Kotta Pentaiah vs Puwar Laxmansa

Madhusudan Rao

This revision is directed against an order refusing permission to amend the plaint. The petitioner is the plaintiff who instituted OS, No. 2405 of 1975 in the Court of the First Assistant Judge. City Civil Court, Hyderabad, against the respondent for recovering a sum of Rs. 1.825--06 towards principal and interest due on khata. In the plaint, it was alleged that the defendant used to purchase cloth on credit from the plaintiff from time to time, that the defendant made some payments on some occasions and that, on 26-10-1973, when the balance was struck it was found that the defendant had to pay the plaintiffs sum of Rs. 1.422-56 P. The defendant filed a written statement contending that the plaintiff is not a cloth merchant, that he never supplied any cloth to him and that he (defendant) did not take any cloth from the plaintiff at any time on credit. He has also taken up several other pleas. In the light of the pleadings, seven issues were framed including an issue as to whether the plaintiff is a cloth merchant and another issue as to whether the defendant purchased from the plaintiff cloth on credit and made any payments on that account. The suit was filed in December. 1975. Written statement was filed on 6-7-1976 Issues were framed on 28-7-1976. The trial of the suit commenced on 7-3-1977 with the examination of the plaintiff''s Muneem as P.W.1. Through P. W. 1 the plaintiff filed Exs A-1 to A-9 Exs A-1. A-3 A-5 and A-7 are the entries in the ledger account in the name of the defendant, while Exs A-2. A-4 A-6 and A 8 are the respective English translations. Ex. A-9 is an office copy of the registered notice issued by the plaintiff to the defendant prior to the suit. Ex. A 10 is the returned envelope containing the original of Ex. A-9. After the examination of P.W. 1, P.W. 2 was examined in Chief and the case was posted for cross-examination to the 18th of March, 1977. On this day, the plaintiff filed I.A. No. 314 of 1977 praying the Court for permission to amend the plaint by adding the word ''yarn'' after the word ''cloth'' in The second line of para 3 of the plaint and substituting the word ''yarn'' for the word ''cloth'' in the third line of para 3 of the plaint With the application, the plaintiff filed an affidavit affirming that the suit was filed only to recover the money due and payable by the defendant towards purchases of yarn on credit from time to time, that the plaintiff has two firms, one at Pan Bazar and the other at General Bazar and that, while yarn business is carriedon in the Pan Bazar shop, cloth business is carried in the General B azar" shop and further that "by accidental slip, instead of typing the word yarn. Cloth has been typed in the notice issued to the defendant prior to the filing of the suit and that the plaint was prepared only in accordance with the suit notice and that the mistake was not discovered until when P.W. 1 was examined in the Court. The plaintiff has further stated that the error was neither wilful nor deliberate and that it is the result of an accidental mistake.

The defendant opposed the application for amendment contending that, by the amendment, the plaintiff was introducing a new case and that, if the suit is for recovering the amount due on yarn, it is barred by limitation by the date of the amendment application. The learned District Munsif dismissed the plaintiff''s application holding that the omission to mention about ''yarn'' in the original plaint is not the result of any accidental slip and that, by allowing the amendment, the plaintiff would be permitted to change the entire basis of the claim. Stress was laid by the learned District Munsif on the fact that the plaintiff mentioned ''cloth'' only in the registered notice and did not make any attempt to amend the plaint soon after the framing of the issues even though the first and second issues directly draw the attention of the plaintiff to the kind of goods alleged to have been supplied by him.

Sri M. Ramamohan Rao, the learned Counsel for the petitioner, submits that the plaintiff is a businessman both in yarn and cloth, that, in the initial registered notice, Ex. A-9, there was unfortunately a mistake with regard to the claim towards cloth instead of towards yarn and that, when the plaint was drafted, it was drafted in the usual course in accordance with the allegations in the registered notice and that no special attention was given to this question until after the completion of the examination in chief of P.W. 2. He points out that the ledger accounts were produced in the Court along with the plaint and that these accounts, which bear the seal of the Court under the date of the suit i.e., 11-12-1975, are accounts only of the yarn business of the plaintiff and not the cloth business, Sri Ramamohan Rao says that the plaintiff produced the yarn accounts along with the plaint only in proof of his claim towards yarn and not towards cloth.

Sri Muralinarayan Bung the learned Counsel for the respondent on the other hand, contends that the plaintiff made a false claim for recovery of dues towards cloth and is now changing his stand for recovery of dues towards yarn, as he is unable to produce any evidence of defendant''s liability towards cloth It is argued by Sri Bung that, if the suit, which is instituted for the recovery of dues towards cloth is now allowed to be converted into a suit for recovery of dues towards yarn said to have been supplied long ago, the defendant would be deprived of the plea of limitation, which would be available to him in the event of the plaintiff filing a separate suit for recovery of the alleged amount due towards the supply of yarn.

