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Krishnaswamy Iyer Vs. Ouseph Mathai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 285 of 1958
Judge
Reported inAIR1961Ker110
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 148 - Order 6, Rule 17
AppellantKrishnaswamy Iyer
RespondentOuseph Mathai
Advocates: T.S. Krishnamoorthi Ayyar, Adv.
DispositionRevision allowed
Cases ReferredHongonda v. Kalgonda Shidgonda
Excerpt:
- .....by him to his son and that there was absolutely no bona fides in presenting this petition. the learned judge has not discussed as to why the amendment was allowed. what is stated in the order is 'the argument advanced by the plaintiffs learned counsel is hot without force. after going' through the pleadings i think that the amendment can be allowed but only on terms'. an order was made that rs. 50/-should be paid as costs on 28-2-1958 and it was also ordered that if cost is not paid then the petition would stand dismissed with costs. 5. against this order the plaintiff has come up in revision challenging the order of 'the learned' judge in allowing the amendment petition. the first point that was raised was that admittedly the cost ordered had riot heen paid on 28-2-1958 add so the.....
Judgment:
ORDER

P. Govinda Menon, J.

1. This revision petition is filed against the order passed by the Addl. District Judge of Kottavam in C. M. P. 395/58 in O. S. 3/57 allowing an amendment of the written statement fifed by the defendant under Order 6 Rule 17.

2. The suit is for recovery of a sum of Rs. 30,000/- reserved in a registered sale deed. The defendant contended that the price in the sale deed hapoened to be .fixed because, of the misrepresentation made by the vendor and that the vendor subsequently agreed to accept a lesser amount of Rs. 10,000/- in full satisfaction.

3. The court tried a preliminary issue whether the defendant could prove by means of oral evidence, the agreement set up in the written statement and it was held that the agreement set up cannot be proved by parole evidence. By a petition dated 17-2-1958 the defendant wanted to raise an issue as to whether he could resile from the contract and get the value of improvements and the amount paid by him.

It was ordered that as there was no such plea in the written statement there was no need forframing such an issue. After that petition was dismissed the defendant has come forward with this petition to amend the written statement by-stating that the property was purchased due t'misrepresentation and that he is entitled to rescind the contract and get back the sale price and value of improvements.

4. The petition was opposed by the plaintiff on the ground that the sale deed had been accepted by the defendant and his rights in the property had already been assigned by him to his son and that there was absolutely no bona fides in presenting this petition. The learned Judge has not discussed as to why the amendment was allowed.

What is stated in the order is 'the argument advanced by the plaintiffs learned counsel is hot without force. After going' through the pleadings I think that the amendment can be allowed but only on terms'. An order was made that Rs. 50/-should be paid as costs on 28-2-1958 and it was also ordered that if cost is not paid then the petition would stand dismissed with costs.

5. Against this order the plaintiff has come up in revision challenging the Order of 'the learned' Judge in allowing the amendment petition. The first point that was raised was that admittedly the cost ordered had riot heen paid on 28-2-1958 add so the order that 'if the cost is not paid then the petition would stand dismissed' has worked itself out and the learned Judge had therefore no power to extend the time and order the costs to be deposited on a future date.

6. Reference is made to the decision in Sreepathi Balaiah v. Darsi Ramayya, AIR 1941 Mad708, where Wadsworth, J., observed:

'When a court has granted time within which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is no power under Section 148 after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made. .....'

To the same effect is the observation in S.A. Balakrinshna Ayyar v. Parvathammal. AIR 1928 Mad 154. in the case in AIR 1941 Mad 706 an error had been committed by the court and in such a case it was held:

'The court has inherent power to prevent a party from bring damnified by the error of the court's own officer and though there is no power under Section 148 to reopen a closed matter and givean extension of time, the court has owner under Section 151 to do that which is necessary for the ends orjustice in order to set right the consequences of anUnfortunate error committed by an officer of court:'

In this case there is no such thing. The order was clear that the cost had to be paid on 28-2-58 and when it is not paid the petition automatically stands dismissed and the court has no power to extend the time. On this ground alone the petition has to be dismissed.

7. It is also contended by the learned counsel for the petitioner that no reasons are given by the learned Judge for allowing the amendment and by allowing the amendment the entire character and scope of the suit would be changed. It is stated that originally the plea that was set up was : that he agreed to accept a lesser amount and when it was found that there was a legal impediment for the plea to be set up and proved and when the plaintiff asked for a decree for the admitted amount of Rs. 10,000/- the defendant has come forward with this amendment that he is entitled to rescind the contract and claiming to get back the sale price paid by him and the value of improvements.

It is urged that there is' absolutely' no bona fides in presenting the petition. It has also been pointed out that the defendant has -accepted the sale deed and has even assigned his 'rights in the property to his son and that, his case that he is entitled to rescind then contract is an afterthought and the amendment ought , not to have been allowed. It is further argued that even if the allegations were true, the defendant's remedy was to bring an 'action for deceit or for rescission of the contract if the vendor has been guilty of fraudulent misrepresentation, that such a suit for damages has to be filed within 3 years of the knowledge of the representation, that the suit wouldnow be barred and that the effect of allowing this amendment would be to allow the defendant to set out of the plea of limitation.

There is considerable force in these arguments. This is certainly a factor to be taken into account in the exercise of the discretion as to whether an amendment would be ordered though it does not affect the power of the court to order it, if that is required in the interests of justice. The courts would as a rule decline to allow an amendment, if a fresh suit on the amended claim would be barred by limitation on the. date of the application: Vide decisions in Charan Das v. Amir Khan, AIR 1921 PC 50; L.J. Leach and Co.,' Ltd. v. Jardine Skinner and Co., (S) AIR 1957 SC 357 and Pir-gonda Hongonda v. Kalgonda Shidgonda, (S) AIR 1957 SC 363.

I am also tempted to agree with the learned counsel for the petitioner that if the amendment were to be allowed it would result in on entirely new case being made out on facts which according to the defendant were available but not pleaded. Then there is also the question of delay from which want of bona fides could be inferred. For all these reasons the order of the learned Judge is unsustainable and it is hereby, set aside. The revision petition is therefore allowed, but without costs.


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