K.G. Venkatraman vs T. Sridevi

M. Karpagavinayagam, J.—The petitioner herein is the defendant.

The respondent herein filed a suit for recovery of the money on the basis of a promissory note executed by the petitioner. The petitioner filed a

written statement denying both execution of the promissory note and borrowing of any sum from the respondent. In the suit, trial commenced and

P.W.1 was examined in chief and cross. Thereafter, the respondent file an application to amend the date of the promissory note as 1.10.1996, as it

was wrongly mentioned in the plaint that the date of the promissory note was 12.10.1996. Opposing this application, the petitioner filed a counter.

However, the trial Court allowed the application for amendment. Hence, this civil revision petition.

Mr.R.Gandhi, the learned senior counsel representing the counsel on record, while assailing the impugned order, would submit that by the

amendment in the date of promissory note as 1.10.1996, while all the documents referred to in the suit and deposition of P.W.1 would show the

date of the promissory note as 12.10.1996, would change the entire cause of action and as such, the new case had been permitted to be

introduced and hence, the impugned order has got to be set aside.

On the other hand, Mr.N.Manokaran, the learned counsel appearing for the respondent/plaintiff would submit that the date mentioned as

12.10.1996 in the plaint is purely a type mistake and on the basis of the said pleading, P.W.1, the plaintiff/respondent has mentioned wrongly in his

deposition as 12.10.1996, whereas the documents filed along with the plaint would show the correct date as 1.10.1996 and as such, the impugned

order allowing the petition for amendment is perfectly justified.

Both the counsel would refer to various citations in support of their respective pleas.

Before considering the merits of the contentions urged by the counsel for the parties, let us now see the various guidelines given by the High

Courts as well as the Supreme Court with regard to the powers to be exercised by the Courts for allowing the amendment petition, while invoking

Order 6 Rule 17 of the Code of Civil Procedure, which are as follows:

(A) The amendment should not be refused on technical ground. The rules of procedure are intended to be a handmaid to the administration of the

justice and parties should not be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of

procedure.

(B) The Courts always give leave to amend the pleading of the party unless they are satisfied that the party applying was acting mala fide or that by

his blunder he has caused injury to his opponent, which may not be compensated by an order of costs.

(C) Under the cover of seeking amendment, it is not open to any party to substitute a new cause of action or to change the nature of the suit or to

substitute the subject- matter of the suit except when the Court thinks it just and necessary.

(D) The law is well settled that the discretion of the Courts in the matter of amendment of pleadings are to be liberally exercised. However, the

amendment should not be allowed which would result in injustice to other side.

(E) Even if a party or its counsel is inefficient in setting out its case initially, the shortcoming can certainly be removed generally by appropriate steps

taken by the party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions.

(F) Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent.

(G) Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary

conditions, such as payment of either any additional court fees, which may be payable or, of costs of the other side are complied with.

(H) The Court is required to see whether the amendment is necessary for arriving at just and fair decision for resolving the dispute between the

parties.

(I) If an error is committed by the litigant himself or by the advocate of the litigant in drafting the pleadings, the error can be rectified at any stage of

the suit. Simply because there is delay, the party cannot be denied a just relief on the ground that it is not in conformity with the rules of procedure.

(J) The delay on its own, untouched by fraud, should not be a ground for rejecting an application for amendment.

These are all the guidelines, which have been incorporated in the following decisions:

1) Sant Ram Agarwal Vs. Civil Judge, Mohanlal Ganj, Lucknow and others, ;

2) Ganeshi Rai and another Vs. First Additional District Judge, Ghazipur and others, ;

3) Lucy Narona Vs. Raghunath Jew Bije, ;

4) Ganesh Trading Co. Vs. Moji Ram, ;

5) Shanabhai Mangalbhai Patel and Others Vs. Bhagavanbhai Revabhai Patel and Another,

6) B.K.N. Narayana Pillai Vs. P. Pillai and Another, .

The reading of the above guidelines and the interpretations relating to the purpose and object of Order 6 Rule 17 C.P.C. as found in the above

decisions would reveal that the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly

when a suit on new case or cause of action is barred. But, it is well recognised that where the amendment does not constitute the addition of a new

cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be

allowed even after the expiry of the statutory period of limitation. The power to allow an amendment is undoubtedly wide and may at any stage be

appropriately exercised notwithstanding the law of limitation.

In the light of the above principles, let us now look at the facts of the present case.

The respondent filed the suit in January 1999 in O.s.No.22 of 19 99 alleging that on 12.10.1996 the defendant/petitioner borrowed a sum of

Rs.40,000/- from the plaintiff/respondent on executing a promissory note and on 28.10.1998, the plaintiff sent a registered notice demanding the

amount of promissory note and since he neglected to pay the amount after receipt of the notice, she filed the suit.

In the plaint, the plaintiff listed four documents. The first document is promissory note; the second document is the copy of the suit notice; the

third document is the served postal acknowledgement and the fourth document is the xerox copy of the promissory note.

