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N. Shivanna Vs. J.B. Thimmlah - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 350 of 1962
Judge
Reported inAIR1964Kant56; AIR1964Mys56; (1963)2MysLJ263
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 6, Rule 17
AppellantN. Shivanna
RespondentJ.B. Thimmlah
Appellant AdvocateE. Kanakasabapathy, Adv.
Respondent AdvocateC. Siddaiah, Adv.
Excerpt:
.....of the defendant's contention that the suit should fail on the ground of inadmissibility of the suit pronote and to put him into a position of disadvantage which cannot be compensated by costs. after hearing both the learned advocates, i am satisfied that in the circumstances of the present case, the lower court has committed a grave error in having permitted the plaintiff to amend the plaint. in the para pertaining to the cause of action also, it had been clearly alleged that the cause of action for the suit arose on 26-10-1957. it was only alter the defendant raised a contention to the effect that the pronote was inadmissible in evidence on the ground that the pronote was insufficiently stamped, that the plaintiff thought of coming forward with a story that the amount had been given..........the plaintiff and which has been allowed by the civil judge of tumkur, in a suit on a pronote. the suit pronote which was dated 26-10-1957, was for a sum of rs. 5000/- and was alleged to nave been executed by the defendant. while resisting the claim of the plaintiff, the defendant also pleaded that the suit pronote, having been insufficiently stamped, was inadmissible in evidence. thereafter the plaintiff filed an application seeking for permission to so amend the plaint as to base his suit on what was called the original cause of action. the plaintiff sought to plead that the sum of rs. 5000/- had been actually borrowed by the defendant on 19-10-57 and that as the stamp was not available at that time the defendant agreed to execute the pronote and that he subsequently did so on.....
Judgment:
ORDER

1. This revision petition arises out of an application for amendment made by the plaintiff and which has been allowed by the Civil Judge of Tumkur, in a suit on a pronote. The suit pronote which was dated 26-10-1957, was for a sum of Rs. 5000/- and was alleged to nave been executed by the defendant. While resisting the claim of the plaintiff, the defendant also pleaded that the suit pronote, having been insufficiently stamped, was inadmissible in evidence. Thereafter the plaintiff filed an application seeking for permission to so amend the plaint as to base his suit on what was called the original cause of action. The plaintiff sought to plead that the sum of Rs. 5000/- had been actually borrowed by the defendant on 19-10-57 and that as the stamp was not available at that time the defendant agreed to execute the pronote and that he subsequently did so on 26-10-57. This application for the amendment of the plaint, was strenuously resisted by the defendant. The learned Civil Judge having permitted the amendment sought for by the plaintiff, the defendant has now come up in revision.

2. Sri E. Kanakasabhapathi for the petitioner has contended that the allegations made by the plaintiff in his application for amendment of the plaint were wholly, inconsistent with the plaint allegation that it was on 26-10-1957 that tie consideration was paid and the pronote was executed. The petitioner's learned Advocate also points out that in the cause of action para in the plaint, it is stated that the cause or action arose on 26-10-1957. It is contended by him that no good grounds had been made out by the plaintiff for his being permitted to amend the plaint in the manner sought for by him. One other ground urged by Sri Kanakasabhapathi is that this application for amendment having been made on 26-2-1961, a suit based on the so-called original cause of action if it had been filed on that date, would have been tarred by limitation. It is also contended that the effect of allowing an amendment of that nature would be, to take away the very basis of the defendant's contention that the suit should fail on the ground of inadmissibility of the suit pronote and to put him into a position of disadvantage which cannot be compensated by costs.

Sri C. Siddiah, the learned Advocate for the respondent has argued that the power to allow amendment under Order 6 Rule 17 of the C.P.C. should be liberally exercised and that instances are not lacking in which even though the Court found that the suit pronote was inadmissible in evidence, yet, the plaintiff has been permitted to fall back on the original cause of action and to amend the plaint for basing his suit on the original cause of action. After hearing both the learned Advocates, I am satisfied that in the circumstances of the present case, the lower Court has committed a grave error in having permitted the plaintiff to amend the plaint.

3. From a perusal of the order made by the learned Civil Judge, the impression that is created on one's mind is that the learned civil Judge was considerably influenced by the fact that the plaintiff would stand to lose such a large sum of Rs. 5000/- if he was not permitted to amend the plaint. The fact that the plaintiff ran the risk of losing a considerable sum of money ought not to have influenced the lower Court, if the other relevant circumstances in the case did not justify permission being granted to the plaintiff for the amendment of the plaint.

In the case of Sabjan Saheb v. Abdul Shukoor Saheb, reported in 36 Mys LJ 812, this Court while dealing with a case in which the question of allowing an amendment or the plaint in a suit based on an inadmissible pronote arose for consideration, has observed as follows:

'Even apart from the question of limitation, the allowing of an amendment is a matter of judicial discretion, and the learned Munsiff appears to have proceeded on the basis that, in every case where the suit promissory note is insufficiently stamped, a subsequent amendment basing the suit on the original loan was permissible. Obviously, it cannot be so. It would depend upon the circumstances of each case whether the amendment sought for is necessary for the purpose of determining the real question in controversy between the parties.'

