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Case Number
Judges
  • Chandra Reddy, J.
Acts
  • 6 rule 17 g. P. C.
  • 6 rule 17
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chandra Reddy, J.
Acts
  • 6 rule 17 g. P. C.
  • 6 rule 17
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Smart Summary

Structured Summary of the Court's Opinion

Factual and Procedural Background

The plaintiff (petitioner) sued four defendants to recover Rs. 437-3-0. The claim was founded on a document described in the plaint as a "gurthu lekha." The defendants' primary defence was that the "gurthu lekha" was in truth a promissory note containing a recital that the money would be paid on demand and, being unstamped, could not form the basis of a suit.

To meet that objection, the plaintiff applied for permission to amend the plaint to base the claim instead on an earlier, original borrowing. The plaintiff alleged that the money had been borrowed at about 9 a.m. on 21-1-1950, while the document originally relied upon was executed two or three hours later as security for repayment.

The defendants opposed the amendment on three grounds: (1) the affidavit supporting the proposed amendment was untrue; (2) the facts now alleged were known to the plaintiff when the suit was instituted and therefore should have been included originally; and (3) allowing the amendment would deprive the defendants of the plea of limitation because the suit was, they contended, barred on the date of the application for amendment. The trial court accepted the objections and dismissed the amendment application. The plaintiff sought revision of that order.

Legal Issues Presented

  1. Whether the trial court should have allowed the plaintiff to amend the plaint to base the suit on the original borrowing (i.e., whether the proposed amendment is permissible).
  2. Whether an amendment should be refused solely because the facts it seeks to introduce were known to the plaintiff at the time the suit was instituted (and were omitted from the original plaint), particularly where the amendment would result in a "new case."
  3. Whether the amendment should be refused because it would deprive the defendants of the plea of limitation (i.e., whether a claim barred by limitation at the time of amendment can be allowed by amendment in any circumstances).
  4. Whether the truth or falsity of the allegations underlying the proposed amendment can be determined at the interlocutory stage when deciding the amendment application.

Arguments of the Parties

Petitioner's (Plaintiff's) Position

  • The plaintiff sought leave to amend the plaint to base the claim on the original borrowing (alleged to have occurred around 9 a.m. on 21-1-1950), asserting that the document originally relied upon was executed later the same day as a security.
  • The petitioner relied on authority and precedent favourable to allowing amendments where doing so would enable the real issues between the parties to be adjudicated, in particular judgments allowing amendments despite the facts being previously available to the plaintiff (cited through learned judges such as Umamaheswaram and Venkata Subbarao).
  • The petitioner implicitly contended that the defendants would not be prejudiced by the amendment because the question of limitation would be addressed at trial (and because an endorsement of payment on 23-2-1952, relied on in the original plaint, might render the suit timely).

