Gudimetla Durga Prasad Reddy, vs Indian Overseas Bank
2022 Latest Caselaw 8065 AP

          THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

               Civil Revision Petition No.6845 of 2018

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, by the defendants is directed against the

orders, dated 18.09.2018, allowing IA.No.516 of 2018 in OS.No.67

of 2017 on the file of the Court of Principal Junior Civil Judge,

Srikakulam, filed under Order VI Rule 17 CPC read with Rule 28 of

the Civil Rules of Practice to amend the word 'defendant'

paragraphs (a) & (b) of third page of the plaint as 'defendants 1 to

3 jointly and severally'.

2. Heard Sri S.Srinivasa Rao, learned counsel appearing for the

revision petitioners/defendants 2 & 3 and Sri Sudha Madhuri

Govindu, learned counsel for the 1st respondent/plaintiff. The

parties shall hereinafter be referred to as the plaintiff, defendant

No.1 and defendant No.2 for the sake of convenience and clarity.

3. The case of the plaintiff in the affidavit filed in support of the

petition seeking amendment, in brief, is as follows:

The plaintiff brought the suit against the defendants 1 to 3 for

recovery of the loan amount. The 1st defendant is the borrower and

defendants 2 & 3 are the guarantors and the suit was initially filed

by their panel advocate, Sri V. Prabhakara Rao, who died recently.

BSB, J

At the time of filing of the suit, due to typographical mistake, i.e.,

instead of mentioning 'defendant Nos.1 to 3 jointly and severally', in

the prayer portion in paragraphs (a) and (b) in page No.3 of the

plaint, it is wrongly mentioned as 'defendant'. Hence, the present

petition seeking amendment.

(b) The respondents/defendants 2 & 3 filed counter opposing the

petition and contending as follows: The petitioner filed the instant

petition suppressing the true material facts in order to mislead the

court. The defendant No.1 is a necessary party, and as such, notice

to the defendant No.1 is very much essential and in the absence of

notice to the 1st defendant, the present petition cannot be decided.

The 1st defendant is a principal borrower. The petitioner failed to

seek consequential amendments. The 1st defendant, in collusion

with the 1st respondent/plaintiff, intentionally filed the petition. The

proposed amendment is not a typographical mistake and it is an

afterthought at the last stage of trial. The petition is intended to

drag on the proceedings. The petition is not maintainable as it

changes the nature of the suit. Defendant No.3 adduced his

evidence as DW1. Defendant No.2 got filed his chief examination

affidavit and the suit is posted for cross-examination of DW2. The

petitioner failed to mention specific reasons why the proposed

amendment was not sought at the earliest point of time. There is

lack of due diligence on the part of the petitioner. The petition is BSB, J

not maintainable. Amendment of pleadings cannot be allowed when

it materially alters or substitutes the cause of action or the nature of

the claim. The petition is liable to be dismissed.

4. At the time of enquiry, no oral or documentary evidence was

adduced on either side.

5. On merits, the trial Court allowed the petition of the plaintiff.

Therefore, the aggrieved defendants 2 & 3 are before this Court.

6. The revision petitioners/defendants 2 & 3, while reiterating

their pleaded case further urged as follows:

The proposed amendment substantially changes the nature of

the suit and it is against the object and spirit of Order VI Rule 17

CPC. The proposed amendment cannot be permitted after

commencement of trial. The plaintiff willfully omitted the relief

against defendants 2 & 3 at the time of filing of the suit. The

amendment proposed is an afterthought. No notice was issued to

the 1st defendant who is the principal borrower before seeking

amendment. The 1st defendant is in active collusion with the

plaintiff bank. Amendment cannot be permitted to fill up the lacunae

or omissions in the case pleaded by the parties.

BSB, J

7. Now the points for determination are -

Whether the plaintiff is not entitled under facts and in law to seek the amendment of the prayer in the plaint as prayed for? And, if so, whether the impugned order is liable to be set aside?

