C.R.P No. 2567 of 2011 · Andhra Pradesh High Court

Cause title

This is a plaintiffs’ revision under Article 227 of the Constitution directed against the order dt. 18.02.2011 of the I Additional Senior Civil Judge, Visakhapatnam, rejecting I.A.No. 645 of 2010 in O.S.No. 321 of

2008. Initially the suit was filed for cancellation of a sale deed and

permanent injunction, on the ground that the 1st defendant failed to fulfil the reciprocal obligations between the parties. In the plaint, the revision petitioners specifically pleaded that the 1st defendant had paid Rs. 3,60,000/- under the sale deed dt. 22.5.2006 executed by the plaintiffs 1 and 2 in his favour. On the admitted factual scenario, trial of the suit has commenced; issues were framed and the evidence of three witnesses on behalf of the plaintiffs was also recorded, before the plaintiffs filed I.A.No. 645 of 2010 under Order 6 Rule 17 C.P.C. seeking amendment of the plaint. The plaintiffs seek to resile from the admission in the plaint (that they received an amount of Rs. 3,60,000/- from the 1st defendant under the suit sale deed) now they seek to plead that they received only Rs. 1,16,000/- i.e. Rs. 1,06,000/- and Rs. 10,000/-. The plaintiffs claim to have realised the erroneous statement of fact as to the amount of money received from the 1st defendant set out in the plaint, when they were giving instructions to their counsel, after commencement of the trial. The 1st defendant resisted the application for amendment on several grounds including that it was barred by limitation; and on the ground that since the amount of money paid by him to the plaintiffs at the time of execution of the sale deed was within their knowledge, if they (plaintiffs) were diligent, no such error (as falsely asserted) would have occurred. The 1st defendant also asserted that in fact he had paid Rs. 3,60,000/- and that it was acknowledged by the plaintiffs even in the notice issued by and on behalf of the plaintiffs, prior to the institution of the suit. By the order impugned, the application for amendment of plaint was rejected principally on the ground that the plaintiffs failed to establish that they could not plead the fact sought to be introduced by way of amendment in spite of due diligence, before commencement of trial. Under Order 6 Rule 17 C.P.C., trial is said to commence on the framing of issues. The law on this aspect is fairly settled by a catena of authorities vide Kailash vs. Nanhku[1], Baldev Singh vs. Manohar Singh[2], Ajendraprasadji vs. Swami Kasher Prakashji[3], Vidyabai vs. Padmalatha[4] and Chander Kanta Bansal vs. Rajinder singh Anand[5]. The principle is also well settled consistent with the legislative mandate of the proviso to the Order 6 Rule 17 C.P.C. The Court’s discretion to liberally consider amendment of pleadings is circumscribed; when an application for amendment is filed after commencement of trial. The discretion cannot be exercised unless in spite of due diligence as a prudent man would exercise in his own affairs, the amendment sought could not be pleaded earlier to the commencement of trial vide Chander Kanta Bansal vs. Rajinder Singh Anand (5 supra), P.A.Jayalakshmi vs. H.Saradha[6] and Ravajeetu Builders and Developers vs. Narayanaswamy[7]

Sri. Ravi Chamalapati, learned Counsel for the petitioners would urge that the court below erred in recording observations on the falsity of the pleas sought be introduced by the amendment. It requires to be noticed that in para-7 of the order of the court below, the court below responding to the contention on behalf of the plaintiffs (that the GPA had given instructions to the counsel to draft the notice and thereby an error that an amount of Rs. 3,60,000/- was paid as sale consideration by the 1st defendant occurred), observed that in Ex:A.5 the sale deed and plaintiffs 1 and 2 acknowledged receipt of an amount of Rs. 3,60,000/- as sale consideration. On this ground, the Court below found that it is not necessary to allow the application for amendment of the plaint on merits as well. The issue whether the merits of an amendment could be considered while considering an application for amendment, is not wholly a settled principle. In Ravajeetu Builders and Developers vs. Narayana Swamy (7 Supra), on a critical analysis of the English and Indian authorities, the Supreme Court inter alia summarised the principles while governing consideration of an application amendment of pleadings. One of the principles set out is that an examination by the court whether amendment sought is bona fide or mala fide is warranted. Again in Meghmala vs. G.Narsimha Reddy[8], the Supreme Court observed that dishonesty; perpetration of fraud or misrepresentation should not be permitted to bear litigative fruit in favour of the perpetrator of fraud or dishonesty. In Balwanth Singh vs. Jadish Singh[9] the court observed that whenever a party does not approach the court with clean hands and seeks the aid of the court, in exercise of discretionary power, the court should reject the application. On the analysis above, this Court discerns no error in the application of law or exercise of discretion by the Court below, warranting interference under Article 227 of the Constitution. There are no merits in the revision, which is accordingly dismissed, at the stage of admission. There shall be no order as to costs. ______________________ GODA RAGHURAM, J 18.11.2011. KRB. THE HON’BLE SRI JUSTICE GODA RAGHURAM C.R.P.No. 2567 of 2011.

ORDER: