Yadamakanti Chandra Sekhar Reddy ... vs Siddigari Bala Nagi Reddy
2022 Latest Caselaw 8092 AP

        THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

          CIVIL REVISION PETITION No.2441 of 2019

ORDER:

The 1st plaintiff in O.S.No.19 of 2017 filed this civil

revision petition under Article 227 of the Constitution of India

questioning the correctness of order dated 26.06.2019 of

learned Principal Senior Civil Judge, Nandyal in I.A.No.778 of

2017 in O.S.No.19 of 2017. Under the impugned order, the

request for amendment of plaint was denied by the learned trial

Court.

2. Respondent No.1 in this revision is the sole defendant in

the suit. Respondent Nos.2 to 4 are also plaintiffs in the suit. A

curious question has arisen in these proceedings. Therefore, it

is necessary to advert to the pleadings of both parties in the

suit.

3. The plaintiffs together filed O.S.No.19 of 2017 seeking for

recovery of money along with interest and costs and the suit is

laid on the basis of two promissory notes. The allegations in the

plaint are that Sri Y.Chandra Sekhar Reddy has a wife Smt.

Y.Prameelamma/4th plaintiff and they have one son/1st plaintiff

and two daughters/2nd and 3rd plaintiffs. During his lifetime

from Sri Y.Chandra Sekhar Reddy, the defendant borrowed an

amount of Rs.2,00,000/- on 01.05.2016 and thereafter once

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again borrowed Rs.1,76,000/- on 04.05.2016 and on both

occasions, the defendant executed promissory notes in favour of

Sri Y.Chandra Sekhar Reddy. On 16.07.2016 Sri Y.Chandra

Sekhar Reddy died and to him the plaintiffs are the legal

representatives. The defendant failed to repay the debt amount

during lifetime of Sri Y.Chandra Sekhar Reddy or to the

plaintiffs despite demands. It is on these averments the plaint

was filed.

4. The sole defendant Sri S.Bala Nagi Reddy filed his written

statement denying borrowal of money and execution of

promissory notes in favour of Sri Y.Chandra Sekhar Reddy. It is

stated that land in Survey No.54 in an extent of Ac.14.50 cents

situated in Koratamaddi Village was obtained by this defendant

on lease for cultivation from Sri Y.Chandra Sekhar Reddy.

Because of low rainfall and insecticides and other reasons, the

defendant suffered heavy loss in his agriculture. As a

consequence, he could not pay the lease amount. However, to

his surprise, on receiving the suit summons, he understood that

Sri Y.Chandra Sekhar Reddy created suit pronotes and they are

false. In fact Sri Y.Chandra Sekhar Reddy himself was in

financial crisis and he incurred in various debts because of

marriage of his daughters and he had sold away his properties

Dr. VRKS, J C.R.P.No.2441 of 2019

towards discharge of his own debts. It is further stated that

Sri Y.Chandra Sekhar Reddy never demanded this defendant for

repayment and this defendant had no need to discharge the suit

debt since he neither borrowed money nor executed the

promissory notes. With such contentions, he sought for

dismissal of the suit.

5. It seems that while the suit was set for trial and recording

of evidence had not yet commenced, the plaintiffs filed

I.A.No.778 of 2017 in O.S.No.19 of 2017 under Order VI Rule 17

and Section 151 C.P.C. seeking permission for amendment of

the plaint. Consequential amendments that are required to be

carried out in the plaint in the event of permission for

amendment is granted are also mentioned in the petition.

Sri Y.Raghava Reddy/1st plaintiff/revision petitioner swore an

affidavit in support of the petition. It is mentioned that both the

pronotes mentioned in the plaint were the pronotes standing in

the name of himself/1st plaintiff and they were executed by the

defendant on borrowing money from him and these events took

place during the lifetime of Sri Y.Chandra Sekhar Reddy. His

father obtained crop loan of Rs.1,00,388/- and there was loan

waiver by Government and the bank authorities directed

him/revision petitioner to obtain succession certificate since Sri

Dr. VRKS, J C.R.P.No.2441 of 2019

Y.Chandra Sekhar Reddy died. In the backdrop of above facts,

the deponent gave the necessary documents to his advocate

requesting him to file a petition for obtaining succession

certificate for the purpose of bank and a suit for recovery of

money for the pronotes. However, the advocate by mistake filed

the suit not only in the name of the 1st plaintiff but also in the

name of other legal heirs of late Y.Chandra Sekhar Reddy. The

matter that was to be included in succession certificate petition

was included in the suit also. Since the deponent was in a hurry

to institute the suit and to seek attachment of property before

judgment, the mistake committed by the advocate was not

noticed. Now for rectification of this, the petition is filed.