8. In view of the facts and the rival contentions, it is profitable to

refer to the legal position relevant to the relief sought in the

petition. Order VI Rule 17 of the Code reads as under:

"Amendment of Pleadings.--- 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.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

9. The case of the revision petitioners is that the plaintiff in the

instant case is not diligent in prosecuting his case and that the

amendment was sought after commencement of trial and also to

get over the plea taken in the written statement of the defendants 2

& 3 that they are not liable, as no relief is claimed against them and

that in view of the proviso to Order VI Rule 17 CPC, the plaintiff is

debarred from seeking an amendment. Learned counsel for the BSB, J

revision petitioners, in support of their contentions, relied on the

decision of the Supreme Court in M.Revanna v. Anjanamma

(Died) by LRs1. It is submitted that the plaintiff failed to plead

and prove that due diligence has been exercised by him, as required

under proviso to Order VI Rule 17 CPC. In the aforesaid decision,

it was held in paragraph No.7 as follows:

"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the Code of Civil Procedure virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such

(2019) 4 Supreme Court Cases 332 BSB, J

prejudice to the other side which cannot be compensated adequately in terms of money."

10. On the other hand, learned counsel for the plaintiff contend

that amendments are allowed in the pleadings to avoid uncalled-for

multiplicity of litigation and a liberal approach should be adopted

while allowing the amendments to sub-serve the cause of justice

and uphold substantive rights.

11. No doubt, in the case on hand, the plaintiff is seeking the

amendment after the commencement of the trial, and therefore, the

proviso gets attracted. Though normally amendments are allowed

in the pleadings to avoid multiplicity of litigation, the court needs to

take into consideration whether the application for amendment

causes prejudice to the other side which cannot be compensated

adequately in terms of money.

12. It is advantageous to refer here the following decisions:

(i) In Sajjan Kumar v. Ram Kishan2, wherein it was held at

paragraph No.5 as follows:

"5. Having heard the learned Counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible

(2005) 13 Supreme Court Cases 89 BSB, J

failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 Code of Civil Procedure would not have been strictly applicable. It is true that the Plaintiff-Appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the Plaintiff was pointed out by the Defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the Plaintiff- Appellant succeeding in the suit."

(ii) In Varun Pahwa v. Renu Chaudhary3, it was held

paragraphs 9 & 10 as follows:

"9.............This Court further stated in Jai Jai Ram Manohar

Lal [(1969) 1 SCC 869] case, at page 873, Para 7):

7....The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.

10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Anr. [(2006) 1 SCC 75], this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to

2019 SCC Online SC 300 BSB, J

deny justice or perpetuate injustice by any oppressive or punitive use."

(iii) In Chinnapareddy Subba Reddy v. Chinnapareddy

Srinu4, it was held at paragraph No.7 as follows:

" In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.........................There is no embargo on the petitioner claiming such an alternative plea. Eventually, it is for him to establish whether he was in possession of the property, failing which he has to establish his right for recovery of possession. As held by the Supreme Court in the above-mentioned judgment, by dismissing the applications for amendment of this nature, the parties will be driven to file a separate suit for recovery of possession and that would only lead to multiplicity of proceedings.

Unless the prayer sought to be made by way of amendment is barred by law, the Courts shall make a

2012 SCC Online AP 346 BSB, J

liberal approach in allowing the applications for amendment in order to avoid multiplicity of proceedings. It is not the pleaded case of the respondents that the amendment is barred by any law, such as the law of Limitation, or that any right vested in the respondents will be taken away by allowing such amendment."

(iv) In A. Krishna Rao v. A. Narahari Rao5, at paragraph

No.11, it was held as follows:

"11. No doubt, as pointed out by the learned counsel for respondents 1 and 8, the petitioner failed to plead that despite due diligence, he could not seek amendment before the commencement of trial. However, that is not the ground on which the lower Court has rejected the application for amendment. It is stated, at the hearing, that the trial has not been effectively commenced except that an affidavit in lieu of chief-examination is filed."

(v) In Sanapala Ramanujulu @ Ramanuja Charyulu v.