The respondent/plaintiff was examined as P.W.1 on 10.10.2001. She was also cross-examined at length. On noticing that the wrong date has

been mentioned in the pleadings of the plaint as 12.10.1996, the respondent filed a petition on 16.10.2001 requesting for the amendment that date

may be corrected as 1.10.1996 instead of 12.10.1996 stating that the date has been wrongly typed. This has been objected to by the other party

that a new case is sought to be introduced by creating a new cause of action.

In the counter filed by the petitioner/defendant, it was opposed on the ground that all the documents mentioned in the plaint including the suit

notice would show that the promissory note was dated only as 12.10.1996 and as such, the nature of the suit is sought to be changed as

1.10.1996. However, the trial Court allowed the petition rejecting the objection raised by the petitioner.

At the outset, it shall be mentioned that all the relevant documents referred to in the plaint would indicate that the promissory note was only

dated 1.10.1996. The perusal of the promissory note would show that the corresponding date, namely 15th Panguni of Thathu, Tamil year is

mentioned. Similarly, the notice dated 28.10.1998 also would show that the promissory note is dated 1.10.1996.

Furthermore, the attestor and the scribe have put their signatures and the date as 1.10.1996 in the promissory note. Therefore, it cannot be

contended that it is a new cause of action which has been introduced belatedly. This is purely a drafting mistake on the part of the counsel

concerned.

It is to be stated that the counsel appearing for the plaintiff was careful enough to put the correct date of the promissory note in the notice as

1.10.1996. But, while drafting the plaint, wrong date was mentioned as 12.10.1996. On the basis of the pleadings, P.W.1 has given in the

deposition as 12.10.1996. This type of mistake cannot be termed to be a type mistake, but it shall be termed as a drafting mistake. Thus, it is

purely a drafting mistake which has been committed by the counsel concerned, while the plaint was drafted.

In this context, reference shall be made about the observation made by the Supreme Court in Ganesh Trading Co. Vs. Moji Ram, . The

Supreme Court would hold that even if a party or his counsel is inefficient in setting out his case initially, the shortcoming can certainly be removed

generally by appropriate steps taken by the party which must no doubt pay costs for the inconvenience caused.

This observation would apply to the present facts of the case in all fours. The counsel who is responsible for drafting of the plaint has not

applied his mind even though all the documents referred to in the plaint would indicate that the promissory note is dated 1.10.1 996. Therefore,

when a case of the plaintiff would suffer out of the negligence and inadvertence on the part of the counsel for the plaintiff, the Court has to certainly

exercise the wide powers granted under Order 6 Rule 17 C.P.C. to cure the defective pleading or drafting mistake.

A faint attempt has been made by the senior counsel appearing for the petitioner that the notice sent by the plaintiff to the defendant did not

contain the date as 1.10.1996.

As indicated above, in the counter also, it is stated that the said notice received by the defendant would contain the date only as 12.10.1996. If

that is the case of the defendant, he would have very well produced the said document either before the trial Court or before this Court to show

that the plaintiff did not come with clean hands.

When the senior counsel has been confronted by this Court by asking whether the said notice received by the defendant is available, he would

swiftly state that the said notice is not available with them, as it is lost. Under those circumstances, it cannot be said that the plaintiff has come to the

Court seeking for the amendment with unclean hands.

Unless the application is established to be a mala fide one, there is no reason to reject the prayer seeking for the amendment, especially when

this Court comes to the conclusion that the mistake crept in in the plaint as well as in the deposition of P.W.1 is not due to the Typist, but only due

to the non-application of mind of the counsel for the plaintiff while the plaint was drafted.

As the above decisions would observe that even when the party or its lawyer is negligent or inefficient or committing mistake in setting out the

case, the said mistake can certainly be corrected by the Court. But, due to the defective pleadings drafted by the Advocate for the plaintiff, the

inconvenience has been caused not only to the defendant, the trial Court as well as this Court, but also to the plaintiff. In my view, the most

affected party due to the defective pleading is the plaintiff alone.

These circumstances would drive me to impose costs on the counsel concerned, who drafted the plaint, to be paid to all the parties concerned

including the plaintiff. However, it may cause some embarrassment to the counsel for the plaintiff. So, this Court feels that it would be appropriate

to direct the counsel appearing for the plaintiff to pay costs to the Advocate Association and Bar Association of the Erode District. Accordingly,

the counsel for the plaintiff is directed to pay Rs.5,000/- each to both the Associations within one month from the date of receipt of this order.

Both the Associations may consider for spending the said amount for procuring the law books for their respective Libraries. After obtaining the

vouchers from the respective Associations, the same shall be filed before the trial Court by way of reporting compliance of this order.

With the above observations, the civil revision petition is dismissed. Consequently, C.M.P.No.1099 of 2002 is also dismissed.