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Pathikonda Gopala Rao Vs. Nagiri Pedda Kitamma - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Pen. No. 2042 of 1952
Judge
Reported inAIR1955AP138
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 6, Rule 17
AppellantPathikonda Gopala Rao
RespondentNagiri Pedda Kitamma
Appellant AdvocateA. Bhujanga Rao and ;G. Ramachandra Naidu, Advs.
Respondent AdvocateR. Subramaniam and ;Sankara Rao, Advs.
Excerpt:
.....pendency of suit petitioner made application for amendment requesting to allow him to sue as manager of joint family and implead his brother as plaintiff - application rejected -respondent contended that by allowing such application respondent will loose its plea of limitation - according to order 6 rule 17 petitioner allowed for amendment unless it changes cause of action - impleading a new plaintiff and permission to sue as manager of joint family did not change cause of action - held, order of district munsif set aside and amendment application allowed. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of..........was opposed by the defendant on the ground that by permitting the plaintiff to sue as the joint family manager, he will lose valuable plea of limitatioin. the district munsif upheld the objection of thedefendant and dismissed the amendment application. this civil revision petition is filed as against that order.(2) the short point for consideration is as to whether by permitting the plaintff to sue as the manager of the joint family a new case is introduced or the cause of action is in any way altered. the language of or. 6r. 17, civil p. c., is very wide. it enacts that:'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.....
Judgment:
ORDER

(1) The civil Revision Petition of filed as against the order of the District Munsif of Madanapalle refusing to permit the amendment of the plaint in O. S. No. 139 of 1952. The suit was instituted by the plaintiff for the recoveryof moneys due from the defendant on dealings. The applicatioin for amendment was filed to permit him to sue as the manager of the joint family consisting of himself and his brother and also to implead his brother as the second plaintiff. The application was opposed by the defendant on the ground that by permitting the plaintiff to sue as the joint family manager, he will lose valuable plea of limitatioin. The District Munsif upheld the objection of thedefendant and dismissed the amendment application. This Civil Revision Petition is filed as against that order.

(2) The short point for consideration is as to whether by permitting the plaintff to sue as the manager of the joint family a new case is introduced or the cause of action is in any way altered. The language of Or. 6R. 17, Civil P. C., is very wide. It enacts that:

'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.'

As pointed out by Chandrasekhara Ayyar J., in -- 'Mokka Pillai v. Valavanda Pillai', AIR 1947 Mad 205 (A):

'There is nothing which prevents a Court, so far as I am able to see, from permitting persons suing in their individual capacity to sue as representative of a larger group, even during the stage of appeal.'

In -- 'Madhgouda Babaji v. Halappa Halappa', AIR 1934 Bom 178 (B), it was held that:

'in a suit brought by the manager of a joint Hindu family, the plaint need not contain a statement or indication to the effect that the plaintiff is suing as manager and that the interests of the defendant cane, however, be safeguarded by bringing all the co-parceners on the record of the suit.'

So, even withoiut an amendmeent, it is open to the plaintiff to establish that the amount is due to the joint familky and that the suit is filed by him in a representative capacity. But to avoid the technical objection raised by the defendant, the plaintiff has chosen to file the application for amendment and implead his brother as plaintiff 1. There is absolutely no change in the cause of action. No new case is sought to be put forward by reason of the amendment. The decision referred to by the District Munsif -- 'Ramachandra Naidu v. Kandaswamy Mudaliar', AIR 1949 Mad 416 (C), is really in favour of the petitioner herein. The observations of the learned Judge at pp, 416-417 support that view.The observations are as follows:

The learned counsel for the petitioner urged that really a suit by a person like the plaintff, who happens to be the manager of the joint family at the time he filed the suuit, would be a suit filed by him as manager, whether be described himself like that or not as in the ordinary case of a Hindu familky manager suing on a promissory note or even on a sale deed that no question of limitation of a fresh cause of action would arise and that the plaintiff's only intention in filing the amendment petition was to describe himself more fully and correctly and to have an issue framed regarding his being the family manager on the dateof the suit and not to enlarge the scope of the claim in the suit or to defeat any limitation right accruing to the defendant. The short answer to this is that if there was nothing else intended by plaintiff by the amendment than to describe himself more fully and correctly, he can do so, even in hisown deposition and i do not apprehend that the lower court will prevent him from describing himself as he pleases subject to cross-examination.'