Sanapala Sridhrudu (died) and others6, it was held at

paragraph Nos.14, 15, 17, 20 and 24 as follows:

"14. Since the prayer sought in the amendment by the petitioner relates to the same property in respect of which earlier he had sought the relief of injunction, I am of the opinion that the amendment would be necessary for the purpose of determining the real questions in controversy between the parties. Therefore, in view of the above decision, I am of the opinion that the trial Court had erred

2014 (6) ALD 258

2014 (2) ALD 365 BSB, J

in rejecting the amendment on the ground that the application seeking amendment was made at the stage of arguments.

15. It may be that the petitioner has not mentioned the year in which construction was allegedly made by the respondents, but the petitioner has clearly stated that during the pendency of the suit and after the trial commenced, the constructions were made. The Court below therefore ought to have allowed the amendment.

17. Therefore, whether the petitioner is right in his submission that the construction was made after the trial commenced or not, is a matter for enquiry to be gone into the suit and it is not proper to express any opinion on the said issue at this stage.

20. It is no doubt true that the suit is of the year 2003 and is at a stage of arguments. As a consequence of allowing the amendment of plaint, it has now got to be reopened and fresh pleadings have to be filed apart from evidence to be let in by the parties afresh. But since the very purpose of permitting amendment of pleading is to avoid multiplicity of proceedings and since the events are alleged to have occurred during the pendency of the suit after the trial has commenced, keeping in view the fact that rejecting the application would lead to multiplicity of litigation forcing the petitioner to file a fresh suit, I am of the opinion that the amendment sought for by the petitioner is to be allowed.

24. In this view of the matter, no prejudice would be caused to the respondents. However, since the petitioner has admittedly filed the application seeking amendment at a belated stage, the petitioner shall be liable to pay costs BSB, J

of Rs. 1000/-(Rupees one thousand only) to the respondents' Counsel in this Court. The costs have also been paid today in the Court."

13. As per Order VI Rule 17 CPC, if an amendment is sought

before commencement of trial, it is settled law that a liberal

approach can be adopted to permit the amendment to the plaint,

whereas, in case, if any amendment is sought subsequent to the

trial, the petitioner has to establish that in spite of due diligence,

such relief could not be sought earlier.

14. In the present case, as can be seen from the pleadings, the

entire case of the plaintiff is to enforce liability against not just the

principal borrower, i.e., the 1st defendant, but also against the two

guarantors, who are defendants 2 & 3. Even after paragraph No.5

of the plaint, it is specifically mentioned that the suit is filed against

the defendants for realization of the suit amount with costs and

interests. However, in paragraph No.VI of the plaint, at para (a), it

is typed as 'defendant' instead of 'defendants'. Therefore, the

plaintiff proposed to amend the prayer to include all three

defendants and moreover, it is also sought to amend to seek the

relief with 'joint and several liability' against them. Therefore, no

additional liability is created by seeking the amendment in the plaint

as against the opposing defendants. It is purely a typographical

mistake. It is nowhere stated in the plaint that the suit is filed to BSB, J

enforce the liability against the 1st defendant alone. On the other

hand, the pleadings will indicate that the suit is filed to enforce the

liability against all the three defendants with joint and several

liability. Therefore, the decision relied on by the petitioners does

not help the petitioners to advance their case.

15. Thus, it follows that the amendment sought is imperative for

proper and effective adjudication of the suit and that the application

for amendment is bona fide and that the refusal of the amendment

would lead to injustice and that on the other hand the allowing of

the amendment does not cause any prejudice to the defendants.

Further, on application of the settled legal principles set out supra,

this Court finds that this is a case where the jurisdictional fact as

envisaged in the proviso appended to Order VI Rule 17 of the Code

exists and, that therefore, this Court could exercise the jurisdiction

to allow the amendment. This Court finds that granting of the

amendment sub-serves the ultimate cause of justice and avoids

further litigation and also any complications at the time of execution

of decree, in case of ultimate success of plaintiff in the suit. As

such, this Court finds that there is no error in the impugned order.

16. In the result, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

BSB, J

Miscellaneous petitions pending, if any, shall stand closed.

________________ B.S BHANUMATHI, J 28th October, 2022 RAR