Y. Srinivasulu Reddy vs N. Pola Reddy and Another

Ramesh Madhav Bapat, J.—The petitioner herein was the original defendant in O.S. No. 106/1987 filed by the plaintiffs-respondents against the petitioner herein in the Court of the Subordinate Judge, Gudur.

It appears from record that parties to this suit led evidence and the matter was posted for judgment. At that stage, the plaintiffs-respondents filed I.A. No. 185/1995 with a request to allow them to carry out certain amendment which was proposed in the aforesaid I. A. On hearing both sides, it appears, the said I.A. was allowed. Against the said Order, the present revision petition is preferred by the defendant-petitioner.

In order to appreciate the real controversy between the parties, it is necessary to narrate a few facts.

It appears from record that the plaintiffs-respondents filed a suit against the defendant for recovery of Rs. 60,390.05 due under a promissory note. The plaintiffs in the suit have pleaded that the defendant was working in the P & T Department at various places. He required money for his contract work. During the years 1981 to 1983, the 2nd plaintiff lent him an amount of Rs. 63,000/- in instalments. It was orally agreed that the defendant should repay the same with simple interest at the rate of 12% per annum towards end of October, 1984. Dispute arose between the defendant and the 2nd plaintiff, whereupon the 1st plaintiff mediated in the matter and arrive data figure of Rs. 55,915/- as due by the defendant to the 2nd plaintiff as on 11-10-1984 which was accepted by the defendant. The Mediator asked the defendant to execute a promissory note in favour of the 2nd plaintiff for the said amount. But the defendant did not like to execute the promissory note in favour of the 2nd plaintiff and offered to execute promissory note in favour of the 1st plaintiff which was acceptable to all. Thus, the promissory note in question came to be executed in the name of the 1st plaintiff. But the amount due under the promissory note was not repaid. The plaintiffs jointly filed a suit against the defendant for recovery of the said amount. They prayer clause in the said suit reads as under:

"to grant a decree against the defendant for the suit amount of Rs. 60,390.05 with future interest on Rs. 51287.77 till realisation in favour of the 2nd plaintiff."

It appears from record that parries to the suit led evidence and at the time of the arguments, it was realised by the plaintiffs that it would be of no use passing the decree in favour of the 2nd plaintiff and, therefore, amendment was sought by the plaintiffs to the effect that decree be passed in favour of the 1st plaintiff and the said I.A. was allowed. Against the said order, the present revision is filed by the defendant.

The learned counsel appearing on behalf of the revision petitioner-defendant submitted that the learned Judge erred in allowing the said amendment. It was emphatically stated by the learned counsel for the petitioner herein that as a matter of fact the consideration if at all is passed, it was passed by the 2nd plaintiff and not by the 1st plaintiff. The amendment sought by the plaintiffs changes the nature of the suit and also attempts to bring the claim of the plaintiffs within limitation and, therefore, such amendment cannot be allowed. The learned counsel for the petitioner relied upon a ruling given by a Division Bench of the Supreme Court in K. Raheja Constructions Ltd. Vs. Alliance Ministries and others, . It was held by the Lordships as follows:

"Amendment of plaint-Suit filed for relief for permanent injunction restraining respondents from alienating, encumbering, selling, disposing of, or in any way dealing with property-Subsequently amendment of plaint sought for relief of specific performance of contract-plea that amendment was necessary in view of subsequent knowledge about permission being granted by Charity Commissioner to alienation-Not tenable-Plaintiff having expressly admitted in plaint that defendants have refused to a bide by terms of contract-Relief for specific performance ought to have been asked in original suit itself-Relief of specific performance cannot be allowed to be added after lapse of seven years, being barred by limitation."

With this ruling on record, the learned counsel for the petitioner herein submitted that as per the plaint averment, the consideration was passed by the 2nd plaintiff-respondent. The pro note in question was executed in favour of the 1st plaintiff-respondent without consideration and, therefore, this is an attempt by the plaintiffs to bring the suit within the limitation period. It was further submitted by the learned counsel for the petitioner that it is a legal position in the CPC under Order 6 Rule 17 that the amendment can be allowed at any stage even if the matter is pending in the Supreme Court provided that the amendment does not change the nature of the suit and does not make an attempt to bring the suit within the period of limitation and, therefore, the amendment ought to have been dismissed by the learned Judge.

The learned counsel for the petitioner also relied upon a ruling given by a Division Bench of the Supreme Court in Muni Lal Vs. The Oriental Fire and General Insurance Company Ltd. and another, . It was held by the Lordships as follows:

''''Civil Procedure Code (5 of 1908), Order 6, Rule 17-Specific Relief Act (47 of 1963), Section 34 proviso-Amendment of plaint-Permissibility-Truck owner, on not returning of truck, merely asking for declaration that he is entitled to payment for loss of truck but not seeking consequential relief of payment of quantified amount-Permission sought in appeal to amend plaint to include unsought relief-Relief becoming time barred at that stage-Plaintiff, appellant cannot be permitted to amend plaint after suit for relief in question was barred by time during pendency of proceedings."

