M.V.S. Bhaskar vs Gutha Balaji Naidu and Another

Eswara Prasad, J.—The petitioner, who is the plaintiff in the suit, filed LA. No. 962/91 for amendment of the cause title by correcting the name of the 2nd respondent (2nd defendant) as "Etukuru Babu Naidu" stating that the name of the 2nd respondent was wrongly mentioned as "Gutta Babu Naidu", by mistake. This application was rejected by the Court below holding that the proposed amendment will change the nature of the case and the cause of action of the suit, while observing that it is open to the petitioner to file a fresh suit against the proposed party.

Sri P.S. Narayana, learned Counsel for the petitioner submitted that under a wrong impression and by mistake, the petitioner filed the suit by naming the 2nd respondent wrongly, as he was not aware of his name and he wanted the name to be corrected by amending the cause title and that the Court below ought to have allowed the amendment. Sri M. Ramachandra Reddy, learned Counsel for the first respondent submitted that the amendment cannot be ordered, as the petitioner is trying to bring in a fictitious person as second respondent, which will have the effect of changing the nature of the suit.

In Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, it was held that an application under Order 6 Rule 17 should not be refused on the ground that there was no averment therein mat the misdescription was on account of a bona fide mistake and on that ground the suit must fail. It was also held that when the suit is originally instituted by misdescribing the party, amendment of the plaint, substituting the real name should be granted, as the rules of procedure are intended to be the handmaid of administration of justice and a relief cannot be refused merely because of some mistakes, negligence, inadvertence or infraction of rules of procedure. In Kotta Pentaiah v. P. Laxmansa 1979 (2) ALT 14 this Court observed that Courts are given wide powers to permit corrections that may be needed due to accidental slips, inadvertence oversight, honest mistakes and even negligence, though Courts will not countenance applications for amendment which are mala fide or capricious or which result in injustice to the opposite party. It was further held that if an amendment 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, it can be refused.

The suit is filed for permanent injucntion against both the defendants. The name of the 2nd defendant was mentioned as Gutta Babu Naidu. The petitioner realised that the name of the 2nd defendant as wrongly mentioned and sought amendment to correct the name as ''Etukuru Babu Naidu''. Notice was ordered to the proposed party, who refused to receive the notice and he was called and set ex parte. In such circumstances, it cannot be said that the proposed party is a fictitious person. The suit was filed in the wrong name of the 2nd defendant and it cannot be said that the 2nd defendant is a fictitious person. Even if the cause title is corrected by correcting the name of the 2nd defendant, the nature of the suit will not change. The observations of the lower Court that a fresh suit can be filed against the proposed party will only lead to multiplicity of proceedings which springs out of the same cause of action as in O.S.No. 112/91. It is only to avoid such multiplicity of proceedings that Courts are empowered under Order 6 Rule 17 C.P.C. to grant amendment of plaints.

LA. No. 962/91 is allowed on condition of the petitioner paying costs of Rs. 500/- within three weeks from today, to Sri M. Ramachandra Reddy, learned Counsel for the respondents and file the receipt in the lower Court. In default of payment of costs, LA. No. 962/91 and this revision shall stand dismissed.

The revision is accordingly disposed. No order as to costs.