PATHIKONDA GOPALA RAO Vs. NAGIRI PEDDA KITAMMA
HIGH COURT OF ANDHRA PRADESH
PATHIKONDA GOPALA RAO
NAGIRI PEDDA KITAMMA
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(1.) The civil Revision Petition of filed as against the order of the District Munsif of Madanapalle refusing to permit the amendment of the plaint in O. S. No. 139 of 195 The suit was instituted by the plaintiff for the recoveryof moneys due from the defendant on dealings. The applicatioin for amendment was filed to permit him to sue as the manager of the joint family consisting of himself and his brother and also to implead his brother as the second plaintiff. The application was opposed by the defendant on the ground that by permitting the plaintiff to sue as the joint family manager, he will lose valuable plea of limitatioin. The District Munsif upheld the objection of thedefendant and dismissed the amendment application. This Civil Revision Petition is filed as against that order.
(2.) The short point for consideration is as to whether by permitting the plaintff to sue as the manager of the joint family a new case is introduced or the cause of action is in any way altered. The language of Or. 6R. 17, Civil P. C., is very wide. It enacts that:
"the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."As pointed out by Chandrasekhara Ayyar J., in -- Mokka Pillai v. Valavanda Pillai, AIR 1947 Mad 205 (A):
"There is nothing which prevents a Court, so far as I am able to see, from permitting persons suing in their individual capacity to sue as representative of a larger group, even during the stage of appeal."In -- Madhgouda Babaji v. Halappa Halappa, AIR 1934 Bom 178 (B), it was held that:
"in a suit brought by the manager of a joint Hindu family, the plaint need not contain a statement or indication to the effect that the plaintiff is suing as manager and that the interests of the defendant cane, however, be safeguarded by bringing all the co-parceners on the record of the suit."So, even withoiut an amendmeent, it is open to the plaintiff to establish that the amount is due to the joint familky and that the suit is filed by him in a representative capacity. But to avoid the technical objection raised by the defendant, the plaintiff has chosen to file the application for amendment and implead his brother as plaintiff 1. There is absolutely no change in the cause of action. No new case is sought to be put forward by reason of the amendment. The decision referred to by the District Munsif -- Ramachandra Naidu v. Kandaswamy Mudaliar, AIR 1949 Mad 416 (C), is really in favour of the petitioner herein. The observations of the learned Judge at pp, 416-417 support that view.The observations are as follows: The learned counsel for the petitioner urged that really a suit by a person like the plaintff, who happens to be the manager of the joint family at the time he filed the suuit, would be a suit filed by him as manager, whether be described himself like that or not as in the ordinary case of a Hindu familky manager suing on a promissory note or even on a sale deed that no question of limitation of a fresh cause of action would arise and that the plaintiffs only intention in filing the amendment petition was to describe himself more fully and correctly and to have an issue framed regarding his being the family manager on the dateof the suit and not to enlarge the scope of the claim in the suit or to defeat any limitation right accruing to the defendant. The short answer to this is that if there was nothing else intended by plaintiff by the amendment than to describe himself more fully and correctly, he can do so, even in hisown deposition and i do not apprehend that the lower court will prevent him from describing himself as he pleases subject to cross-examination."
(3.) But having regad to the facts of the particular case that no proper notice was issued under S. 80, civil P. C., the learned Judge confimed the order of the trial court dismissing the application for amendment.;
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