(3) But having regad to the facts of the particular case that no proper notice was issued under S. 80, civil P. C., the learned Judge confimed the order of the trial court dismissing the application for amendment.

(4) The learned Advocate for the petitioner relied on the decision in -- 'Muthammal v. Guruswami', AIR 1935 Mad 158 (D), in support of the position that under O. 6 R. 17, Civil P. C., not only is the court given power, but is under a duty to allow all such amendments as will enable the real questions in issue to be raised provided the amendment will occasion no injury to the opposite party, except as can be sufficiently compensated for by costs or other terms to be imposed by the Order. As pointed out by the learned Judge at p. 159

'the kind of amendment, which the decisions say, ought oridnarily not to be allowed, is that which takes away an existing right from the defendant. That is one thing, but it is very different thing to say that no amendment should be allowed which would deprive the defendant of a bare right to raise a plea of limitation. The argument overlooks an important distinction and confuses a legal right accrued with a mere right to plead. The object of the decisions is to secure the former and not the latter right of the defendant.'

I follow the reasoning of the learned Judge and hold that courts of law should bear in mind the sacred duty of doing justice between the parties in accordance with the provisions of the Code of Civil Procedure. They do not exist for the purpose of punishing the parties. Rules of procedure are not framed to defeat justice. when the other party can be compensated by way of costs or other proper terms, the amendment ought not to be refused on the sole ground of delay or neligence.

(5) The District Munsiff also relied on the decision in -- 'Gopalakrishnamurhty v. Sreedhara Rao', : AIR1950Mad32 (E), in support of the proposition that as the facts sought to be introduced by the amendment were known to the plaintiff and were not contained in the original plaint, he oiught not to be permitted to amend his plaint. Having read the judgment, carefully, I think the lerned Judge did not purport to lay down any such proposition. What he held was tht the plaintiff ought not to be permitted to put forward a new case. On facts known to him at the time of filing the plaint. But if, the learned Judge intended to lay down that no amendment should be allowed on the basis of facts already known to a party prior to the filing of the plaint, or the written statement even though there is no change in the causeof action. I wish to respectuflly dissent from his view as it is opposed to principle. In the leading case -- 'Weldon v. Neal', (1887) 19 QBD 394(F) Lopes LJ., laid down the law in very clear terms and it is as follows:

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

I understand that in an unreported decisioin of the Madras High Court, Mr. Raghava Rao J., took a similar view. The grounds on which an amendment may be refused are clearly set out in Mulla's Civil Procedure Code at p. 596 and it is not right to add another new ground, namely, that an amendment should not be allowed if the facts shought to be introduced by way of amendment were known to the party at the time of filing the plaint or the written statement.

(6) The learned Advocate for the respondent relied on the decision in -- 'Lloyds Bank Limited v. Suromull Jalar', AIR 1926 Cal 1112 (G), in support of the proposition that I should not interfere with the discretion exercised by the District Munsif in refusing the amendment. The view of the Madras HighCourt laid down in 'Ramachandra Raju v. Venkata Subbayamma', AIR 1916 Mad 903 (H) is different & I prefer to follow the Madras view and hold that interlocutory orders refusing amendment or allowing amendment should be corrected at the earliest stage in revisioin and not in appeal afterthe parties incur heavy expenses, I therefore, do not propose to follow the view of the Calcutta High Court.

(7) The learned Advocate for the respondent laid great stress on the fact that the petitioner stated lies in his affidavit and that no indulgence should be shown to him. I agree with the court below that the petitioiner made false statements in the application, but that is, however, no ground for refusing an amendment. I do not think that the court is justified in refusing the amendment on that sole ground as a punishment for uttering lies.

(8) In the result, I set aside the order of the court below refusing amendment. The defendant will have his costs in the amendment application, but as he opposed this Civil Revision Petition, the petitioners is entitled to have the costs of the petition.

(9) V.R.B.Order set aside.


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