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Baishnaba Charan Acharyya and anr. Vs. Nityananda Satapathy - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 20 of 1967
Judge
Reported inAIR1969Ori34
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBaishnaba Charan Acharyya and anr.
RespondentNityananda Satapathy
Appellant AdvocateAshok Mukherji, Adv.
Respondent AdvocateM. Patra, Adv.
DispositionRevision dismissed
Cases ReferredChandra Shekhar v. Gobinda Chandra
Excerpt:
.....condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 6. the plaint in this case is clearly based on the hand-note itself as constituting the cause of action. that in such a case the amendment does not change the nature of the suit has clearly and forcefully been (held ?) in sarafalli v. if on the evidence the court would come to the conclusion that there was an agreement between the parties that on the promissory note being.....orderg.k. misra, j.1. the suit was based on a hand-note executed by defendant 1 for rs. 301 on 20-6-62 as the loan was not repaid despite repeated demands. defendant 1 contested the suit alleging that he did not receive the loan nor executed the promissory note. his case was that he and the plaintiff used to take advances from one mankchand company for supplying jute. plaintiff settled the accounts regarding the profits accruing to defendant 1. plaintiff wanted the defendants to do jute business with him. as defendant 1 did not agree a false suit was brought on the forged hand-note.2. the learned munsif held that the hand-note was inadmissible in evidence as it was insufficiently stamped. he rejected plaintiff's prayer for amendment of the plaint and dismissed the suit after trial. the.....
Judgment:
ORDER

G.K. Misra, J.

1. The suit was based on a hand-note executed by defendant 1 for Rs. 301 on 20-6-62 as the loan was not repaid despite repeated demands. Defendant 1 contested the suit alleging that he did not receive the loan nor executed the promissory note. His case was that he and the plaintiff used to take advances from one Mankchand Company for supplying jute. Plaintiff settled the accounts regarding the profits accruing to defendant 1. Plaintiff wanted the defendants to do jute business with him. As defendant 1 did not agree a false suit was brought on the forged hand-note.

2. The learned Munsif held that the hand-note was inadmissible in evidence as it was insufficiently stamped. He rejected plaintiff's prayer for amendment of the plaint and dismissed the suit after trial. The learned Subordinate Judge in appeal allowed the amendment and remanded the suit for fresh hearing with full opportunities to the parties to lead further evidence. Against the order of remand, the civil revision has been filed.

3. There is no dispute that the hand-note is insufficiently stamped and is inadmissible in evidence. It is affixed with two revenue stamps worth one anna each when one-anna stamps were not in vogue. The suit came up for trial on 22-4-66. After the cross-examination of D. W. 1 was over, a petition for amendment of the plaint was filed. The amendment was sought for making out a case that the suit was based on the original cause of action on the oral loan and that the hand-note was executed in evidence thereof.

4. The only question urged in revision is that the amendment changes the nature of the suit and was filed after the close of the evidence and should not have been allowed.

5. The questions arise for consideration:

(i) Does the amendment change the nature of the suit?

(ii) If it does not, should it be rejected merely on the ground of delay?

6. The plaint in this case is clearly based on the hand-note itself as constituting the cause of action. The amendment, if allowed, would result in the claim being based on the loan itself as constituting the cause of action. The two are indisputably distinct causes of action. That in such a case the amendment does not change the nature of the suit has clearly and forcefully been (held ?) in Sarafalli v. Mahasukhbhai, AIR 1933 Bom 476. The Division Bench declared the law, laid down to the contrary in Burjorji v. Harmusji, AIR 1932 Bom 394 as wrong. Sir John Beaumont, C.J. was a member of the Bench and observed thus--

'It is quite true, as the learned Judge points out, that the cause of action on the promissory note is distinct from the cause of action on the loan which gave rise to the promissory note. But it is equally true that those two distinct causes of action can be set up in the same suit by the original plaint. Authority for that proposition, if needed, is to be found in Sadasuk Janki Das v. Koshen Pershad, AIR 1918 PC 146 where the proposition is stated by Lord Buckmaster who delivered the opinion of the Privy Council. If two alternative and inconsistent claims can be combined originally in the plaint, I see no reason on principle why they should not be combined at a later stage by amendment. Whether in any particular case the amendment is asked for at too late a stage, or in circumstances which make it unfair to grant the leave, is another matter, but as a mere proposition of law I see no reason why an amendment of this nature should not be allowed at the trial or even in appeal'.

This decision and the aforesaid Privy Council case were relied upon in Chandra Shekhar v. Gobinda Chandra, AIR 1966 Orissa 18. See para 6 of the judgment. The facts in AIR 1966 Ori 18 were slightly different from those of the present case. There the plaint itself gave an indication that the suit was based on the original cause of action though in a confused manner. There was, therefore, no difficulty in accepting the prayer for amendment to make the matter clearer. That does not, however, establish the converse that amendment would not be allowed where the plaint did not give any indication of the original cause of action. The position does not become different even where the plaint was based on the hand-note as constituting the cause of action and an amendment is sought at a later stage to base the claim on the original loan as constituting the cause of action.

7. A caution was, however, struck in the Orissa case to the following effect:

'Allowing amendment of the plaint does not, however, mean that the plaintiff's suit on the original cause of action, if proved, must necessarily succeed. If on the evidence the Court would come to the conclusion that there was an agreement between the parties that on the promissory note being dishonoured or becoming inadmissible in evidence, the plaintiff cannot bring a suit on the original cause of action, then only the plaintiff's suit would fail and not otherwise.'

The aforesaid Orissa decision, therefore, clearly laid down the principle on the basis of which the amendment is to be allowed. The learned Subordinate Judge correctly appreciated the law.

8. The next question for consideration is whether the amendment application, filed after the close of the trial, should be allowed. On this question no hard and fast rule can be laid down as was pointed out in the aforesaid Bombay decision. It would vary in the facts and circumstances of each case. The redeeming feature in this case is that the plaintiff in his evidence made out a case that the loan was advanced by an oral agreement and the hand-note was taken in evidence thereof. In para 2 of his deposition, he states thus--

Defendant 1 took the loan for the joint family business. In evidence of the suit loan defendant 1 executed the hand-note in my favour.

It is not necessary at this stage to refer to his cross-examination or other evidence as to whether this part of the case is true. It is sufficient to say that even with the opening of the trial plaintiff was alive to the case in respect of which the amendment is sought. It has been repeatedly held that delay by itself is not a ground for refusing amendment. If in this case the plaintiff would not have breathed a word in his evidence regarding the oral loan as constituting the cause of action, the amendment might have been rejected on account of extraordinary delay when the trial was over. The learned Subordinate Judge had a correct approach in allowing amendment despite delay.

9. In the result, the civil revision failsand is dismissed. As the plaintiff filedthe amendment application after theclose of the trial and is responsible for theharassment to the defendants on accountof the fresh trial, he is directed to pay aconsolidated cost of Rs. 150 (rupees onehundred and fifty) to the defendants before the trial begins failing which the amendment application and the suit wouldstand dismissed.


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