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Bhagavatula Gopalakrishnamurthi And Others v. Dhulipalla Sreedhara Rao And Another
Factual and Procedural Background
The petitioners are defendants No. 14 and 22 in O.S. No. 59 of 1945 before the Subordinate Judge, Tenali. The underlying suit sought partition and possession together with setting aside certain alienations. The father of the plaintiffs (a defendant in the suit) had been adjudicated insolvent and the Official Receiver was made a party. The suit challenged alienations made by both the father and the Official Receiver. Paragraph 5 of the original plaint alleged, in substance, that no proper vesting order had been passed in favour of the Official Receiver, that the Official Receiver could only deal with the insolvent father's half share, that the Official Receiver sold the insolvent's interest in items 6 to 17 of Schedule B without covenanting as to title, and that purchasers acquired no more than the father's half share.
While the suit was pending, the Provincial Insolvency Act was amended by insertion of S. 28A (by Act XXV of 1948), and the amendment — which was declared retrospective — was said to have given the Official Receiver authority to sell the son's share as well. The plaintiffs applied (I.A. No. 1047 of 1948) for leave to amend the plaint by adding paragraph 5A, which alleged (a) that under Act XXV of 1948 the Official Receiver stood in the same position as the father regarding alienation of joint family properties to pay the father's debts and had no greater powers, and (b) that the Official Receiver's sales of items 6 to 17 were for grossly inadequate prices, were rushed, and were therefore not binding on the plaintiffs' half share.
The learned Subordinate Judge allowed the amendment. The present petition challenged that order and raised the question whether the amendment ought to have been permitted.
Legal Issues Presented
- Whether the court correctly permitted the plaintiffs to amend the plaint to introduce new factual allegations (paragraph 5A) about the alleged inadequacy and haste of the Official Receiver's sales where those factual allegations were available to the plaintiffs at the time the original plaint was filed.
- Whether a subsequent change in statutory law (the retrospective insertion of S. 28A in the Provincial Insolvency Act by Act XXV of 1948) justified permitting the plaintiffs to plead additional facts not previously included in the plaint.
Arguments of the Parties
Petitioners' Arguments (defendants Nos. 14 & 22)
- The amendment should not have been allowed because it set up a new case based on fresh facts which were available when the plaint was originally filed but were not pleaded then.
- Allowing the amendment amounted to permitting an afterthought; the facts sought to be introduced were available earlier and could have been pleaded originally.
- The counter affidavit expressly characterized the proposed amendment as an afterthought.
Plaintiffs' Arguments (respondents)
- The insertion of S. 28A (Act XXV of 1948) changed the legal position of the Official Receiver, making it necessary to consider the matter from a new standpoint and justify the proposed amendment.
- Counsel for the respondents relied on authority (cases cited) to the effect that subsequent events occurring after filing of the plaint may justify amendment of pleadings to claim reliefs accruing from those events.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mettu Bhimudu v. Duggirala Pitchayya, 1916-1 M.L.J. 462 : A.I.R. (33) 1946 Mad. 497 | Cited by respondents' counsel to support the proposition that subsequent events may permit amendment of pleadings. | The court treated this case as illustrating that where subsequent events give rise to rights, a plaintiff may amend to claim reliefs arising from those events; but found it inapposite where the facts relied upon were available earlier and simply not pleaded. |
| Venkataratnam v. Venkamma, 23 M.L.W. 618 : A.I.R. (13) 1926 Mad. 754 | Cited to support that amendment may be permitted in view of subsequent events. | The court acknowledged the authority but distinguished it on the ground that those decisions concerned rights arising from subsequent events, whereas here the facts were pre-existing and omitted from the original plaint. |
| Sakkaraja v. Muthuswami, 71 M.L.J. 166 : A.I.R. (23) 1936 Mad. 632 | Cited in aid of the same submission that amendments can be permitted after subsequent events. | The court similarly treated this as supporting the general principle about subsequent events but held it did not justify the amendment in the present case where the facts pleaded were available earlier. |
| Ma Shwe Mya v. Maung Mo Hmaung, 48 Cal. 832 : A.I.R. (9) 1922 P.C. 249 | Cited for the principle that courts should not permit a new case to be made on facts which were available but were not pleaded. | The court relied on this Privy Council authority to hold that permitting the amendment would allow a new case to be made on previously available facts, and therefore the amendment was impermissible. |
Court's Reasoning and Analysis
The court began by examining paragraph 5 of the original plaint and observed that, other than relying on the position of law under the Provincial Insolvency Act as it stood prior to S. 28A, the plaintiffs had not pleaded facts as to the nature of the sales, the consideration realised, or any invalidity of the sales except under the earlier statutory provisions.
The court noted that the plaintiffs, after the statutory amendment (S. 28A by Act XXV of 1948), sought to introduce paragraph 5A alleging facts of inadequacy and undue haste in the Official Receiver's sales. The learned Subordinate Judge had allowed this amendment.
The petitioners argued that the proposed paragraph 5A introduced a new case based on facts available at the time the plaint was originally filed and that the amendment was therefore an afterthought. The respondents relied on authorities to the effect that subsequent events may permit amendment. The court carefully examined those authorities and distilled the governing principle: where subsequent events give rise to new rights, a plaintiff may properly amend to claim reliefs flowing from those events.