Respondents' (Defendants') Arguments

  • The defendants argued that the affidavit's account — that the original borrowing was separate from the later document — was untrue.
  • They contended that the facts now sought to be added were known to the plaintiff when the suit was instituted and that the plaintiff should not be permitted to introduce a new case by amendment after choosing not to plead those facts originally.
  • They argued that allowing the amendment would deprive them of the defence of limitation because, on their case, the suit was barred at the date of the application for amendment; they relied on a Privy Council decision (Bhagwanji Morarji v. Alembic Chemical Works) in support of this submission.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gopalakrishna Murthi v. Sreedhara Rao (Krishnaswamy Naidu J.) Held that if a party possessed certain facts and did not refer to them in the plaint, he should not be permitted to amend the plaint to state those facts where they would constitute a new case. The court noted this position but observed that it appears contrary to the broader trend of decisions favouring amendments to adjudicate real issues; the court did not adopt this strict rule as absolute.
Gopalarao v. Kitamma (Umamaheswaram J.) Dissenting view: it is not right to refuse amendment merely because the facts sought to be introduced were known when the action was laid; amendments should be allowed if they cause no injustice. The court expressly agreed with this opinion and adopted its flexible approach to amendment applications.
Weldon v. Neal (Lopes L.J.) Observation: "however negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side." The court cited this statement as supportive of the proposition that amendments should be allowed where they do not cause injustice to the other party.
Srirangam Chettiar v. M. Sornam Pillai (Venkata Subbarao J.) Interpreting Order 6 Rule 17 (G.P.C.): general rule that leave to amend will be granted to enable the real question in issue to be raised, where amendment occasions no injury except what can be compensated by costs or other terms. The court relied on this articulation of the principles governing amendments, emphasizing the need to adjudicate the real issues and to allow amendments in the interest of justice subject to conditions.
Dharamalinga Chetti v. Krishnaswamy Chetty Support for the proposition that the truth or falsity of allegations should not be determined at the stage of an amendment application but at the trial. The court relied on this authority to reject the argument that the amendment should be denied because the affidavit's allegations were "obviously false" at the interlocutory stage.
Bhagwanji Morarji v. Alembic Chemical Works (Privy Council) A refusal to allow amendment where, on the facts, any claim under the alleged implied agreement would have been barred by limitation at the time leave to amend was sought. The court read this decision as fact-specific and not laying down a general proposition that amendments can never be allowed where the claim would be time-barred on the date of amendment; it treated it as support for a discretionary refusal in that case only.
Charan Das v. Amir Khan (Privy Council) Statement that courts have full power to amend but should as a rule not exercise it where effect is to take away from a defendant a legal right accrued by lapse of time; exceptions may exist in special circumstances (with an example cited). The court relied on this formulation to explain that while amendments that defeat accrued limitation rights are normally disfavoured, special circumstances can outweigh that consideration.
Mohummud Zahoor All Khan v. Rutta Koer (1867) 11 Moo. I. A. 468, 485 Example cited by the Privy Council as a case where considerations favouring amendment outweighed the lapse-of-time objection. Referred to as an example supporting the possibility of allowing amendments despite lapse-of-time objections in special circumstances.
Muthaiah Chettiar v. Chidambaram Chetti Authority indicating the rule against allowing amendment which takes away limitation rights is not absolute; later adopted in a number of cases. The court cited this as support for the non-absolute character of the restriction on amendments affecting limitation pleas.
Chellam Sakka Raja v. Muthusami Moopar (Venkatasubbarao J.) Held that amendment of the plaint can be allowed even though the claim based on the original cause of action was, on the date of application for amendment, barred by limitation, where justice requires it. The court relied on this decision as a direct precedent for permitting an amendment despite a limitation difficulty when special circumstances (and the interest of justice) justify allowance.
Muthammal v. Gurusami Nayakkan (Venkatasubbarao J.) Explains distinction between taking away an existing right from a defendant (which amendments ordinarily should not do) and depriving a defendant of a bare right to raise a plea of limitation. The court adopted this distinction to explain why depriving the defendant of only a "bare right" to plead limitation may not be a sufficient reason to refuse an amendment in appropriate circumstances.

Court's Reasoning and Analysis

The court framed the central issue as whether the trial court should have allowed the plaintiff to amend the plaint. The analysis proceeded along several interrelated lines:

  1. On the objection that the proposed amendment introduced facts known to the plaintiff when suit was instituted, the court reviewed conflicting judicial views. It contrasted the strict approach in Gopalakrishna Murthi v. Sreedhara Rao (which would preclude amendment where the party already had the facts and the amendment would make a new case) with the more flexible approach in Gopalarao v. Kitamma and allied authorities. The court accepted the flexible approach: whether an amendment should be allowed depends on the particular facts and whether, in the interest of justice, it is necessary to adjudicate the real issues.
  2. The court emphasized the doctrine embodied in Order 6 Rule 17: the general rule is to grant leave to amend to enable real questions in issue to be raised, provided the amendment will not occasion injury to the opposite party that cannot be compensated by costs or other terms. The principal consideration is whether the amendment is necessary in the interests of justice and for adjudicating the real controversy.
  3. As to the contention that the affidavit allegations were "obviously false" and therefore the amendment should be denied, the court held that the truth or falsity of those allegations could not be determined at the amendment stage. That factual determination must await trial; if the recitals prove false, the suit will fail at trial. The court relied on precedent to justify refusing to undertake a mini-trial on truthfulness at the interlocutory stage.
  4. On the limitation objection, the court examined authorities, including Privy Council decisions, and concluded that those decisions do not lay down an absolute bar to amendment whenever a claim would be time-barred at the date of the amendment. While ordinarily courts should not exercise amendment powers so as to take away an accrued legal right by lapse of time, special circumstances can justify allowing an amendment. The rule is therefore discretionary and fact-sensitive.
  5. The court then applied these principles to the facts of the case. It observed that the dates relevant to limitation made the issue academic in the present proceeding: both the original borrowing and the document relied on in the originally filed plaint were dated 21-1-1950, and the suit was instituted on 27-9-1953. To avoid limitation, the plaint as filed relied on an endorsement of payment dated 23-2-1952; if that endorsement is admissible and sustainable, the suit would be in time both when instituted and when the amendment was sought. The admissibility of the endorsement must be determined at trial.
  6. Given that the limitation issue could turn on evidence admissible at trial, the court concluded the defendants would not be deprived of any substantive right by allowing the amendment; they would retain the opportunity to raise limitation at trial. The court therefore found that the trial court erred in dismissing the amendment application and that the amendment should have been allowed on suitable terms.