6. The sole respondent to that petition is defendant and he

filed a counter denying the petition mentioned averments. It is

further stated that while the suit is coming up for trial, this

petition is filed at a belated stage with all false and frivolous

allegations to cover up the lacunae in filing the suit. At para

No.3 of the counter, it is mentioned that he never borrowed any

amount under the alleged promissory notes either from

Sri Y.Chandra Sekhar Reddy or from his son/1st plaintiff. That

there is gross negligence on part of the petitioners in filing the

suit absurdly and only with a mala fide intention to harass this

Dr. VRKS, J C.R.P.No.2441 of 2019

defendant in one way or other. The proposed amendments

would change the entire nature and complexion of the suit and

the pleadings of the parties to the suit and such amendment

shall not be allowed under any circumstances. Proposed

amendment will lead to great loss and hardship to the

respondent/defendant. For these reasons, he sought for

dismissal of the petition.

7. On hearing both sides, the petition for amendment of

plaint was dismissed by the learned trial Court stating that

plaintiffs cannot be permitted to deviate from the original

pleadings under the guise of mistake and it is not a simple

typographical error that they are trying to seek for rectification

and proposed amendment will result in deviation from the

original plea and will change the cause of action and mistake

was committed by the plaintiffs and they could not take

advantage of their own wrong and cannot introduce a new

version. With such reasons, the petition was dismissed.

8. As against the said orders, the 1st plaintiff in his revision

contends that trial in the suit has not yet commenced and

therefore, proposed amendment would not cause prejudice to

the opposite party and an opportunity to file written statement

Dr. VRKS, J C.R.P.No.2441 of 2019

could also be granted. That a perusal of both the pronotes

clearly show that they stand in favour of this revision petitioner

and other plaintiffs have nothing to do. That there was a bona

fide mistake that crept in the office of the learned counsel

appearing for the plaintiffs and the counsel adopted the

measure of cut and paste, which resulted in this mistake as the

facts to be narrated in Succession O.P. were also brought into

the plaint. The reasons assigned by the trial Court are against

the facts and law and it failed to exercise proper jurisdiction and

sought to reverse the impugned order.

9. Learned counsel for revision petitioner submits that

mistake committed by the counsel cannot be allowed to cause

harm to the case of a client and the nature of the suit does not

change at all as it still remained a suit on the very same

promissory notes and amendments of this nature were always

permissible and the learned counsel also cited legal authorities

in support of his contentions.

10. As against this, the learned counsel for

respondent/defendant submits that while the entire case set up

in the plaint is about Sri Y.Chandra Sekhar Reddy lending

money, the proposed amendment totally deviates from it and

Dr. VRKS, J C.R.P.No.2441 of 2019

tries to show Sri Y.Raghava Reddy/revision petitioner as the

creditor and the proposed amendment will seriously prejudice

the contentions taken in the written statement by the

defendant. It is further argued by the learned counsel that

along with the plaint, the verified affidavit was also filed by the

plaintiffs and he cannot cover up his gross negligence just by

throwing blame on the counsel. According to learned counsel

for respondent, the proposed amendment would fully change

the cause of action and the trial Court rightly appreciated the

facts and law and therefore, this Court need not interfere with

such reasoned order.

11. On considering the submissions on both sides and on

perusal of the record, the following point falls for consideration:

"By refusing the proposed amendment in the plaint

whether the trial Court improperly exercised its discretion

resulting in miscarriage of justice requiring interference of this

Court under Article 227 of the Constitution of India?