Applying the ratio laid down by the Lordships in the aforesaid ruling to the present set of facts, the learned counsel for the petitioner herein submitted that, such amendment ought not to have been allowed by the learned Judge and prayed that the order passed in I .A. No. 185/95 in O.S. No. 106/87be set aside.

While rebutting the aforesaid argument, the learned counsel for the plaintiffs-respondents submitted that by filing the said I.A., the nature of the suit is not at all changed. It was further submitted that there was also no attempt on behalf of the plaintiffs-respondents to bring the suit within the period of limitation which was already time barred. The learned counsel for the plaintiffs-respondents relied upon a ruling given by a Division Bench of the Supreme Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, . Relevant paras 7, 8 and 11 read as under :

"(7) It is not in dispute that at the date of the application for amendment a suit for a money claim under the contract was barred. The general rule, no doubt, 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: Weldon v. Neale (1887) 19 QBD 394. But it is also 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. See Charan Das v. Amir Khan 47 Ind App 255: (AIR 1921 PC 50) and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., . 8. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith, (1884) 26 Ch. D 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupachand v. Rachappa Vithoba ILR (1909) Bom. 644, approved in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, .

This, therefore, seems to us to be pre-eminently a case for allowing the amendment. There authorities also lead us to the same view. In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , a suit for damages for conversion was be amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand being already in the plaint. In Charan Das''s case 47 App. 255: (AIR 1921 PC 50) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had inspite of warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore, a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong advice. Punishing of mistakes is, of course, not administration of justice."

The learned counsel for the petitioner also relied upon rulings in Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, , Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, and Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and Others, . I have gone through all the rulings cited by the respective parties. Now, this Court has to consider as to whether by filing LA. No. 185/95, the nature of the suit is changed and as to whether the facts mentioned in the rulings cited by the learned counsel for the petitioner herein change the nature of suit in order to bring the claim of the plaintiffs within the period of limitation.

Considering the ruling cited by the learned counsel for the petitioner, this Court has no hesitation in coming to a conclusion that in the ruling cited to above the plaintiff had not sought relief at all and after about 7 to 8 years additional relief was sought an prayed for amendment. The Hon''ble Supreme Court held that at the belated stage such amendment, in order to bring the claim which was omitted cannot be allowed and, therefore, the amendment sought for by the plaintiff therein came to be dismissed.

Now, we have to see as to whether any attempt is made by the plaintiffs-respondents to bring the time barred suit within the period of limitation. For mat purpose, we have to go back to the pleading - that is the plaint filed by the plaintiffs-respondents.

It appears from record that, originally two plaintiffs filed the suit. It was categorically stated by the plaintiffs that the defendant was a Contractor. He needed money to meet with expenses and, therefore, the 2nd plaintiff had lent money on the condition that the defendant would return the amount with interest at the rate of 12% per annum by end of October, 1984. Dispute arose between the defendant and the 2nd plaintiff. Finally, on mediation, the defendant agreed to execute promissory note for Rs. 55,915/- not in the name of the 2nd plaintiff, but offered to do so in favour of the 1st plaintiff. This being the background of litigation, both the plaintiffs joined in the suit and the suit was "filed. It was categorically pleaded by both the plaintiffs that as a matter of fact, the consideration was passed by the 2nd plaintiff. But the promissory note was executed by the defendant in favour of the 1st plaintiff. Probably, the promissory note was executed by the defendant in favour of the plaintiff No. 1 so as to uphold his ego which was hurt by the 2nd plaintiff by raising a dispute over a money transaction. But, when the dispute was settled by the Mediator, the defendant agreed to execute promissory note in the name of the plaintiff No. 1. It was categorically stated in the pleading that as a fact the consideration under the promissory note did not pass from the plaintiff No. 1. All the transaction and litigation between the parties was narrated in the body of the plaint itself. The plaintiffs did not try to hide anything from the Court as well as or from the defendant. The plaintiffs at a belated stage thought that their claim, though genuine, may not be granted as there was a small defect in the plaint prayer clause and, therefore, the amendment was sought.

Considering the facts in this case, this Court holds that the claim of the plaintiffs was not at all time barred when the amendment application was made. In fact, the suit was filed by the plaintiffs jointly. Even without amendment, the Court could grant decree either in favour of the plaintiff No. 1 or in favour of the plaintiff No. 2 as per the evidence which might have been laid before it. As a matter of fact, the amendment application was not at all necessary, but any way the amendment application was filed and it was allowed by the learned Judge. Looking to the facts in this case this Court holds that the plaintiffs did not try to bring any new idea or relief so as to change the nature of the suit. They also did not make any attempt to bring their claim within the period of limitation.

Under these circumstances, this Court holds that the learned Judge rightly allowed the amendment application No. 185/1995. There is not merit in the revision petition. Hence, it is accordingly dismissed. No costs. The parties are, however, directed to remain present before the Court of Subordinate Judge, Gudur, on 19-4-1996 for seeking appropriate directions from the said Court regarding the adjourned date.