Decided on January 21,1972



- (1.) There to Civil Revision Petitions are directed against common Order presed by the Subordinate Judge, Chirala, on interlocutury Applications Nos. 26 and 29 of 1970 in O.S. Nos. 3 and 10 of the 1970. Since both the Civil Revision Petitions give rise to a common question of law, they are disposed by a common order. He material facts leading to the filing of these Civil Revision petitions may briefly be stated:Defendant No. 2, as the Managing Partner of defendant No. 1 firm, executed two promissory notes, one la favour of Yarlagadda Baliah and the other in favour of Indlamudi Veeriah, Four one-anna denomination stamps were affixed on each of those promissory notes instead 67 0-23 paise stamps as required by law. Since the promissors did not pay the moneys due by them, the promises, Yarlagadda Baliah and Indlamudi Veeriab, filed suits for the recovery of moneys due tb them under those promissory notes. Those original Suits were re-numbered asO.S. No.5 of 1910 and No, 10 of 1970 on the file of the Subordinate Judge, Chirala. In their respective written statements the defendants. inter alia raised an objection that the suit promissory notes were not duly stamped according to law and hence, on that account inadmissible in evidence under Section 35 of the Stamp Act. In O.S. No. 5 of 1970 the aforesaid obection raised by the defendants was over-ruled by the Subordinate Judge, who, by his order dated 17-12-1963, held that the suit primissory note was duly stamped and was admissible in evidence. The defendants carried the matter in revision to this Court in C.R.P. No, 613 of 1964. A Division Bench of this Court allowed the said revision petition holding that the suit promissory note was not duly stamped and was, consequently, inadmissible in evidence. The question whether the suit could be considered on the cause of actionas stated in the plaint, or the plaintiff should be permitted to amend the plaint so as to fall back on the original cause of action, was left open to be decided by the trial court. In those circumstances, in both the original Suit Nos. 5 and 10 of 1970 the, plaintiffs filed I A. Nos. and 26 and 29 of 1970 respectively for amendment of their plaints, so as to fall back on the original causes of action.
(2.) The Subordinate Judge, Chirala, by his common order dated 13-11-1970 dismissed both the I. As, with costs, against which the present Civil Revision Petitions are filed. The learned counsel, Sri R.V. Vidya Sagar, appearing for the petitioners, submitted that it is now well established that all amendments which are necessary for the purpose of detefming the real questions in controversy between the parties,. when they do not work injustice or prejudice to the other side, should be allowed. Courts have allowed amendments even at the stage of appeal, though the suits on the dates of amendment petitions were barred by limitation. The real controversy in these suits was, whether the respondents are indebted to the petitioners. The delay in filing the interlocutory applications for amendment of the plaints, was due to the fact that the lower court had held the promissory notes to be admissible in evidence, but the High Couyt reversed the view of the trial court. Although the promissory notes arc inadmissible in evidence, as promissory notes, to prove the respondens liabilities, still they can be used and locked into for the collateral purposes as acknowledgments extending the periods of limitation for filling the suits on the basis of the original causes of action Genuine claims should not be permitted to be defeated for technical reasons by refusing permission to amend the plaints. In support of the above arguments, the learned counsel relied upon a number of decided casesof the Supreme Court, this Court and various other High Courts. On the other hand, the learned counsel appearing for the respondents submitted that the revlson petitions are not maintainable, for the simpie reason that, even assuming that the lower Court had taken an erroaneon view of law, this Court would not, in the exercise of its revisional power, correct errors of law. Assuming these revfsion petitions are maintainablestill as a rule, amendments of plaints will not be permitted when the sutis are barred on the dates of amendment petitions so as to deprive the deferdants of a valuable defence of the plea of limitation. If amendments are allowed in such cases after long delays, the defendants will be prajudiced and it will work injustice to the opposite-party. Therefore, the trial judge, rightly dismissed the amendment petitions. No un-stamped or inser fllciently stamped promissory notes cen be admitted in evidence under sec tion 35 of the Stamp Act, for any purposes whatsoever, Inadmissible promissory notes, cannot, as acknowledgements, extend the periods of limitstion to as to bring the suits based on original causes of action within time when they would actually be 'barred. The decisions'relied upon by the learned. Counsel appearing for the petitioners are only cases where, on the dates of amendment petitions, the suits were barred by limitation. The instant cases are those where the suits on the basis of the original causes of action are not only barred on the date of the ame dment petitions, but also on the dates of filing of the suits. Hence such amendment cannot be permitted in law. In support of this argument, thc learned counsel relled upon various decisions. 