12. Point: The following facts are not in dispute:

The suit is filed for recovery of money. The plaint for

recovery is based on two promissory notes. There are list of

documents contained in 4th page of the plaint showing the filing

Dr. VRKS, J C.R.P.No.2441 of 2019

of both the pronotes and the death certificate of Sri Y.Chandra

Sekhar Reddy and the Family Members Certificate. As per the

averments in the plaint, those pronotes were executed by the

defendant. It is mentioned in the impugned order and it is also

mentioned in the sworn affidavit of the revision petitioner filed

before the trial Court that both the pronotes indicate the name

of this revision petitioner as the person from whom the

defendant allegedly borrowed money. It is in the context of

above material, the plaint was prepared and filed. The cause

title in the plaint shows the name of

Sri Y.Chandra Sekhar Reddy as died and represented by his

legal representatives and then Sl.Nos.1 to 4 were given for four

plaintiffs. This cause title by itself would show that the suit was

filed on the premise that the two promissory notes filed along

with the plaint are the promissory notes of Sri Y.Chandra

Sekhar Reddy (late). The plaint before being registered was

always subjected to scrutiny by the office of the Court. Had the

plaint been properly scrutinized an objection would have been

taken at the threshold itself pointing out the fact that

promissory notes do not stand in the name of Sri Y.Chandra

Sekhar Reddy and they stand in the name of Sri Y.Raghava

Reddy/1st plaintiff. No query was raised in that regard. Thus, it

Dr. VRKS, J C.R.P.No.2441 of 2019

is clear that the office of the trial Court failed to scrutinize the

plaint in the manner that is required by law. Order XIV Rule

1(5) C.P.C. shows that at the first hearing of the suit, the Court

shall read the plaint and written statement and hear the parties

or their pleaders and ascertain from them the material

propositions of fact or law on which the parties are at variance

and then frame and record the issues for the purpose of

reaching to right decision in the case. In the case at hand, both

sides submitted arguments and the issues in that suit were

framed. If really the trial Court had bestowed its attention in

verifying the plaint along with the documents filed with it and if

had heard the party or his counsel, the mistake that was

available would have come to light there itself. The fact that

issues were settled with plaint showing one thing and suit

pronotes showing another thing by itself would indicate, no

such real legal exercise took place before the trial Court and

without any application of mind the issues seems to have been

settled. Now that when the suit is coming up for trial, the

mistake that crept in was realized. Since examination of

witness either in person in the Court or by presentation of

examination in chief by way of affidavit has not yet occurred, it

is clear that trial in the suit has not yet commenced (vide

Dr. VRKS, J C.R.P.No.2441 of 2019

Vidyabai v. Padmalatha (2009) 2 SCC 409). Therefore, the

proviso to Order VI Rule 17 C.P.C. does not fall for

consideration. Then what remained is the discretion of the

Court in permitting or refusing permission to the parties to

amend their pleadings. The purpose for permission is that the

proposed amendments would help the Court in determining the

real questions in controversy between the parties. In the case at

hand, the real question in controversy between parties is a set

of two promissory notes. The plaint alleges that the defendant

borrowed money. The defendant alleges that he did not borrow

and they are forged and fabricated. Thus, the real controversy

between the parties being two promissory notes and they are

physically available and is noticed by both parties and the trial

Court, the substance of the controversy remained same both in

the existing plaint as well as in the plaint after inserting the

proposed amendments. Therefore, the proposed amendments

would hover around only subsidiary facts. The subsidiary facts

are who lent and who borrowed. The person who borrowed

remained unchanged even in the amended plaint. What could

change is the name of the person who lent. While the suit

pronotes indicate the name of this revision petitioner, the cause

title in the plaint and the narration of facts in the body of the

Dr. VRKS, J C.R.P.No.2441 of 2019

plaint failed to mention his name as one who lent money. In

effect, to this extent, one could say that the plaint is filed in the

name of a wrong plaintiff. Plaintiff Nos.2 to 4 are not parties to

both the suit pronotes. Their presence in the suit is

unnecessary. Thus, seeking to omit them from the suit since

they are wrongly shown as plaintiffs is a matter of course. Then

what remained is that the original plaint reads that the debt

was borrowed from late Y.Chandra Sekhar Reddy, but the

proposed amendment would show that it was borrowed not from

him but from his son Sri Y.Raghava Reddy. That alone was the

real amendment that takes place, if permitted. Since the

defendant's contention both in his written statement as well as

in the counter filed before the learned trial Court is that he

never executed these two prnotes and they are fabricated and

false documents and that he never borrowed money either from

Sri Y.Chandra Sekhar Reddy (late) or from Sri Y.Raghava Reddy,

one cannot really say that there could be injury to the defence

raised in the written statement in the event of allowing the

proposed amendment.