There cannot be any inflexible rule as to whether in such suits plaintiffs should, or should not, be permitted to amend the plaint so as to base the suit on the original cause of action. It is a matter which will depend, entirely on the facts and circumstances of each case. If the plaintiff in such a suit succeeds in placing before the Court such material as will satisfy the court, that the loan itself was not simultaneous or contemporaneous with the execution or the suit pronote and that the loan was a transaction which was anterior to and independent of the suit pronote, then, he may succeed in getting permission to so amend the plaint as to fall back on the original cause of action. But, where the payment of the consideration is contemporaneous with the execution of the pronote, indicating thereby that the intention of the parties was that the pronote itself should be the sole evidence of the transaction, then, If the pronote turns out to be inadmissible in evidence, the plaintiff ought not to be allowed to amend the plaint for taking a fresh plea to the effect that the loan was independent of the pro note.

4. In the present case, there was nothing in the plaint to indicate that the sum of Rs. 5000/- had been paid to the defendant as a loan which was anterior to and independent of the suit pronote. On the other hand, the allegations in the plaint were to the effect that it was on 26-10-1957 that the loan was given to the defendant and the pronote was executed. In the para pertaining to the cause of action also, it had been clearly alleged that the cause of action for the suit arose on 26-10-1957. It was only alter the defendant raised a contention to the effect that the pronote was inadmissible in evidence on the ground that the pronote was insufficiently stamped, that the plaintiff thought of coming forward with a story that the amount had been given to the defendant on 19-10-1957 and that the pronote was executed subsequently on 26-10-1957.

The application filed by the plaintiff for the amendment of the plaint, was read out to me, by Sri Kanakasabhapathi. I find that there is absolutely no explanation given by the plaintiff, as to why it was not alleged in the plaint that the money was lent on 19-10-1957, though the suit pronote is dated 26-10-57. If really this amount had been lent by the plaintiff on 19-10-1957, one would naturally expect the plaintiff when he filed the suit for the recovery of such a considerable sum as this, to have alleged all the relevant circumstances pertaining to the loan and the execution of the suit pronote. When the suit pronote as well as the consideration receipt bore the date 26-10-1957, it was necessary for the plaintiff to have explained in the plaint Itself, all the relevant circumstances, if the loan had been given not on that date but one week previously, that is, on 19-10-1957. Even in the application for the amendment, there is no satisfactory explanation forthcoming as to what prevented the plaintiff from disclosing in the plaint that the money had been actually lent on 19-10-1957. On the other hand, in para 2 of that application the following allegations are made:

'2. Now a plea has been raised by defendant that the suit on demand pronote is insufficiently stamped. Hence it has become necessary for the plaintiff to fail back on the original cause of action for the recovery of the loan with interest thereon as stipulated on that date, i.e., 19-10-1957 when the loan was actually taken by the defendant'.

No explanation is forthcoming as to why a receipt was not taken on 19-10-1957, if the loan was given on that date. It is clear that it is only in order to meet the contention raised by the defendant in regard to the inadmissibility of the suit pronote, that the plaintiff has come forward with the story of the loan having been anterior to and independent of the suit pronote. The allegations made in this application for amendment do not show the existence of any reasonable explanation for the plaintiff having filled to set out In the plaint itself the fact that the loan had been advanced on 19-10-1957.

5. Sri Siddiah, in the course of his arguments has referred to the Supreme Court decision of Pirgonda Hongonda Patil v. Kalgonda Shidgonda paw reported in : [1957]1SCR595 . It Is no doubt true that in that case even at such a late stage as that of the appeal before the High Court, the party had been allowed to amend his pleading. But the exercise of such a discretion, in favour of that party, appeared to the Court, to have been justified in the circumstances of that particular case. In the course of their judgment, the learned Judges of the Supreme Court have referred with approval to the statements of Batchelor J. in Kisandas Rup-chand v. Rachappa Vithoba, |LR 33 Bom 644, which are as follows:

'All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties ..... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, 'as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeds to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could, not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore sun remains the same; can the amendment be allowed without injustice to the other side, or can it not?'.

Applying the test suggested in the above observations of Batchelor J., it seems to me that the amendment ought not to have been allowed, in the circumstances of the present case. On the date on which this application for amendment was made, i.e., on 26-2-1961, a suit based on the alleged original cause of action would have been clearly barred by limitation. Permitting the plaintiff to amend the plaint, in such circumstances, so as to base the cause of action on the alleged loan of 19-10-1957, would undoubtedly result in an injustice to the defendant. In the circumstances of the case, the story put forward in the application for amendment that the loan had been, advanced on 19-10-1957 and that the pronote could not be executed because no stamp was available at that time, is one the truth of which Is open to the grave suspicion. I am satisfied that, in the circumstances of the present case, the plaintiff ought not have been allowed to amend the plaint in this manner, so as to deprive the defendant of his main ground of defence namely that the suit pronote was inadmissible in evidence.

If the lower Court had properly appreciated all these circumstances, without being swayed by sympathy towards the plaintiff because he was running the risk of losing a considerable amount, there cannot be any doubt that the plaintiff's application for amendment would not to have been allowed.

6. Sri Siddiah sought to contend that even though another view than that taken by the learned Civil Judge may be possible, this Court ought not to interfere in revision with the discretion that has been exercised by the learned Civil Judge. I am unable to agree with this argument. When the erroneous exercise of the discretion by the Civil Judge has resulted in an injustice to the defendant and he has been placed in a position of disadvantage for which he cannot be adequately compensated in costs, the order passed by the learned Civil Judge ought not to be allowed to stand.

7. For the reasons above stated, this revision petitionis allowed, the order passed by the learned Civil Judgeis set aside and the plaintiff's application for amendmentof the plaint shall stand dismissed; if the amendment hasbeen actually made, the same shall be struck off so as torender the plaint to its original position. The lower Courtwill proceed to dispose of the suit in accordance with law.Having regard to the circumstances in the case, each partyis ordered to bear his own costs in this revision petition.

8. Revision allowed.


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