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Yalavarthi Gopala Rao Vs. Bommisetty Seshaiah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 95 of 1974
Judge
Reported inAIR1975AP155
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantYalavarthi Gopala Rao
RespondentBommisetty Seshaiah
Appellant AdvocateP. Raja Rao, Adv.
Respondent AdvocateM. Venkateswara Reddy, Adv.
Excerpt:
.....suit for relief barred by time no ground to disallow amendment. - - 1,500/- he executed the suit promissory note in favour of the plaintiff on 7-10-1968 agreeing to pay the same with interest at 12% per annum to the plaintiff or his order by the end of february, 1969. after the due date at the end of february, 1969 the plaintiff demanded the defendant many a time for the payment of the amount, but the defendant failed to comply with the demand. but it would be clearly out of time if it were to be filed on the date the amendment petition was filed. but it is 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..........cash on the same day and for the balance of the sale consideration of rs. 1,500/- he executed the suit promissory note in favour of the plaintiff on 7-10-1968 agreeing to pay the same with interest at 12% per annum to the plaintiff or his order by the end of february, 1969. after the due date at the end of february, 1969 the plaintiff demanded the defendant many a time for the payment of the amount, but the defendant failed to comply with the demand. therefore the plaintiff got issued a registered notice on 16-11-1971 demanding payment of the amount. but the defendant refused to receive the notice nor did he make the payment. therefore, the suit is filed for recovery of the amount due under the suit promissory note. the suit is filed on 25-2-1972 within three years from the end of.....
Judgment:
ORDER

Ramachandra Raju, J.

1. The plaintiff in O. S No. 314 of 1972 on the file of the court of the 1st Additional Dist. Munsif, Vijayawada, is the petitioner. The revision is directed against the order of the lower court refusing to amend the plaint. The suit is filed on the basis of a promissory note which was held to be not admissible in evidence on the ground that it was insufficiently stamped. The amendment sought for is to base the suit on the original cause of action. The Lower Court refused the amendment on the ground that on the date of the amendment petition the suit would be barred by time and if the amendment is to be allowed at that stage it would work to be an injustice to the defendant by depriving him of a valuable defence based on limitation which cannot be compensated by costs. In coming to that conclusion the lower court mainly relied on a decision of this court in Yarlagadda Veeraiah v. Kawali Mining Corporation, : AIR1973AP170 on the ground that the facts in the present case are more or less similar if not identical with the facts of that case.

2. All the facts necessary to base the suit on the original cause of action have already been pleaded in the plaint as originally filed. The allegations made in the plaint are as follows: The defendant purchased from the plaintiff a flour and oil mill on 7-10-1968 for a sum of Rs. 4,500/- and paid a sum of Rs. 3,000/-in cash on the same day and for the balance of the sale consideration of Rs. 1,500/- he executed the suit promissory note in favour of the plaintiff on 7-10-1968 agreeing to pay the same with interest at 12% per annum to the plaintiff or his order by the end of February, 1969. After the due date at the end of February, 1969 the plaintiff demanded the defendant many a time for the payment of the amount, but the defendant failed to comply with the demand. Therefore the plaintiff got issued a registered notice on 16-11-1971 demanding payment of the amount. But the defendant refused to receive the notice nor did he make the payment. Therefore, the suit is filed for recovery of the amount due under the suit promissory note. The suit is filed on 25-2-1972 within three years from the end of February, 1969, the time stipulated in the promissory note for payment.

3. The promissory note was not payable on demand. Therefore as provided under Article 29, Item 'b' of Schedule A to the Indian Stamp Act the stamp duty payable on a bill of exchange, which is higher than the duty payable on a promissory note payable on demand has to be paid. But as the promissory note was stamped only with stamp duty as on a promissory note payable on demand it came to be stamped insufficiently and accordingly became inadmissible in evidence. When it was so found by the lower court, the petitioner came forward with the amendment petition to fall back on the original cause of action.

4. From the facts as stated above, it is clear that the promissory note was executed only as a collateral security for the amount due to the plaintiff towards the balance of the sale consideration after payment of some amount in cash on the same date towards the sale price of the flour and oil mill which the plaintiff sold to the defendant. The case of the plaintiff-petitioner is that according to the original understanding the balance of sale consideration of Rs. 1,500/- was to be paid by the end of February, 1969, and the same stipulation was made in the promissory note. If that is so, the suit would be within time on the date it was filed even if it is to be on the basis of the original cause of action. But it would be clearly out of time if it were to be filed on the date the amendment petition was filed. The question for consideration is whether, in the circumstances of the case, on the ground that the suit would be out of time if it was to be filed on the date of the amendment petition, the amendment has to be refused.