The question is whether, in the circumstances of the case, the amendment sought can be permitted. Order 6, Rule 17 C. P. C. reads as follows :

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

A comparison of Order 6 Rule 17 with the previous analogous provision Section 53 of the old Code, reveals that the powers of the Court to allow amendments under the former provision are very wide. The proviso to Section 53 of the Old Code prohibiting the conversion by amendment of a suit of one character into a suit of another inconsistent character is omitted. Under the first part of the provision, it is discretionary for the Court to allow an amendment at any stage of the proceedings on such terms as the Court may deem just it is now well established that there is no injustice if the other side can be compensated by costs. Under the second part, all such amendments as may be necessary for the purpose of determining the real questions in controversy between the parties shall have to be made. The object of the rule is to enable to parties to place before the Court all what they want to plead, so that the Court may determine the real questions In controversy between the parties without any possibility for failure of justice. Another object is the avoidance of multiple suits. The power of amendment is vested in the Court in the larger interests of judicial administration, so that the Court can discharge its sacred duty of doing justice between the parties whose initial presentation of their cases may not always be complete or technically correct. Under the provision. Courts are given wide powers to permit corrections that may be needed due to accidental slips, inadvertent oversights, honest mistakes and even negligence, though the Courts will not countenance applications for amendment, which are malafide or capricious or which result in such injustice to the opposite party as compensated by costs. All procedural rules are essentially intended to secure proper dispensation of justice and it is expedient that they are made to serve and be subordinate to that purpose and it is therefore necessary for the Courts to be liberal and not to be unduly rigid while dealing with applications for amendment An amendment, which may be necessary for the purpose of determining the real question in controversy between the parties, should be allowed. It is only an amendment, which radically or fundamentally changes the character of the suit or introduces a new case which is totally inconsistent with the case initially put forward or involves a fresh or different cause of action that can be refused. Even amendments, which may take away a legal right, which accrued to the defendant by lapse of time, may be permitted, if such permission is necessary to prevent any abuse of the process or the Court or patent miscarriage of justice. In AIR 1921 50 (Privy Council) their Lordships of the Privy Council observed as follows:

If this be so, all that happened was that the plaintiffs through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. But if once it be accepted that they were attempting to establish those rights, there is no sufficient reason show for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a Plainer and less ambiguous manner. It may be noticed that in the claim the relief sought is so awkwardly set out that it would be quite open to the interpretation that they had in fact claimed presumption and not a declaration of the right, where it is not for the fact that the plaintiffs themselves appear for foolish reasons stoutly to have maintained that that was not their object. That there was full power to make the amendment cannot be disbuted and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, vet there are cases (see. for ex-ample Mohummed Zahoor Ali Khan Vs. Mussumut Thakooranee Rutta Koer (1867) 11 M. I. A. 467 (P.C) where such considerations are outweighed by the special circumstances of the case......

In Tildesley vs. Harper 1879 10 Ch. (D.) 393 at pp. 396, 397 Bram well L.J., observed:

My practice has always been to give leave to amend unless I have been satisfied that the party arriving was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise.........

However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by Costs.

In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., their Lordships of the Supreme Court have pointed out as follows:

It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice.

In Purushottam Umedbhai and Co. Vs. Manilal and Sons, the Supreme Court pointed out that an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court intermining the real question or issue between the parties should be allowed.

Again in Laxmidas Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala and Others, the Supreme Court pointed out that, where an amendment is sought which merely clarifies an existing pleading and does not in substance add to, or alter it, it had never been held that the question of a bar of limitation is one of the question to be considered in allowing such clarification of a matter already contained in the original pleading. Their Lordships further pointed out that leave to amend under Order, 6 Rule 17 C.P.C. may ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time, except in exceptional cases.

In Kurapati Venkata Mallayya and Another Vs. Thondepu Ramaswami and Co. and Another, the Supreme Court observed as follows:

We agree with the High Court that where there is a case of misdescription of the parties, it is open to the Court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case.

In A.K. Gupta and Sons Vs. Damodar Valley Corporation, it was observed by the Supreme Court that, in the matter of allowing amendment of pleadings, 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 the new cause of action is barred and that an amendment is to be allowed even after the expiry of the statutory period of limitation, if it does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts. It has further been clarified in this ruling that the expression ''cause of action'' does not mean every fact which is material to be proved to entitle the plaintiff to succeed. But the expression only means a new claims made on a new basis constituted by a new facts. It is only an amendment which would introduce a new set of ideas to the prejudice of any right acquired by the party by lapse of time that would be refused and not an amendment which does not introduce a new cause of action or a new set of ideas.

