. The 1st defendant paid a sum of Rs.10,000/- to the plaintiff towards part payment and endorsed the said part-payment on the back side of the suit promissory note. Further, on demand of the plaintiff, the 1st defendant, on 13.02.2011, deposited his original title deed, dated 09.06.1997, executed by Vemareddy Sujatha, in favour of the 1st defendant relating to the suit schedule property and made an endorsement on the back side of the suit promissory note to the said effect. Due to typographical mistake, the date of registered sale deed ‘09.06.1997’ was wrongly typed as 09.07.1997 in the plaint and plaint affidavit. Further, the date of deposit of original title deed on 13.02.2011 made by the 1st defendant which was endorsed on 09.08.2013, was also not mentioned in the plaint and the plaint affidavit due to oversight. There is no willful default or negligence on the part of the plaintiff and his counsel. Hence, the present application has been filed. Further, the date of deposit of original title deed on 13.02.2011 made by the 1st defendant which was endorsed on 09.08.2013, was also not mentioned in the plaint and the plaint affidavit due to oversight. There is no willful default or negligence on the part of the plaintiff and his counsel. Hence, the present application has been filed. (b) The proposed amendments sought for by the plaintiff are as follows: i) Delete the 2nd and 3rd sentences in Paragraph No.3 of the plaint and substitute the same as follows: ‘As demanded by the plaintiff to give security for discharge of debt 1st defendant on 13.02.2011 has deposited his property original title deed, i.e., registered sale deed, dated 09.06.1997 executed by Vemareddy Sujathamma in favour of the 1st defendant in relation to the plaint schedule property and thus created equitable mortgage in favour of the plaintiff. Further, the 1st defendant paid a sum of Rs.10,000/- to the plaintiff on 09.08.2013 towards part payment of suit promissory note debt and on 09.08.2013 endorsed the said part payment along with mentioning the fact of deposit of his registered original title deeds on the backside of the suit promissory note and as stated supra the 1st defendant created equitable mortgage over the plaint schedule property in favour of the plaintiff. It is humbly submitted that the original registered sale deed, dated 09.06.1997 handed over by the 1st defendant to the plaintiff was misplaced.” ii) Add the following after first sentence in the paragraph No.4 of the plaint: “On 13.02.2011 when 1st defendant deposited his title deed, dated 09.06.1997 with the plaintiff”. iii) Delete second and third sentences in Paragraph No.2 of plaint affidavit and substitute the same as follows: “humbly submitted that as demanded by me on 13.02.2011 the first defendant has deposited with me his original registered sale deed dated 09.06.1997 executed by one Vemareddy Sujathamma in his favour. On 09.08.2013, the 1st defendant paid a sum of Rs.10,000/- to me towards part payment of suit promissory note debt and while endorsing the said part payment on the backside of the suit promissory note he has also mentioned about the deposit of original title deed made by him on 13.02.2011 creating equitable mortgage in my favour over the plaint schedule property. The said original registered sale deed, dated 09.06.1997 handed over to me by the 1st defendant was misplaced.” 4. The said original registered sale deed, dated 09.06.1997 handed over to me by the 1st defendant was misplaced.” 4. The case of the 2nd defendant in the counter, in brief, is as follows: The plaint schedule property originally belonged to the 1st defendant, having purchased the same under registered sale deed bearing documents No.816/97 and was in possession and enjoyment over the same. The 2nd defendant purchased the plaint schedule property and other property from the 1st defendant under the registered sale deed bearing document No.1759/2012, dated 29.10.2012. At the time of execution of the registered sale deed, dated 29.10.2012, the 2nd defendant was informed of the sale deed bearing No.816/1997, dated 09.06.1997, relating to the plaint schedule property was misplaced and whenever the same was traced, the 1st defendant would hand over the same to the 2nd defendant. Believing the words of the 1st defendant, the 2nd defendant purchased the schedule property and has been in possession and enjoyment over the same. The revenue authorities also issued pattadar passbook and title deed in his favour. In view of the attitude of the brother of the 1st defendant, the 2nd defendant filed a suit in O.S.No.410 of 