OR. 6, rule 17 C.P.C.Order 6 Rule 17 will ordinarily be refused if such amendment would be to take away from a party a legal right which had accrued to him by lapse of time. = Points to be consider while deciding Amendment petition = "(i) whether the amendment sought is imperative for proper or effective adjudication of the case; (ii) whether the application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application." = It is also not the pleaded case of the respondents that the relief sought to be claimed by way of amendment is barred by limitation.It is neither the pleaded case of the respondents nor any finding is rendered by the Court below that by permitting the amendment sought by the petitioner either a new cause of action is sought to be introduced or the nature and character of the suit will undergo a change. Lower court committed error in dismissing the amendment petition.

published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8779
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY        

C.R.P.No.1649 of 2011

23-1-2012

Perim Janardhana Rao s/o. Perim Raja

Malepati Balaji s/o. M.Pushpaiah Naidu and others                                    

Counsel for petitioner : Sri V. Jagapathi

Counsel for respondents : Sri Dammalapati Srinivas

?CASES REFERRED:    
1. (1978) 10 Ch.D. 393 : (1874-80) All.E.R. Rep.Ext 1612 (CA)
2.  (1884) 26 Ch.D. 700 (CA)
3. AIR 1961 S.C. 325
4.  (1978) 2 SCC 91
5.  (2009) 10 SCC 84  


JUDGMENT:
        The plaintiff in O.S.No.107/2007 is the revision petitioner.  He filed the
said suit against the respondents for declaring that the suit schedule property
is nominally purchased in the name of defendant Nos.1 and 2 from out of the
amounts received by defendant Nos.1 and 3 from him and for granting permanent
injunction restraining defendant Nos.1 and 2 and persons claiming through them
from in any manner alienating the suit schedule properties.
        The plea of the petitioner was that he has in all paid Rs.3,20,45,826-50
ps. to defendant Nos.1 to 3 for purchase of properties in his name and that the
suit schedule property was purchased in the name of defendant Nos.1 and 2
nominally from out of the monies advanced by him.  The petitioner filed
I.A.No.1913/2008 on 26-12-2008 before the court of V Additional District Judge,
Tirupati, seeking amendment of the pleadings and the prayer in the suit.  The
said application was transferred to the court of the learned III Additional
District Judge, Tirupati and the same was renumbered as I.A.No.504/2010.  The
petitioner sought for amendment of the plaint by adding para Nos.7(a) to (d) and
certain additions to paras 10 and 11.  The petitioner also sought for additional
relief of directing respondent Nos.1 and 3 to pay a sum of Rs.2,88,19,538/- with
interest at 12% p.a. from the date of suit till the date of realization.  The
said application was resisted by the respondents.  The lower court, by order
dated 30-3-2011 dismissed the said application.  Assailing the said order, the
petitioner filed the present Civil Revision Petition.
        I have heard Sri V. Jagapathi, learned counsel for the petitioner and Sri
Dammalapati Srinivas, learned counsel for the respondent.
        While it is the pleaded case of the petitioner in the plaint, as
originally presented, that from out of the amount advanced to defendant Nos.1
and 3, the property was purchased in the name of defendant Nos.1 and 2 nominally
instead of in his name, in the application for amendment, the petitioner wanted
the plaint to be amended to the effect that from out of the sum of
Rs.3,20,45,826-50 advanced to defendant Nos.1 to 3, the property worth
Rs.1,02,00,146/- was purchased in the name of the plaintiff and the property
worth Rs.2,18,45,680/- was purchased in the name of defendant Nos.1 and 2
nominally. The petitioner therefore sought for amendment of the pleadings to
that effect and also addition of prayer to direct respondent Nos.1 to 3 to pay
him a sum of Rs.2,88,19,538/-.  In the order under revision, the lower court
observed that if the petitioner proves that he has paid the said amount to the
defendants for purchasing property, he will succeed in the suit in obtaining the
declaration as sought for by him and conversely if he fails to prove the same,
his claim will be defeated.  The court below further observed that the proposed
amendment is only to insert additional pleading with regard to the details of
the amounts which were already mentioned in the plaint and that the additional
relief sought was only for recovery of the part of the amount allegedly advanced
by the plaintiff to defendant Nos.1 and 2.  Having so held, curiously, the court
below has rejected the application for amendment by purporting to test the
veracity of the pleas raised by the petitioner on merits.
        Perhaps, the earliest of Judgments on the law governing amendment of
pleadings, is in Tidesley Vs. Harper1, wherein Bramwell, L.J., exemplifying his
deep humility, rendered his opinion, as under:
        "....I have had much to do in Chambers with applications for leave to
amend, and I may perhaps be allowed to say that this humble branch of learning
is very familiar to me.  My practice has always been to give leave to amend
unless I have been satisfied that the party applying was acting mala fide, or
that, by his blunder, he had done some injury to his opponent which could not be
compensated for by costs or otherwise."