However, the court contrasted that principle with the situation at bar: the facts the plaintiffs now sought to aver were not facts that only arose after the plaint was filed — they were facts available to the plaintiffs at the time of filing but omitted. Relying on the Privy Council decision in Ma Shwe Mya v. Maung Mo Hmaung, the court held that permitting a party to introduce a new case on facts that were available but were not pleaded would be impermissible. Allowing the amendment would introduce a new element absent from the original plaint.
On this basis the court concluded that the learned Subordinate Judge erred in permitting the amendment and that the petitioners' challenge to that order succeeded.
Holding and Implications
Holding: The petition is allowed; the order of the Subordinate Judge granting the amendment is set aside and the amendment is not permitted.
Implications:
- Direct effect: The amendment sought by the plaintiffs (paragraph 5A) is disallowed; the order permitting that amendment is held to be erroneous and the petitioners succeed with costs.
- Broader implication: The court's decision rests on established pleading principles — namely, that courts should not permit a new case to be founded on facts that were available to a party but not pleaded. The opinion does not purport to lay down a novel legal principle beyond applying those authorities to the facts of this case.
Reference in the source opinion: "C.R.K/D.H" and the succinct record: "3. Petition allowed."
1. Petitioners are defendants 14 and 22 in O.S No. 59 of 1945 on the file of the Court of the Subordinate Judge, Tenali.
2. The suit was for partition and for possession after setting aside certain alienations. The defendant is the father of the plaintiffs. He was adjudicated insolvent and the Official Receiver was made a party to the suit. The suit relates to the setting aside of alienations not only made by the father but also by the Official Receiver and para. 5 of the plaint states:
“There was no proper vesting order passed in favour of the Official Receiver. Neither the half share of plaintiff 1 nor the father's power to sell the same was or could be vested in the Official Receiver in I.P No. 33 of 1930. The latter could if at all deal with defendant 1's half share. The Official Receiver sold the insolvent's right title and interest in the properties mentioned as items 6 to 17 of Sch. B without covenanting for the existence or extent of the title of the insolvent ….. These defendants did not acquire title to any more than the half share of defendant 1.”
During the pendency of the suit, the Provincial Insolvency Act was amended by the addition of S. 28A and by reason of the amendment the Official Receiver, who was in possession of the estate of the insolvent became entitled to sell the son's share as well and that the Amending Act was declared to have retrospective effect. The plaintiffs filed I.A No. 1047 of 1948 for amendment of the plaint by seeking to introduce the following paragraph as para. 5A.
“The plaintiffs submit that under Act XXV [25] of 1948 the Official Receiver is in exactly the same position as the father in the matter of alienation of joint family properties to pay the father's debts and has no higher or different powers than the father would have had, if he was selling the property himself for his own debts. Plaintiffs submit that the sales by the Official Receiver of items 6 to 17 of the plaint B schedule were for grossly inadequate price. Plaintiffs also learn that the sales were rushed through in undue haste and that the prices realised were miserably low. The sales are not therefore binding upon the plaintiff's half share.”
The learned Subordinate Judge granted the amendment. The question is whether the order of the learned Judge is correct. In para., 5 of the original plaint, except that the plaintiffs relied on the position of law, they did not choose to make any statement as regards the nature of the sale, consideration therefor and it invalidity otherwise than under the provisions of the Provincial Insolvency Act before the enactment of S. 28A of the Act. But they have now chosen to give certain facts and want to plead those facts in order to entitle them to have the sale set aside. It is argued on behalf of the petitioner that the Court was not entitled to allow such an amendment as a new case was set up on fresh facts, which facts were available even when the plaint was originally filed but no mention was made in para. 5 of the plaint. In the counter affidavit it is also stated that this is clearly an afterthought. In the affidavit in support of the application it is stated that by reason of the amendment of the Provincial Insolvency Act by Act XXV [25] of 1948 it became necessary to examine the question from this new standpoint and therefore the plaintiff prayed that the amendment might be allowed. The learned counsel for the respondents cited Mettu Bhimudu v. Duggirala Pitchayya, 1916-1 M.L.J 462 : (A.I.R (33) 1946 Mad. 497), Venkataratnam v. Venkamma, 23 M.L.W 618 : (A.I.R (13) 1926 Mad. 754 and Sakkaraja v. Muthuswami, 71 M.L.J 166 : (A.I.R (23) 1936 Mad. 632) in support of his contention that by reason of subsequent events occurring after the filing of the plaint it was open to the Court to grant amendment. But on examining those decisions I find that if by reason of the subsequent events certain rights accrued to the plaintiff the plaintiff would be entitled to claim reliefs under those rights. But in this case certain facts are alleged which facts were available to the plaintiffs and which the plaintiffs have not chosen to mention in the original plaint and I do not think it would be open to Courts to permit such an amendment as it would, in the words of their Lordships of the Privy Council in the case reported in Ma Shwe Mya v. Maung Mo Hmaung, 48 Cal. 832 : (A.I.R (9) 1922 P.C 249), permit a new case to be made on facts which were available but were not pleaded. I think that the result of allowing the amendment would be to introduce a new element which was absent in the original plaint and that the plaintiffs are not entitled to any such amendment. I hold that the learned Subordinate Judge was in error in granting the amendment. The petition is allowed with costs.
C.R.K/D.H
3. Petition allowed.
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