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TELANGANA HIGH COURT
T. Vinod Kumar, J.
Kola Rama Swamy – Petitioner
versus
Anney Venkatesh and Anr. – Respondents
Civil Revision Petition No.3082 of 2022
Decided on 21.4.2023
Code of Civil Procedure, 1908 – Order VI Rule 17 – Amendment of pleadings –Inconsistent pleas – Order VI Rule 17 stipulates that application for amendment can be allowed at any stage of proceedings for purpose of deciding real disputes between parties – Same is subject to proviso to Rule 17 which casts obligation on applicant to show that application could not have been preferred before commencement of trial despite exercising due diligence – Application seeking amendment of written statement stands at better position than that of plaint as prejudice caused by altering, adding, or substituting defense is lower than altering, adding or substituting a cause of action – Court should take liberal approach when amendment of written statement is sought – Finding of court below that proposed amendment cannot be allowed as inconsistent pleas cannot be taken in written statement, is erroneous – Inconsistent pleas which do not completely displace plaintiff or disrupt original defense of defendant can be taken in written statement – Proposed amendment is neither fundamentally changing nature of his case nor is inconsistent with his earlier defense, rather by necessary implication it is explanation to his earlier defense –Petitioner is permitted to carry out necessary amendment subject to payment of Rs.6,000/- as costs. [Paras 13, 15, 16, 18, 20]
Result: Revision petition allowed.
ORDER
T. Vinod Kumar, J.—This Civil Revision Petition is filed aggrieved by the order dated 20.09.2022 in I.A. No. 449 of 2022 (previously numbered as I.A.No.1276 of 2019) in O.S. No.1218 of 2022 (previously numbered as O.S. No.994 of 2012) by the II Additional Senior Civil Judge, at Malkjagiri, Medchal Malkajgiri District, as being illegal and contrary to settled principles of law.
2. Heard Sri. Hari Kishan Kudikala, learned counsel for the petitioner and Sri. R.A. Chary, learned counsel for the respondent No.1 and perused the record.
3. The petitioner herein is the defendant No.1 in the suit filed for recovery of money by the respondent No.1 herein as the plaintiff.
4. The suit was instituted in the year 2012. The brief averments in the plaint are that the petitioner herein had borrowed a sum of Rs.6,00,000/- for his personal business and family needs from the respondent No.1 who is the husband of his niece. The said amount was agreed to be repaid within a period of one year @ interest of 1.50% p.m. In lieu of the same, on 30.06.2010, the petitioner herein had executed a promissory note on 30.06.2010 in favour of the respondent No.1. It is stated that the respondent No.2 herein had stood as a surety to the said document.
5. The petitioner herein had filed his written statement in 2012, partly denying the averments in the plaint. A brief summary of his defense in the written statement is as under:—
(i) The Court below did not have jurisdiction as the promissory note in question was scribed and executed by him at his residence in Miryalaguda.
(ii) The respondent No.1 herein, had taken a lease of the premises jointly owned by the petitioner herein and Mr. Bantu Saidulu i.e., father-in-law of the respondent No.1, for a monthly rent of Rs.10,000/- in order to run his business ‘Akshitha Core and Container Centre’.
(iii) The respondent No.1 requested the petitioner herein to invest a sum of Rs.6,00,000/- in his business offering 50% share in his business. As the petitioner herein had expressed his inability to arrange funds, the respondent No.1 had proposed to adjust the said amount against the rent due to the petitioner herein.
(iv) The promissory note in question was scribed and executed by him at the behest of the respondent No.1 herein in view of the arrangement. The respondent No.2 herein was present on the said date and had signed at the bottom of the promissory note as an attesting witness and not as a guarantor as alleged by the respondent No.1 herein.
(v) It is specifically stated that at the time of the execution of the promissory note, apart from the respondent No.2 there were no other attesting witnesses, and that the respondent No.1 herein had obtained the signatures of the alleged attesting witnesses at the time of institution of the suit.
6. The evidence of the petitioner herein as DW-1 was completed on 31.07.2019.
7. At this stage, the petitioner herein on 26.11.2019 had preferred an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) proposing to add the following lines in paragraph No.8 of his written statement:—
“on the date of 30.06.2010 the defendant No.1 was worked in Shanthinikethan Degree College, Beside Tahsildhar, Miryalaguda in between 09.00 am to 04.30 pm (except lunch time of 01.30 to 02.20 pm) as an history lecturer, so the alleged execution of promissory note at Hyderabad does not arise at all. It is falsely created for purpose of filing case Hyderabad.”
The respondent herein had filed his counter opposing the said application.
8. The Court below after hearing both sides, had observed that the petitioner herein had failed to exercise due diligence in seeking the proposed amendment and filing the application after the closure of the plaintiff’s evidence. Further, the court below observing that the proposed amendment was inconsistent with his defense in the written statement, had dismissed the application relying on Thonduri Changa Re
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Point of Law : Inconsistent pleas can be taken by the defendants without withdrawing wilful admission raised in the written statement.
The amendment of pleadings can be permitted to ensure justice, provided it does not prejudice the opposing party's rights.
The court has the discretion to allow amendments to the plaint, even if the mistake was made by the counsel, as long as the amendment does not change the cause of action or the substantial dispute on....
A categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. The attempt to change the entire stand from denying the execution of the agreement to admitti....
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Established limits for amending pleadings after trial onset under CPC provisions.
Point of Law : plea regarding exercise of due diligence and necessity of seeking amendment of written statement are conspicuously absent. Under such circumstances, the question of exercising due dili....
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