Krishnaveni and Others vs Jeyaraman

Prabha Sridevan, J.—These revisions have been filed by defendants against the Order allowing the applications to amend the plaint.

Petitioners are the legal representatives of one Purushothaman. The respondent/plaintiff filed a suit for recovery of the amount due on three

promissory notes dated 15.7.2000, 27.7.2000 and 3.8.2000 respectively. The petitioners are defendants 1 to 3. In the plaint that was originally

filed, the respondent had pleaded that the first promissory note was executed by the late Purushothaman and the first petitioner, the second

promissory note was executed by late Purushothaman and the second petitioner and the third promissory note was executed by late

Purushothaman and the third petitioner. In the list of documents also these promissory notes were similarly described. A proof affidavit was also

filed by the respondent. Subsequently, he filed amendment applications seeking to amend the plaint averments by deleting the names of the second

and third petitioner and substituting it with the name of the first petitioner. Therefore, as per the amendment, it is only the first petitioner, who had

executed the three promissory notes along with late Purushothaman and not the second petitioner or the third petitioner.

Though this was resisted by the petitioners, applications were allowed by the Court below. Against that, these revisions have been filed.

Learned counsel for the petitioners would submit that no amendment could be filed to take away any right that has accrued in favour of the other

party. Further, he submitted that as per the amended Civil Procedure Code, every plaint shall be supported by an affidavit and an affidavit is the

sworn statement and it is not open to the respondent to alter what has been sworn by him on oath. Learned counsel would further submit that as

per the original plaint, the three promissory notes were executed by the second and third petitioners themselves along with their father. But, now

the case is that these promissory notes were executed only by the first petitioner-the mother of the second and third petitioners, alongwith the Late

Purushothaman and this, totally changes the case and as such the amendments cannot be ordered. Learned counsel relied on the following

judgments.

Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, , Radhika Devi Vs. Bajrangi Singh and others, 3. Jagan

Nath (Deceased) through Lrs. Vs. Chander Bhan and Others, 4. Gojabai Kolokhe Vs. Gangabai Ramchandra Pawar and Another, 5. B.K.N.

Narayana Pillai Vs. P. Pillai and Another, 6. Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, .

Reliance was also placed on Sopan Sukhdeo Sable and Ors., v. Assistant Charity Commissioner and Ors. 2004 (2) L.W. 800 to draw the

distinction between ''material facts'' and ''material particulars'' and how omission of a single material fact leads to an incomplete cause of action.

Learned counsel for the respondent would submit that it is only because there may be genuine lapses in the drafting of the pleadings, that CPC

itself provides for amendment, in this case, the amendment petitions have been filed as soon as the error was noticed. Learned counsel would also

submit that no accrued right had been taken away from the petitioners, because, according to the pleadings, the petitioners had made part-

payments towards the amounts due on the promissory note, the last such payment was made on 29.12.2002. Therefore, even if the respondent

were to withdraw the suit with leave to file a fresh suit, as such, the suit will be in time. Learned counsel would submit that if on the face of

promissory notes, it is apparent, that it is only the first petitioner who had executed the promissory notes along with her husband, late

Purushothaman, the amendment will not in any way prejudice the petitioner herein.

The case of part-payments made towards promissory notes is stoutly denied by the petitioners herein.

In the plaint, that is originally filed, the respondent had pleaded that the three promissory notes had been executed by the late Purushothaman

and the petitioners herein as stated in paragraph 1 of this order. But, in para 8 of the plaint, it is clearly stated that the amounts due on promissory

notes so executed by the late Purushothaman and the first petitioner were not repaid. Again in the ''cause of action'' paragraph of the plaint, the

respondent has stated that the promissory notes were executed by the late Purushothaman and the first petitioner. The relevant extracts from the

plaint are given below:

So even in the plaint that was originally filed, the respondent had referred to the promissory notes in plural as having been executed by the late

Purushothaman and the first petitioner. As regards the question, whether any right has accrued in favour of the petitioners, which is taken away by

the amendment, the answer is No. The respondent has pleaded part payment. It is always open to the defendants/petitioners to deny the case of

part payments towards the liability. But while considering the amendment, one has to take the pleadings as seen from the plaint. According to the

respondent, the third petitioner had made part payment, the last of such payment being in the year 2002. If so, the respondent will have time till

2005 to file the suit. Therefore, this objection will have to be rejected. If after trial, the Court holds that the part payments pleaded are not true,

then the consequences will follow. Therefore, the amendment sought for cannot be denied. It is in consonance with the rest of the pleadings. The

suit has been filed for recovery of the amounts due on the three promissory notes. The said instruments have been filed along with the plaint. And in

view of the above pleadings, it cannot be said that the amendment alters the nature of suit.

In the decisions referred to by both parties it has been held as follows:

""It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding.

Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to

court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot

blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific

provision or fair play is not violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just

circumstances. Nor can we contemplate any Limitation on this power to take note of updated facts to confine it to the trial Court.

Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another,

""Civil Procedure Code, 1908/Order 6, Rule 17- Amendment of Pleading -Seeking to take away right of the opposite party acquired by bar of

limitation cannot be allowed.

Radhika Devi Vs. Bajrangi Singh and others,

""Civil Procedure Code, 1908 - Order 6, Rule 17 - Amendment which if allowed would take away valuable right of the opposite party and

constitute an altogether a new plea, cannot be permitted.

Jagan Nath (Deceased) through Lrs. Vs. Chander Bhan and Others,

""Amendment of the plaint not only a new and inconsistent case but was put forward to get over bar of limitation and therefore, should not have

been allowed - Limitation Act, 1963, Article 97

Gojabai Kolokhe Vs. Gangabai Ramchandra Pawar and Another,

5.B. ""Civil Procedure Code, 1908 - Order 6., Rule 17 -Amendment of pleadings - Held, should be permitted where it would result in solution of

real controversy between parties, without altering original cause of action-Amendment cannot be claimed as a matter of right under all

circumstances, but Court ought not to adopt hypertechnical approach while deciding such prayers-Court''s approach should be liberal particularly

where any prejudice suffered by the other side can be compensated by costs.

D. Civil Procedure Code, 1908 - Order 6, Rule 17 -Amendment of pleadings-lapse of time, significance of - Where a legal right has accrued to a

party due to lapse of time an amendment resulting in the defeat of such a right should not be allowed - However, delay on its own, untouched by

fraud, should not be a ground for rejecting application for amendment and opposite party should be properly compensated with costs for the

delay.

B.K.N. Narayana Pillai Vs. P. Pillai and Another, of the decision Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, reads thus:

The law in this regard is also quite clear and consistent that there is no absolute Rule that in every case where a relief is barred because of limitation

an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not

to allow an amendment being discretionary the same will have to be exercise in a judicious evaluation of the facts and circumstances in which the

amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be

allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual

background of that case.

The decisions relating to what is ""cause of action"" in Navinchandra N. Majithia Vs. State of Maharashtra and Others, and Premier Distilleries

Pvt. Ltd., rep by its Director K. S. Sekar v. Sushil Distilleries, rep by its Partner N. Ganesan, Bangalore 2001 (3) CTC 652 really do not help the

petitioners in the facts of this case. As regards ''material facts'' it would appear that the necessary facts have been set out in the plaint. The mistake

in naming the second and third petitioners as co-executants of the promissory notes must be allowed to be rectified.

In the result, the Civil Revision Petition is dismissed. Connected miscellaneous petition is also dismissed. No costs.