Dr. VRKS, J C.R.P.No.2441 of 2019

13. Learned counsel for revision petitioner cites for his

support Varun Pahwa v. Renu Chaudhary1. That was a case

where the suit was laid for recovery of money. While the suit

was supposed to be filed in the name of a company, it was

wrongly filed in the name of a person and evidence also

commenced. It was at that stage mistake was realized and then

amendment was sought for. On appreciating the facts that were

available before their Lordships, they pleased to hold that the

mistake was inadvertent and it was a mistake on part of the

counsel and such mistakes should always be permitted to be

amended. Two full paragraphs in the plaint were permitted to

be amended by their Lordships. It was held that even if a party

is found to be negligent or careless, the Court should see that

its power to grant permission to amend plaint be exercised

pragmatically and its endeavour shall be to see that whether the

proposed amendments would enable it to decide the real

controversy in appropriate manner and whether it would serve

the ends of justice. With that view, their Lordships upset the

concurrent orders of the Courts below and permitted the

amendment. Learned counsel also cited Mohinder Kumar

(2019) 15 SCC 628

Dr. VRKS, J C.R.P.No.2441 of 2019

Mehra v. Roop Rani Mehra2. That was a case concerning

Order VI Rule 17 C.P.C. and one of the objections taken by the

opposite party was that the plaintiff having verified the plaint he

cannot be allowed to take a new plea by way of amendment. On

considering the whole gamut of law, their Lordships refused to

agree with such contention. Going by these guiding ratios when

this Court looks at the case before it, it is clear that the

documents furnished in the form of promissory notes by this

revision petitioner through his learned counsel were brought to

the Court by the learned counsel along with a plaint, which the

counsel prepared which ought to have the name of the creditor

as the sole plaintiff, was prepared with a cause title which is

found to be incorrect going by the fact that pronotes indicate

living human but the cause title and the body of the plaint

indicate about dead man Sri Y.Chandra Sekhar Reddy and his

legal representatives suing as plaintiffs. Thus, this error

apparent from the record is not an error on part of a citizen,

but it is an error on part of the counsel. The fact that it is an

error on part of the counsel is the contention of the revision

petitioner and nothing contrary to it could be contended by the

respondent. The law is well known that imprudence of a counsel

(2018) 2 SCC 132

Dr. VRKS, J C.R.P.No.2441 of 2019

cannot lead to injure the right causes of citizens. The contention

of the revision petitioner is that he had entrusted two briefs to

his counsel one is the suit on pronotes and the other is an

original petition for succession certificate. Along with this

petition, a copy of the order dated 07.09.2017 of learned

Principal Senior Civil Judge, Nandyal in S.O.P.No.1 of 2017 is

also filed, which shows the bona fides of the revision petitioner

in entrusting the matters to his counsel. The fact that there is

order in S.O.P.No.1 of 2017 is not challenged by the respondent.

In the light of the facts that are on record and in the light of the

law that has been available, when this Court views the order of

the trial Court, it finds it difficult to agree with the reasons

offered in the impugned order. Mere change in the name of the

plaintiff and consequential change the sentences do not amount

to change of cause of action as long as the basis for the suit

which are promotes speak otherwise. Therefore, learned trial

Court failed to appreciate that the real controversy in the suit

never got changed and the peripheral facts would never harm

the substantial dispute on facts and the proposed amendment

would only lead to set right the peripheral facts. Thus, the trial

Court improperly exercised its jurisdiction and failed to grant

the relief that was needed. Such grave infirmity in the order of

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the trial Court should be set right in this revision by this Court

sitting under Article 227 of the Constitution of India. There is

merit in this revision. Point is answered in favour of the revision

petitioner. It may be noted that Order VI Rule 17 C.P.C. permits

amendments but on terms which would balance the justice.

Since the whole clumsiness was out of the actions of the clients

and their counsel resulting in application before the trial Court

and revision before this Court, the amendment to the plaint

would be permitted on a condition that revision petitioner pays

an amount of Rs.5,000/- as costs to the respondent/defendant

to compensate the inconvenience.

14. In the result, this Civil Revision Petition is allowed setting

aside the order dated 26.06.2019 of learned Principal Senior

Civil Judge, Nandyal in I.A.No.778 of 2017 in O.S.No.19 of 2017

and therefore, I.A.No.778 of 2017 in O.S.No.19 of 2017 stands

allowed. This shall be carried out only when 1st plaintiff/revision

petitioner pays an amount of Rs.5,000/- (Rupees five thousand

only) to the respondent/defendant and file proof of it before the

trial Court within two (2) months from the date of receipt of a

copy of this order. There shall be no order as to costs.

Dr. VRKS, J C.R.P.No.2441 of 2019

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 31.10.2022 Ivd

Dr. VRKS, J C.R.P.No.2441 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.2441 of 2019

Date: 31.10.2022

Ivd