5. In A. K. Gupta and Sons v. Damodar Valley Corporation, : [1966]1SCR796 the Supreme Court was dealing with a case where the appellant-company before it filed a suit against the respondent-corporation claiming only a declaration that on a proper interpretation of a clause in the contract it was entitled to an enhancement of 20 per cent over the tendered rates. One of the issues in the suit was as to the maintainability of the suit in the form in which it had been framed. When the matter went up to the High Court, it held that the suit was not maintainable because of the terms of the proviso to Section 42 of the Specific Relief Act, 1877. Therefore, the appellant sought leave of the High Court to amend the plaint by adding an extra relief that a decree for Rs. 65,000/- or such other amount which may be found due on proper account being taken may be passed. The amendment having been refused by the High Court, the matter was taken to the Supreme Court. It was not in dispute that on the date of the application for amendment, the suit for money claim under the contract was barred. It is under these circumstances the Supreme Court said that :

'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. But it is 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.'

Reference was made by the Supreme Court to Charan Das v. Amir Khan. AIR 1921 PC 50 and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., : [1957]1SCR438 . The Supreme Court has further stated that the principal reasons that have led to the rule mentioned above 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 and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought by the amendment can be said in substance to be already in the pleading sought to be amended. The Supreme Court has further said that the expression 'cause of action' in the present context does not mean every fact which it is material to be proved to entitle the plaintiff to succeed. If it were so no material could ever be amended or added, and, of course no one would want to change or add any immaterial allegation by amendment. That expression for the present purpose only means a new claim made on a new basis constituted by new facts. That is the only possible view to take. _Any other view would make the rule futile.

6. On the facts before it, the Supreme Court said that the amendment does not introduce a new cause of action or a new case. The suit was on a contract. It sought the interpretation of a clause in the contract only for a decision of the rights of the parties under it and for no other purpose. It was the contract which formed the cause of action on which the suit was based. The amendment sought to introduce a claim based on the same cause of action, i.e. the same contract. It introduces no new case or facts. Even the amount of the claim now sought to be made by the amendment was mentioned in the plaint in stating the valuation of the suit for the purpose of jurisdiction. The respondent had notice of it. Under these circumstances, the Supreme Court said that it is pre-eminently a case for allowing the amendment.

7. : [1957]1SCR438 is another case dealt with by the Supreme Court. There a suit for damages for conversion was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, on the ground that the necessary facts were already in the plaint.

8. In AIR 1921 PC 50 the Privy Council allowed an amendment adding a claim for possession after a suit for such claim had become barred when in the suit as originally filed the claim was only for a declaration of right to pre-empt. Further in that case the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got.

9. In the present case also there is no change of 'cause of action' in the context it has to be understood as mentioned by the Supreme Court, nO new set of facts are sought to be introduced by way of the amendment. On the facts already stated only the new claim for the same amount is made, it being the amount due to the petitioner from the defendant towards the balance of the sale price of the flour and oil mill sold by him to the defendant. That amount also is the consideration for the suit promissory note. It is true that the petitioner committed a mistake in not basing the suit originally on the original cause of action by not realising that the suit promissory note is not admissible in evidence on account of it being insufficiently stamped. As rightly observed by the Supreme Court, the objects of courts and the rules of procedure is to decide the rights of parties and not to punish them for their mistakes. When the relief claimed by way of the amendment is based on the facts already disclosed in the plaint and not on any facts which were not there already, it amounts to no more than a different or additional approach to the same facts and it cannot be said to be based on 'new cause of action' in the context it has to be understood. In such a case the opposite party would be having notice of all the facts already. Therefore no prejudice would be caused to him. In the present case, the defendant knew that the suit is filed to obtain the payment of the amount which was due from him to the petitioner towards the balance of the sale consideration of the flour and oil mill purchased by him from the petitioner. Under these circumstances, the defendant cannot legitimately claim that the amendment would prejudicially affect his rights. The mere fact that on the date of the amendment petition, the suit would be barred by time for the relief claimed without there being any other prejudice which would work against the defendant cannot be a ground for disallowing the amendment. In the decision Y. Veeraiah v. K. M. Corporation, : AIR1973AP170 of this court the facts are different. There, the suit even on the original cause of action, viz., the original promissory note (in that case the suit was originally filed on the renewal of promissory note which was found to be inadmissible in evidence) was barred by time not merely on the date of the amendment petition but also on the date on which the suit was originally filed. Therefore, that case has no parallel to the facts of this case.

10. In the circumstances of the case, I think it is pre-eminently a fit case for allowing the amendment. Accordingly the civil revision petition is allowed and the application for amendment is ordered as prayed for. The petitioner is entitled to his costs. Ten days time from the date of the receipt of this order by the lower court is granted for carrying out the amendment.


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