2014 on the file of the Court of the I Additional Junior Civil Judge, Nellore, for grant of permanent injunction and during the pendency of the said suit, the plaintiff, in collusion with the brother of the 1st defendant and taking advantage of the registered sale deed, dated 09.06.1997, executed in favour of the 1st defendant, fabricated a promissory note, dated 19.02.2011, with an endorsement, dated 09.08.2013, made on the backside of the promissory note, and got filed the present suit with false allegations. Even as per the contents of the alleged endorsement, dated 09.08.2013, made on the backside of the promissory note, dated 12.02.2011, the alleged registered sale deed was deposited on 09.08.2013. The said endorsement is not binding on this respondent, as the same is subsequent to 29.10.2012, the date of purchase of the schedule property by this defendant. The plaintiff filed the present application seeking amendment of the plaint deviating his original case which would change the basic structure of the suit by adding new allegations. The application is not maintainable and is liable to be dismissed. 5. On contest, the trial Court partly allowed the petition of the plaintiff. Therefore, the 2nd defendant is before this Court. 6. The application is not maintainable and is liable to be dismissed. 5. On contest, the trial Court partly allowed the petition of the plaintiff. Therefore, the 2nd defendant is before this Court. 6. The revision petitioner/2nd defendant while reiterating his pleaded case inter alia, urged as follows : The Court below exercised its jurisdiction beyond the scope of the application. The application was filed after a lapse of four years from the date of institution of the suit without assigning valid reasons seeking amendment at a belated stage. The order of the trial Court was erroneous as the amendment sought is only to rectify the typographical errors in paragraph Nos.2 & 3 of the plaint with regard to dates whereas the trial court allowed the application permitting to delete and add sentences in para Nos.2 & 3 of the plaint. There is no clarity in the proposed amendment sought for. At any rate, the amendment which was sought at a belated stage ought not to have been allowed. 7. According to the plaintiff, the proposed amendments are necessitated, in view of the mistake in the date of the registered sale deed, which was wrongly typed as 09.07.1997 instead of 09.06.1997. To this extent, the defendants have no objection. But the plaintiff further seeks amendment of date of deposit of title deed securing debt by mortgage by changing the date ‘09.08.2013’ to ‘13.02.2011’. This amendment is seriously opposed by the defendants in view of the defence pleaded in their written statement. 8. Initially, the plaintiff pleaded that the loan was advanced on 12.02.2011 under a promissory note executed on that day and later on, as demanded by the plaintiff, to give security for discharge of debt, the 1st defendant secured the property by deposit of original title deed, i.e., registered sale deed, dated 09.06.1997, on 09.08.2013. An endorsement was made by paying Rs.10,000/- on that date. However, by way of amendment, the plaintiff proposes to change the date of deposit of title deed as 13.02.2011 instead of 09.08.2013. This change has a material bearing on the defence taken. An endorsement was made by paying Rs.10,000/- on that date. However, by way of amendment, the plaintiff proposes to change the date of deposit of title deed as 13.02.2011 instead of 09.08.2013. This change has a material bearing on the defence taken. In the written statement of the 2nd defendant, it is clearly pleaded that the 1st defendant sold the very same property to the 2nd defendant under a registered sale deed bearing document No.1759 of 2012, dated 29.10.2012, and that at the time of execution of the registered sale deed on 29.10.2012, the 1st defendant informed the 2nd defendant that the registered sale deed bearing No.816 of 1987, dated 09.06.1997, was misplaced and whenever it is traced he would handover the same to the 2nd defendant and believing such version of the 1st defendant, the 2nd defendant took possession of the property and has been in enjoyment of the same since then. 9. After filing the written statement, petition seeking amendment of the plaint was filed. If the very same property was given in security under mortgage to the plaintiff on 13.02.2011, the right of the 2nd defendant under registered sale deed would be subject to mortgage, whereas if the deposit of title deed to the plaintiff is on 09.08.2013, the mortgage becomes invalid as by then, the 1st defendant lost his right over the property having sold the same to the 2nd defendant. Thus, the date of deposit of title deed alleged to be given by the defendant No.1 to the plaintiff has a material bearing on the suit relief of recovery of the amount from the property secured by way of mortgage. Under these circumstances, without there being a just reason for the plaintiff not being able to take such plea when initially the plaint was filed, it is erroneous for the trial Court to allow such amendment to defeat the right of the 2nd defendant. 