1 will first decide the question of the maintanability of the revision petitions. What the Supreme Court has held in Fanduraag Dhondi Chongale & others v. Maruti Heri Jadhave & others] is that the High Court While exercising its jurisdiction under section 115 of the Civil Procedure Code, cannot correct errors of fact, however gross they may be, or even errors of law, unless those errors have got relation to the jurisdiction of the Court to try the dispute itself. The question of permitting or. refusing to permit amendment of pleadings, in my opinion, relates to the question of jurisdiction of the court to try the suit. If the Court allows an amendment of pleadings when, in law, it ought not to, it would mean that the Court had assumed jurisdiction which did not vest in it. If the Court wrongly refuses to permit an amendment, it would mean that the Court had failed to exercise the jurisdiction vested in it. In either case, the question of amendment of pleadings relates to the jurisdiction of the Court to try the suit, and hence the present Civil Revision Petitions ate maintanable. The preliminary objection to the maintainability of the Civil Revision Petitions raised by the respondent's Counsel is, therefore, without substance and is, accordingly rejected. Before I consider the merits, some more facts are required to be stated. The suit promissory note in O. S. No 5 of 1970 was executed by the defendantion 17-12-1958 in renewal of an earlier promissory note dated 17-12-1955 for a sum of Rs. 6.800/- O.S.No. 15 of 1970 was filed in the proper Court' on 18-12-1961, i.e., on the last date of limitation from the date of suit promissory note, 17-12-1961 the proceeding day being Sunday and a public holiday. O.S.No. 10 of 1970 was filed on 16-12-1961 on the basis of. the promissory note dated 16-11-1958 executed defendant No. 2 in renewal of an carlirar promissory note. It was stated that the loans are evidenced by sntries in the account-books. The suits were filed in 1961 and notwith- standing the defences raised by the defendants in their 4 writen statements that the suit promissory notes were not duly stamped and were inadmissible in evidence, the respective plaintiffs filed amendment petitions, i. e , I. A. Nos. 26 and 29 of 1970 in the year 1970. The Learned Subordinate Judge observed that, in the plaints, the respective plaintiffs did not refer to the original transactions of loan. The learned counsel, Sri R.V. Vidya Sagar disputed that observation of the Subordinate Judge. In one case the plaint copy has been shown to me, but was not filed as a material paper. The plaint in the of her suit was stated to be on the same terms. The plaint copies in both the suits have, however; not been (filed in these Civil Revision Petitions, as meteriat papers. To rely upon documents in Civil Revision Petition's without filing copies of those documents is not a commendable practice, However, the question of correctness or otherwise of the observation of the Subordinate Judge need not be decided in these Civil Revision Petions. The learned Subordinate Judge dismissed the interlocutory Applications, observing that: " If the petitioners are now allowed to amend the plaint and introduce, original causes of action which were not originally pleaded in the plaint, it would amount to allowing the plaintiffs to bring fresh claims based on original consideration which had clearly become time barred...."
(3.) The principles governing the amendments of pleadings are now weft establisbed. In Pirgonda Hongonda Patil, v. Kalgonda Shilgoada Patil & othres]1. the Supreme Court laid down the following principles which sovern the question of amendment of pleadings; "... All amendments ought to be allowed which satisfy the two conditions (a) not working in justice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refured only where the other party cannot be placed in the same position as if the pleading bad been originally correct, but the amendmen would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff soeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must bs refused; to allow it wolud cause the defendant an injury which could not be compensated- by costs, by depriving him of a good defence to the claim. The ultimate test therefore still remains the same; can the amendment be allowed without injustice to the other side.........". in L J Leach & Co Ltd. Y. Jardine Skinner & Company 1, the Supreme Court held that: "......It is no doubt true that Courts would as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice." In A. K. Gupta & Sons Ltd T. Damodar Valley Corporation 2, the Supreme Court held that: "......In the matter of allowing amendment of pleadings the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constituted the addition of a new cause of action or raise, a different case, but amounts merely to a different or additional approach to the same facts, the amendment is be allowed even after expiry of the statutory period of limitation......";

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