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Pinnamaneni Gopalakrishnayya and ors. Vs. Veeramachunemi Ramaswami - Court Judgment

LegalCrystal Citation
SubjectCivil;Familty
CourtChennai
Decided On
Reported inAIR1931Mad369
AppellantPinnamaneni Gopalakrishnayya and ors.
RespondentVeeramachunemi Ramaswami
Cases ReferredNaba Kumar Choudhury v. Higheazany
Excerpt:
- - defendants 5 and 6 may have executed letters making themselves liable and defendants 9 and 10 may be under a pious obligation to discharge the debt, as well as being partners. 3. it is in no respect a case parallel with the present one but the judgment is instructive, because it shows clearly that in their lordships' opinion the powers of amendment should be liberally exercised and they add:.....an amendment which introduced an. alternative case with reference to a question of partition. the plaint originally alleged that there was an invalid partition and the amendment was to the effect that the partition not only was invalid hut was incomplete. that was an instance in which this court actually interfered in revision of a refusal to amend. several cases relate to the substitution of one capacity for another in the person of the plaintiff. in rajam aiyangar v. muthu krishna pillai [1914] 25 i.c. 945 hannay, j., had to deal with a plaint filed by the plaintiff in his private capacity. he decided that an amendment should be allowed describing him as managing director of a company. the case is noticed in naba kumar choudhury v. higheazany : air1925cal419 , where plaintiff who.....
Judgment:

Curgenven, J.

1. This petition is preferred against an order allowing the plaintiff to amend his plaint. He was a creditor of a firm composed of defendants 1 to 4 and sued them and various members of their family upon the debt, alleging that each of these four defendants was a managing member and therefore that the several family properties were liable. The amendment was sought with reference to the alleged liability of defendants 5, 6, 9 and 10. As regards defendants 5 and 6 the plaintiffs original case was not that they were partners but that after they had attained majority they executed letters undertaking to discharge the debt. As regards defendants 9 and 10 the original allegation was that they were members of a joint family with their father and elder brother, defendant 2, and that the father had agreed to be bound by the debt and therefore that they were under a pious obligation to discharge it. In the case of all these four defendants, (the amendment which it was desired to make was on attaining majority, which events took place prior to 1921 when the debt was contracted), they had been admitted as partners to the firm. The plaintiff explains that subsequent to filing his suit he obtained this information, various proceedings having taken place elsewhere in which these defendants had appeared or been treated as partners.

2. I think it is clear that the alternative :relief asked for in each of the two cases; is to add another ground of liability to that already existing in the case of these defendants, and that it is not inconsistent with the original case. Defendants 5 and 6 may have executed letters making themselves liable and defendants 9 and 10 may be under a pious obligation to discharge the debt, as well as being partners. It may be that the Cause of action against them as partners differs technically from that which was originally alleged against them. I have not been shown that it is an inflexible rule to disallow an amendment which 'modifies to some extent the original causa of action or adds another. The petitioners have relied upon the Privy Council judgment in Ma, Shoe Mya v. Maung Mo Hnautig A.I.R. 1922 P.C. 249 but I think that that decision is as much against them as in their favour. It was to begin with an extreme case, the substitution of an agreement entered into in 1903 for one alleged in 1912 and their Lordships say:

When once that contract has been negatived. to permit the plaintiff to set up and establish another and an independent contract altogether would in their Lordships' opinion be to go outside the provisions established by the Code of Civil Procedure.

3. It is in no respect a case parallel with the present one but the judgment is instructive, because it shows clearly that in their Lordships' opinion the powers of amendment should be liberally exercised and they add:

It would be a regrettable thing it when in fact the whole of a controversy between two parties was properly open rigid rules prevent its determination.

4. Several other cases have been cited, but I am unable to derive much assistance from them. In Sobhanadri Appa Rao v. Verikataramayya Appa Rao : AIR1927Mad212 , Krishnan, J., allowed an amendment which introduced an. alternative case with reference to a question of partition. The plaint originally alleged that there was an invalid partition and the amendment was to the effect that the partition not only was invalid hut was incomplete. That was an instance in which this Court actually interfered in revision of a refusal to amend. Several cases relate to the substitution of one capacity for another in the person of the plaintiff. In Rajam Aiyangar v. Muthu Krishna Pillai [1914] 25 I.C. 945 Hannay, J., had to deal with a plaint filed by the plaintiff in his private capacity. He decided that an amendment should be allowed describing him as managing director of a company. The case is noticed in Naba Kumar Choudhury v. Higheazany : AIR1925Cal419 , where plaintiff who originally sued in his personal capacity was allowed to amend his plaint by adding himself in his capacity as an administrator. The learned Judges say that no change in person had taken place, but that the change was in the basis on which the debt was due, and so here, the change is in the nature of the liability to pay the debt. The application to amend was made at an early stage of the suit before the issues had been framed and it has not been alleged that the defendants have suffered prejudice thereby. I am quite clear, therefore, that this is not a fit case for interference in revision and I dismiss the petition with costs.


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