10. The trial Court in its short order has not disclosed application of its mind to the consequences of the amendments proposed. Moreover, there is no clarity in the order passed by the trial Court. Therefore, it is apropos to record the order of the trial Court herein below for better appreciation: “POINT: The proposed amendment is for deletion of second and third sentences in Para-3 of the plaint, and to substitute the same with the proposed amendment. Moreover, there is no clarity in the order passed by the trial Court. Therefore, it is apropos to record the order of the trial Court herein below for better appreciation: “POINT: The proposed amendment is for deletion of second and third sentences in Para-3 of the plaint, and to substitute the same with the proposed amendment. Substantially, the date of the original sale deed is changed to ‘9.6.1997’ in the proposed amendment. It is also stated that the original sale deed is misplaced. Another proposal is to add one sentence in cause of action para of the plaint, with regard to deposit of title deeds on 13.3.2011. The third proposal is to amend the plaint affidavit in Para-2. 5. As far as the proposed first and second amendments are concerned, they are in the plaint, and since basically it is only a question of putting the correct dates and correcting the typographical errors, the petition is allowed. As far as the amendment to the plaint affidavit is concerned, it does not amount to a pleading, and it cannot be changed. 6. In the result, the petition is allowed in part, to the extent of amendment of plaint, but not the plaint affidavit.” 11. What is allowed as the first and the second amendment is not specific and what is allowed in part is not clear. Though on a plain reading, it appears to be very clear, but in its application, it gives raise to so much of ambiguity. Moreover, the trial Court was under the impression that it is only a mere typographical error in the dates mentioned and they can be permitted to be allowed. The first amendment could be, in its view, amendment in date as ‘09.06.1997’; and, the 2nd amendment could be, in its view, the date of deposit of title deed as 13.02.2011. One can understand from a reading of the order that the first amendment, i.e., change in the date 09.06.1997 alone is permitted while not allowing the amendment with reference to the date of deposit of title deeds. The ground raised in the counter for opposing the change in the date of deposit of title deeds has not been discussed at all. The ground raised in the counter for opposing the change in the date of deposit of title deeds has not been discussed at all. The ambiguity is as to whether the trial Court allowed the amendment as to date of change of title deed or not, because there is another amendment also pleaded with reference to similar facts in the affidavit along with the application. Though the trial Court observed that an amendment to a plaint affidavit cannot be allowed as it is not a pleading, the ultimate result saying that the petition is allowed in part is ambiguous since whether it allowed the amendment of date ‘09.06.1997’ alone or it permitted amendment of date of deposit of title deed and consequent pleadings with reference to that date also while disallowing the amendment to the plaint affidavit alone. Under these circumstances, the order of the trial Court is liable to be set aside except to the extent of permitting the amendment of date as ‘09.06.1997’ instead of ‘09.07.1997’ as it is a typographical mistake. Though affidavit cannot be amended, filing of an additional affidavit explaining the necessary facts is not prohibited. 12. Accordingly, the Civil Revision Petition is allowed and the order, dated 17.02.2020, passed in I.A.No.1235 of 2019 in O.S.No.175 of 2015 is set aside except to the extent of permitting the plaintiff to make amendment of date ‘09.07.1997’ as ‘09.06.1997’ wherever it occurred in the plaint. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this revision shall stand closed.