The amendment of pleadings can be permitted to ensure justice, provided it does not prejudice the opposing party's rights.

ORDER:

The respondent herein had filed O.S.No.177 of 2016 before the Learned VIII Additional District Judge, Eluru for recovery of a sum of Rs.17,18,000/- from the petitioners herein, on the ground that they had taken a loan of Rs.10,00,000/- to be repaid with interest and had also executed a promissory note to that effect on 29.12.2013. The respondent took the plea that the said amount was not paid when a demand was made and that the respondent had to approach the Court for recovery of the said money.

2. The petitioners herein had filed a written statement stating that they had never executed any promissory note nor taken a loan of Rs.10,00,000/-. The petitioners also stated that they had taken a loan of Rs.1,00,000/- along with their father and had executed a simple mortgage deed in favour of the respondent as security for repayment of the said sum of Rs.1,00,000/-, which was repaid subsequently. The petitioners contended that the respondent after receiving the said amount had not executed the mortgage release deed and had created the suit pro-note for filing a false suit. The petitioners referred to pendency of two suits being O.S.No.96 of 2016 and O.S.No.229 of 2016 before the Learned Senior Civil Judge, Tadepalligudem for relief of specific performance of an agreement.

3. In the course of the suit, the respondent had filed his affidavit in lieu of chief examination for commencement of trial. At that stage, the petitioners moved I.A.No.498 of 2023 for amendment of their written statement. The proposed amendment sought to insert paragraph-6 (A) in the written statement. This paragraph contained statements about the incapacity of the respondent to lend a sum of Rs.10,00,000/- and the circumstances in which the loan of Rs.1,00,000/- was taken and the manner in which the mortgage deed had been executed. An additional plea of the petitioners not being available in the locality when the said pro-note is said to have been signed was also raised.

4. This application was dismissed by the Trial Court, by an order dated 13.06.2023.

5. The Trial Court, after hearing both sides, had dismissed the application on the ground that the proviso to Order VI Rule 2, prohibits amendment of written statement after commencement of trial and also on the merits of the case. The Trial Court had taken the view that the proposed amendment was introducing a totally new case and a case which is contrary to the earlier pleadings.

6. Aggrieved by the said order, the petitioners have approached this Court.

7. Heard Sri Sai Gangadhar Chamarthy, learned counsel for petitioners and Sri Yallabandi Ramatirtha, learned counsel for the respondent.

8. Sri Sai Gangadhar Chamarthy, learned counsel would rely upon the judgement of the erstwhile High Court of Andhra Pradesh reported in Brij Gopal Pallod and others vs. Municipal Council rep by G. Vasudeva Reddy, Asst. Executive Engineer, Zaheerabad Municipality, Medak District, 2013 volume 2 ALT 353 to contend that mere filing of an affidavit in lieu of chief examination would not amount to commencement of the trial in the suit and that the said filing of the affidavit in lieu of chief examination would not bar the filing of an application for amendment of the pleadings.

9. He would further submit that the defendant is always entitled to take contradictory stands in the written statement and in any event the amendment only seeks to give further details relating to the basic stand taken by the petitioners that they had not executed any pro-note and the only transaction between them and the respondent was a loan transaction of Rs.1,00,000/- for which a simple mortgage deed had been executed by them.

10. Sri Yallabandi R