In Cropper Vs. Smith2, Browen, L.J. in his illuminating exposition of the legal
proposition relating to amendment of pleadings, held as under:
        ".....it is a well-established principle that the object of courts is to
decide the rights of the parties, and not to punish them for mistakes they make
in the conduct of their cases by deciding otherwise than in accordance with
their rights.  ... I know of no kind of error or mistake which, if not
fraudulent or intended to overreach, the court ought not to correct, if it can
be done without injustice to the other party.  Courts do not exist for the sake
of discipline, but for the sake of deciding matters in controversy and I do not
regard such amendment as a matter of favour or grace.  ... It seems to me that
as soon as it appears that the way in which a party has framed his case will not
lead to a decision of the real matter in controversy, it is as much a matter of
right on his part to have it corrected, if it can be done without injustice, as
anything else in the case is a matter of right."

Dealing with this aspect, the Supreme Court in Laxmidas Dayabhai Kabrawala Vs. Nanabhai Chunnilal Kabrawala3, 
held that leave to amend the pleadings under
Order 6 Rule 17 will ordinarily be refused if such amendment would be to take away from a party a legal right which had accrued to him by lapse of time.
This
statement was qualified by stating that this rule can apply only when fresh
allegations are added or fresh reliefs are sought by way of amendment.  The
Supreme Court illustrated an instance where an amendment was sought merely
clarifying the existing pleading and had not in substance added to or altered
it, and observed that it has never been held that the question of bar of
limitation is one of the questions to be considered in allowing such
clarification of a matter already contained in the original pleading.
Further elucidating on the legal position on the subject, the Supreme Court in
Ganesh Trading Co. Vs. Moji Ram4 held that if the plaintiff seeks to alter the
cause of action itself and to introduce indirectly, through an amendment of his
pleadings, an entirely new or inconsistent cause of action amounting virtually
to the substitution of a new plaint or a new cause of action in place of what
was originally there, the Court will refuse to permit it if it amounts to
depriving the party against which a suit is pending of any right which may have
accrued in its favour due to lapse of time and that mere failure to set out even
an essential fact does not, by itself, constitute a new cause of action.  The
Supreme Court further observed that defective pleadings are generally curable if
the cause of action sought to be brought out was not ab initio completely absent
and that every defective pleading may be permitted to be cured so as to
constitute a cause of action where there was none, provided necessary conditions
such as payment of either any additional court fees, which may be payable, or,
of costs of the other side are complied with.  It was further held that it is
only if lapse of time has barred the remedy on a newly constituted cause of
action that the Courts will ordinarily refuse prayers for amendment of
pleadings.
        I do not intend to burden this Judgment with several subsequent judicial
pronouncements of the Apex Court rendered on similar lines.  However, I will be
failing in my effort if I do not refer to one of its recent Judgments in
Ravejeetu Builders & Developers Vs. Narayanaswamy & Sons5, wherein, Dalveer   
Bhandari, J., speaking for the Bench, in his pains-taking Judgment, reviewed the
entire case law on the subject and tried to conceptualize the principles
governing amendment of pleadings, illustratively and not exhaustively.
They are
as under:
"(i)  whether the amendment sought is imperative for proper or effective adjudication of the case;
(ii)  whether the application for amendment is bona fide or mala fide;
(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(v)  whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; 
and
(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."


It is neither the pleaded case of the respondents nor any finding is rendered by
the Court below that by permitting the amendment sought by the petitioner either
a new cause of action is sought to be introduced or the nature and character of
the suit will undergo a change.  
On the contrary, as noted above, the Court
below itself observed that the petitioner has mentioned all the details and that
he only sought for addition of pleadings and the prayer for recovery of the
amount.  
It is also not the pleaded case of the respondents that the relief
sought to be claimed by way of amendment is barred by limitation.
In my opinion, the Court below ought not to have delved into the merits of the
pleas of the petitioner and rejected the amendment on the ground that the
petitioner has failed to produce acknowledgement of receipt of the amounts by
defendant Nos.1 and 3.  
Such an exercise can be undertaken only in the suit.
The Court below has failed to assign legally sustainable reasons for rejecting
the amendment sought by the petitioner.
        For the above mentioned reasons, the order under revision is set-aside.
I.A.No.504/2010 in O.S.No.107/2007 on the file of the learned III Additional
District Judge, Tirupati, is allowed.  The Civil Revision Petition is
accordingly allowed.
        As a sequel, CRP.M.P.No.2351/2011 is disposed of as infructuous.

________________________  
Justice C.V. Nagarjuna Reddy
Date : 23-1-2012

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