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Judgment
A.N. Venugopala Gowda, J.—The Petitioner is the Plaintiff and the Respondent is the Defendant in O.S No. 16185/2003 pending on the file of City Civil Court,. Bangalore. The suit is for passing of a decree for recovery of Rs. 1,49,002/- with interest and costs. By filing written statement on 05.02.2004, the Respondent has contested the suit. Based on the material pleadings, issues were framed and the suit was posted for trial
Petitioner filed I.A No. 2 on 27.11.2009 seeking permission of the court to amend the plaint, to incorporate the proposed plea and the additional prayer. The Respondent filed its statement of objections to I.A No. 2 on 02.02.2010. Finding I.A No. 2 to be devoid of merit, the trial court has rejected the same. Feeling aggrieved, the Plaintiff has filed this writ petition.
Sri S.D.N. Prasad, learned advocate appearing for the Petitioner contended that, LA No. 2 has not been considered in the correct perspective by the trial court and the order of rejection passed, in the facts and circumstances of the case, is irrational and illegal. Learned Counsel further contended that, a meeting was arranged by the Respondent during the pendency of the suit, in which, the Plaintiff came to know that the distributor has supplied the goods in contravention of the MOU and hence, to avoid multiplicity of proceedings the application was filed, which ought to have been allowed and the Plaintiff being permitted to incorporate the proposed amendment in the plaint.
Sri K.M. Basavaraj, learned Counsel appearing for the Respondent on the other hand by taking me through the objection filed to I.A No. 2 contended that the affidavit in support of I.A No. 2 is bald and that, I.A No. 2 was filed long after the issues were framed and the suit was posted for trial. Learned Counsel submitted that the proviso appended to Rule 17 of Order 6 CPC is attracted and hence the amendment was rightly not permitted. Learned Counsel pointed out that, the suit was instituted on 15.09.2003 and I.A No. 2 was filed on 27.11.2009 and the proposed amendment being a claim over and above the amount claimed in the suit, that too with interest from the date of suit is ex-facie barred hy limitation. Learned Counsel submits: that the proposed amendment introduces a new case and a new cause of action and hence the trial court was justified in rejecting I.A No. 2.
By filing I.A No. 2, the Petitioner proposed to incorporate the following amendment in the plaint :
Para No 16(a): That after the institution of (he above suit, the Defendant had arranged a meeting to sort out the issue amicably and several meetings took place in this connection. During the said meetings, the Plaintiff came to know that M/s. Shaknn Distributors has supplied goods in contravention of Memorandum of Understanding dated 26/27-07-2001 amounting to Rs. 273600/-. In view of the fact that M/s. Shakun Distributors by virtue of the aforesaid M.O.U had relinquished their right, the supplied had to be made by the Plaintiff and M/s. Shakun Distributors was only-entitled to 5% of the commission on the supplies made. As M/s. Shakun Distributors had made supplies in contravention of the M.O.U and in connivance with the Defendant, the Plaintiff is entitled for the said sum and the Plaintiff is entitled to claim the same from the Defendant.
(02) In prayer column: To add prayer (aa) after prayer
(a) and before prayer (b) :
(aa) direct the Defendant to pay to the Plaintiff a sum of Rs. 259920/- (Rs. Two Lakhs Fifty Nine Thousand Nine Hundred and Twenty only) together with interest @ 24% p.a from the date of the suit till the date of realisation
Keeping in view the rival contentions and the record of the writ petition, which I have perused, the point for consideration is :
Whether the trial court was justified in rejecting I.A No. 2?
Indisputedly, the suit was filed on 15.09.2003 and the written statement contesting the suit claim was filed on 05.02.2004. Issues were framed and the suit was posted for trial. I.A No. 2 was filed on 27.11.2009. The proviso appended to Rule 17 of Order 6 CPC lays down that, no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. Whether a party has acted with due diligence or not would depend upon the facts end circumstances of each case.
According to the plaint the cause of action for the suit arose with the purchase order dated 25.06.2001 being placed by the Respondent and an invoice being raised by the Petitioner on 09.08.2001. The invoice amount is Rs. 96,000/ . Interest at 24% has been claimed from 09.08.2001 till 14.09.2003 i.e., a day prior to the date of filing of the suit. To the said sum, there is addition of legal notice charges and damages. Thus, the suit was filed for recovery of Rs. 1,49,002/- together with interest at 24% p.a from the date of suit till realization. The affidavit in support of I.A No. 2 is bald. The date on which the alleged meeting took place after institution of the suit has not been stated. The Respondent has denied any such meeting having taken place. No material is produced with regard to the any meeting have been called and having taken place between the parties i.e., after filing of the suit. As against the claim of Rs. 1,49,002/-, the Petitioner proposed to claim Rs. 2,59,920/- together with interest at 24% p.a from the date of suit till the date of realization. The amendment proposed is ex-tacie barred by limitation, since the suit was filed on 15.09.2003 and written statement denying suit claim was filed on 05.02.2004 and I.A No. 2 was filed only on 27.11.2009. An amendment, which is ex-facie barred by limitation, that too in respect of a money claim has rightly been not permitted.
The claim made in the suit and the one proposed in I.A No. 2 are distinct and separate, The case stated in the plaint and the proposed amendment in I.A No. 2 being different, there is variance in the cause of action. The proposed plea and claim in I.A 2 introduces a new case and a new cause of action, The Petitioner has failed to establish due diligence. The Petitioner has not taken prompt steps in the matter. I.A No. 2 having been filed after commencement of trial, in the absence of proof of diligence has rightly been rejected by the trial court. The delay and laches on the part of the Petitioner in filing I.A No. 2 has not been explained.
By filing I.A No. 2, the Petitioner is seeking a higher amount than the one claimed in the suit. The Petitioner is claiming interest at 24% p.a on the amount proposed in I.A No. 2 from the date of filing of the suit till the date of realization which shows that cause of action for the amount claimed in I.A No. 2 has not arisen after the date of filing of the suit. There is ex-facie bar of limitation to the amount claimed in I.A No. 2. In the circumstances, I do not find any ground for interference in the impugned order. The impugned order is neither irrational nor illegal for being interfered with in the supervisory writ jurisdiction.
For the foregoing reasons, the writ petition fails and the same is dismissed, No costs.
The suit being one for passing of a money decree, pleadings being complete and the suit being at the stage of trial, the trial court is directed to decide the suit with utmost expedition and at any event within a period of six months.
To facilitate the trial court to decide the suit within the time allowed, the Petitioner shall adduce and complete its side of evidence within two months from today. The Respondent shall adduce and complete its side of evidence within two months from the date the Plaintiff''s closes its side of evidence. The trial court shall hear the arguments and decide the suit within the time indicated supra.