SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2001 Supreme(AP) 663

Andhra Pradesh High Court
Judges : ELIPE DHARMA RAO
Prof.Behara Bhaskara Rao - Appellant
Versus
Varada Venkata Govinda Raju - Respondent
Decided On : 07-06-01

Headnote:

Code of Civil Procedure, 1908 - Section 153 - Order VI,I, Rule 17, 10 - Limitation Act, 1963 Section 21- Common order – Dismissal – Amendment – Limitation - Cause title of the plaints - IT is the case of the petitioner in the affidavits filed in support of the I. As. that under the lease agreement (Ex. A-1), the lessee is kameswari Enterprises, represented by its Managing Partner and by oversight the defendant was wrongly described as which is only a wrong description and so the petitioner may be permitted to correct the same – Held, satisfied that the amendment as prayed for by the petitioner in these petitions can be allowed to enable the Court to effectively and completely adjudicate the dispute and settle all the questions involved in the suits on imposing certain terms I, accordingly, hold that the issues involved in the above petitions are to correct the mis-description of a party and it does not amount to substitution of a party - Therefore, the limitation starts from the date of filing of the above suits. Instead of dismissing the las. which are filed under Section 153 CPC, the Court below should have considered and allowed the same under Order 1 rule 10 of CPC as opined by the Court below - Civil Revision petitions are allowed.

ELIPE DHARMA RAO, J.

( 1 ) THE above Civil Revision Petitions can be disposed of by this common order as they are filed against the order of dismissal dated 7-7-2000 by the Principal Senior Civil judge, Srikakulam, by a common order in i. A. No. 387/2000 in O. S. 2/98, I. A. No. 388/2000 in O. S. 33/99 and I. A. No. 389/2000 in O. S. 95/99 respectively, filed for amendment of cause title with regard to name of the 1st defendant in the suits. The said three I. As were dismissed on the ground that amendment sought for in the above said I. As. if allowed, would take away the right accrued to the firm to defend the suits on the ground of limitation.

( 2 ) THE above I. As are filed under section 153 CPC praying the Court below to permit the petitioner to amend the short and long cause title of the plaints relating to the description of the 1st defendant by inserting the name of the 1st defendant as m/s. Kameswari Enterprises, represented by its Managing Partner Varada Venkata govinda Rajulu" in the place of "varada venkata Govinda Rajulu".

( 3 ) IT is the case of the petitioner in the affidavits filed in support of the I. As. that under the lease agreement (Ex. A-1), the lessee is kameswari Enterprises, represented by its Managing Partner varada Venkata Govinda Rajulu and by oversight the defendant was wrongly described as varada Venkata Govinda rajulu which is only a wrong description and so the petitioner may be permitted to correct the same. The same was resisted by the respondent No. 1/defendant No. 1 in the I. As. on the ground that the proposed correction amounts to substitution of a new party and, therefore, the provisions under section 153 or Order VI Rule 17 of the Code of Civil Procedure (CPC) have no application to the present case and that the right accrued to the 1st defendant by means of limitation will be lost if the petitions are allowed and the proposed amendment is ordered. On consideration of both the facts and circumstances of the case and the evidence available on record, the Court below accepted the contention of the respondent/defendant No. 1 and dismissed the I. As. Aggrieved by the said dismissal, the present C. R. Ps are filed.

( 4 ) IT is submitted by Sri M. S. K. Sastry, learned Senior Counsel for the petitioner that the order passed by the Court below in the above I. As. , is contrary to law as the same is passed under a wrong provision of law i. e. , Section 153 of C. P. C. , which is not applicable to the facts and circumstances of the present case. The correct provision of law applicable to the facts and circumstances of the present case is Order I rule 10 C. P. C

( 5 ) SECTION 153 C. P. C. deals with General power to amend, which reads as under:"the Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. A reading of the above Section contemplates that the Court may at any time after imposing such terms as to costs or otherwise order to amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. It deals with amendment of any defect or error in any proceeding in a suit i. e. , the Court has got power to correct any mistake occurred while passing a preemption decree as to the omission of the date by which the money has to be deposited, but the Court has no right to reject the application for rectification in the decree. The convenient and general test that can be applied to determine whether the correction sought for is in the field of accidental slip or omission or not, is to examine whether the judgment as it stands represents the intention of the judge at the time he made it, and if it does, then, a mistake in it cannot be treated a










Click Here to Read the rest of this document
1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon telegram-icon
whatsapp-icon Back to top