In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, the Supreme Court held that an amendment to correct a misdescription of the plaintiff made in the plaint on account of a bonafide mistake should not be refused on technical grounds. In paragraph 5 of the judgment, their Lordships observed:

Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake; negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting malafide, or that by his blunder, he bad caused injury to his opponent which may not be compensated for by an order of case.

However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.

In Mohammad Mustafa Vs. Sri Abu Bakar and Others, the Supreme Court has clearly pointed out that the Court should not take a highly technical view of the matter when a party seeks to amend his pleading and that the Court should consider all the facts and circumstances of the case and see whether the amendment should be permitted in the interests of justice or for a determination of all the questions in controversy between the parties.

The suit in the instant case is based on an account. It is filed to recover certain amount of money said to be due according to the balance struck on a particular day. It was alleged that the plaintiff supplied cloth to the defendant under the account, the plaintiff now seeks to correct his allegation of cloth to one of yarn. By allowing the amendment it cannot be said that the plaintiff is being permitted to introduce any such new case as would effect the fundamental character or structure of the suit. The plaintiff has instituted a simple suit for recovery of money due towards supply of certain goods. In the original plaint, he made a wrong description of the goods. Under the amendment, he seeks to describe the goods correctly. The cause of action is the same. The accounts relied on are the same. All the other allegations in the plaint are the same. The suit is one based on account and the mere fact that the plaintiff says that the entries in 53 of his account represent not the value of cloth as originally stated by him but represent the value of yarn, does not in any way change the fundamental character of the suit. The explanation of the plaintiff that the word ''cloth'' was typed for ''Yarn'' in the registered notice and that, subsequently, the plaint was written in accordance with the registered notice and further that the mistake was not discovered until after the examination-in-chief of F.W.2 Cannot be dismissed out of hand. It should be remembered that the plaintiff is both a yarn merchant and a cloth merchant, it is not improbable that the person, who was asked to type the registered notice to demand the amount due towards the supply of yarn, typed the notice incorporating a demand towards cloth supplied. It is common knowledge that, in the busy offices of senior Advocates simple suits for money are dratted by either the pleader''s clerks or the junior counsel generally in accordance with the allegations contained in the registered notices. It is also not unlikely that the Advocate, Sri Ramamohan Rao, did not apply his mind to the issues framed in the suit, but straightway examined the plaintiff''s witnesses knowing only the fact that the suit is for recovering the amount due on khata. It is significant that P.W. 1, the muneem of the plaintiff, spoke only about the yarn supplied to the defendant and filed Ex. A-1 to A-10 to support a claim for she amount due towards yarn supplied to the defendant. In the entire examination-in-chief of P.W. 1, there is not even a whisper about any supply of cloth to the defendant, even though the first and second issues were directed against the plaintiff not being a cloth merchant and the defendant not taking any cloth on credit from the plaintiff. It should also be remembered that the khata books containing the ensures, Exs. A-1, A-3, A-5 and A-7, refer only to the yarn business of the plaintiff and these books were produced by the plaintiff in the Court along with the plaint on 11-12-1975 when he instituted the suit. If the plaintiff really intended to lay a claim towards the supply of cloth, it is difficult to understand as to why he produced before the Court accounts indicating defendant''s liability for supply of yarn. No doubt, as contended by Sri Muralinarayana Bung, the learned Counsel for the respondent, the plaintiff''s suit in enforcing the defendant''s liability towards the supply of yarn would be barred by time if the plaintiff is to file a separate suit on the date of the amendment application but this cannot be a ground to refuse permission to the plaintiff to amend the plaint. This is a clear case where the plaintiff instituted a suit well within time for recovery of the amount due to him for certain goods supplied and he is seeking to amend the wrong description of the goods at a late stage of the case. The negligence on the part of the plaintiff may be a good ground to award costs to the defendant, but it cannot be a ground to deny the plaintiff the right to agitate which alone he has instituted the suit.

For the reasons recorded, the order of the First Assistant Judge dismissing the petitioner''s application for permission to amend the plaint is set aside and the petitioner is permitted to amend the plaint as prayed for by him in the application on the condition that be pays Rs. 100/- costs to the respondent within two weeks from today. The revision is thus allowed. If the costs are not paid before the stipulated time, the revision petition stands dismissed without further orders. No order in regard to the costs of this Revision.