Holding and Implications

Holding: The revision petition was allowed and the court held that the trial court should have permitted the amendment of the plaint. The court ordered that the plaintiff (petitioner) pay Rs. 25/- to the defendant in the lower court by way of costs within one month from the date of receipt of the records in the lower court. In the revision proceedings, the parties were directed to bear their own costs.

DISPOSITION: Petition allowed; amendment should have been permitted on terms (payment of Rs. 25/- as directed).

Implications: The direct effect is that the plaintiff may amend the plaint as sought, subject to the terms ordered (payment of Rs. 25/- to the lower court defendant). The defendants remain able to contest the matters at trial, including the truth of the plaintiff's recitals and any plea of limitation. The court applied and reiterated the established discretionary approach to amendments under Order 6 Rule 17 rather than announcing any new or absolute rule.

Show full summary ...

    Sheik Murugula Ramtumia Alias Rahamtula v. Yadala Peda Mastan Seth And Others

    (1) The plaintiff is the petitioner. He filed a suit against the four defendants for recovering a sum of rs. 437 - 3 - 0. The claim was founded on a document described as ' gurthu lekha. ' the main defence to the suit was that the document called ' gurthu lekha ' was really a promissory note as it contained a recital that the money would be paid on demand and since this document was not stamped no suit could be based on it. To get over thil objection, the plaintiff sought the permission of the court to amend the plaint by allowing him to base the claim on the original borrowing. It was alleged that the money wag borrowed at about 9 a. M. On 21 - 1 - 1950, but the document originally relied on was executed two or three hours later as a security for repayment of the debt. This application was opposed by the defendants on various grownds:

    (1) that the present story as set out in the affidavit in support of the petition for amendment that the original borrowing was dissociated from the document is untrue : (2) that the facts now alleged must have been known to the plaintiff and not having chosen to state them in the original plaint, he should not be permitted to introduce them at this stage by way of amendment; and (3) that they would be deprived of the plea of limitation as the suit was barred on the date of the application for amendment. Accepting the objections, the trial court dismissed the application for amendment. Hence this revision petition.

    (2) The main point for determination in this revision is whether the amendment should have been allowed: in support of the contention that if the facts alleged in the proposed amendment of the plaint were known to the plaintiff at the date of the institution of the suit and yet he did not mention them in the original plaint, it would not be open to allow an amendment permitting the plaintiff to introduce these recitals where it would result in a new case being made out, reliance is placed on a judgment of mr. Justice krishnaswamy naidu in gopalakrishna murthi v. Sreedhara rao. The learned judge decided that if a party was in possession of certain facts and yet did not refer to them he should not be permitted to amend the plaint so as to enable him to state those facts if the facts would constitute a new case. On the other hand, the petitioner cites to me a judgment of mr. Umamaheswa - ram j. In gopalarao v. Kitamma , in which the learned judge dissented from that. In the opinion of mr. Justice umamaheswaram, it would not be right to refuse an amendment on the ground that the facts which were sought to be introduced in the plaint by way of amendment were known to the parties at the time when the action was laid. He referred to the observations of lopes, l. J. In weldon v. Neal: "however negligent or careless the first omission and however late the proposed amendment, the amendment, should be allowed if it can be allowed without injustice to the other side. " 1 respectfully agree with the opinion expressed by mr, justice umamaheswaram in gopala rao v. Kitamma. Whether an amendment should be allowed in a given case or not depends upon its particular facts. It could not be postulated that in every case where certain facts were available to a party and yet were not mentioned in the plaint he should be precluded from alleging them in the plaint by way of amendment of the plaint. The opinion expressed by mr. Justice krishnaswamy naidu in gopalakrishna murthy v. Sretdhara rao seems to be opposed to the trend of decisions which lay down the proposition that the amendment should be allowed in order to effectually adjudicate upon the real issues arising in a case. As pointed out by justice venkata subbarao in srirangam chettiar v. M. Sornam pillai in an application under order 6 rule 17 g. P. C. Which gives the court power to order amendment, 'the general rule is that leave to amend will be granted so as to enable the. Real question in issue to be raised, where the amendment will occasion no injury to the opposite party except such as can be sufficiently compensated for by costs or other terms to be imposed by the order. " the principal question to be borne in mind in considering whether an amendment should be allowed or not is whether such amendment is necessary in the interests of justice and to adjudicate upon the real issues arising in the suit. Of course, if the court comes to a conclusion that an application is not a bona fide one, it is always open to it to reject it.

    (3) The order of the trial court is also sought to be supported by mr. Narasimharao on the ground that the allegations in the affidavit based on the original borrowing are obviously false and therefore no useful purpose would be served by allowing such amendment. But i do not think that this is the stage at which the truth or otherwise of the allegations could be decided upon. This would be gone into at the time of the trial of the suit, and if the recitals are false the suit fails. This view of mine gains support from dharamalinga chetti v. Krishnaswamy chetty

    (4) There remains the question whether the amendment should be disallowed for the reason that the defendants would be deprived of the plea of limitation. It is strenuously argued by mr. Narasimha rao that any amendment which will have such an effect should not be allowed and he calls in aid a judgment of the privy council in bhagwanji morarji v. Alembic chemeal works. The passage which is said to support the contention of mr. Narasimha rao is this:

    " the court refused leave to amend, and the appellant has argued before the board that such refusal was wrongful. In their lordships'view the court of appeal in india was right to refuse leave to amend, since at the time when leave to amend waa sought any claim under the alleged implied agreement would have been barred by limitation"

    I do not think that their lordships by these remarks intended to lay down a general proposition of law that in no case should leave to amend be granted if on the date of the amendment the claim would have been barred by limitation. On the facts and in the circumstances of that case, their lordships thought that the lower court was right in not complying with the request for amendment. In charan das v. Amir khan the privy council stated the rule in these terms:

    " that there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example mohummud zahoor all khan v. Rutta koer (1867) 11 moo. I. A. 468, 485) where such considerations are outweighed by the special circumstances of the case."

    It is thus clear that normally a court will not exercise the power conferred upon it under order 6 rule 17 c. P. G. To order the amendment if it has the effect of depriving a party of the defence of limitation. But, there may be cases in which special circumstances exist. That the rule is not an absolute one appears also from muthaiah chettiar v. Chidambaram chetti. This wai adopted subsequently in a number of cases.

    (5) In chellam sakka raja v. Muthusami moopar justice venkatasubbarao following the judgment of the privy council allowed an amendment of the plaint notwithstanding the fact that the claim based on the original cause of action was, on the date of the application for amendment, barred. At page 168 of the report this is what the learned judge remarks:

    " hard pressed as the plaintiff is, he is driven to rely upon various alternative causes of action, in order to get rid of a technical plea calculated to defeat his claim which, as i have said, is a just one. In such a case i think it is the duty of a court not to place any kind of obstacle in the way of the plaintiff."

    To the same effect is another judgment of justice venkatasubbarao reported in muthammal v. Gurusami nayakkan wherein it is stated by him :

    " the kind of amendment which the decisions say, ought ordinarily not to be allowed, is that which takes away an existing right from the defendant. That is one thing, but it is a very different thing to say, that no amendment should be allowed, which would deprive the defendant of a bare right to raise a plea of limitation."

    I express my respectful accord with those rulings and state that, though ordinarily an amendment which would take away the right of a party to set up the plea of limitation should not be allowed, it is permissible for a court to allow an amendment if there are special circumstances present in a given case. Further, in this case, that is not a live issue and is only of academic importance for these reasons. The date of the original borrowing and of the document relied on in the plaint as originally filed was the same, namely 21 - 1 - 1950 ant? the suit was filed on 27 - 9 - 1953. To save the suit as originally filed from the bar of limitation the plaintiff relied on an endorsement of payment on 23 - 2 - 1952. But for this endorsement, the suit would be clearly out of time either on the basis of the original borrowing or the document of the same date even at the inception of the suit. If that is admissible and otherwise sustainable, the suit would be in time both on the date of its institution and on the date on which the amendment was sought. The question of admissibility of this endorsement will be gone into at the time of the trial. In these circumstances, the defendants will not be really deprived of any right to raise the defence that is open to them by allowing this amendment and are therefore not in any way prejudiced. In these circumstances, the trial court ought to have allowed the amendment on terms instead of dismissing it. The plaintiff (petitioner) will pay a sum of rs. 25/ - by way of costs of the defendant in the lower court within one month from the date of receipt of records in the lower court. Here, the parties will bear their own costs. T. A. B. Petition allowed.

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    Sheik Murugula Ramtumia Alias Rahamtula v. Yadala Peda Mastan Seth And Others
    (Mar 9, 1956)