Andhra Pradesh High Court - Amravati
Gavini Srinivasa Rao vs Chippalapalli Srinivasa Yadav on 15 November, 2019
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.No.2879 of 2019
ORDER:
Heard Sri Naga Praveen Vankayalapati, learned counsel for the petitioner and Sri M. Chalapathi Rao, learned counsel for the respondent. M. Chalapathi Rao, learned counsel, accepted notice on behalf of the respondent. Both learned counsel submitted their arguments in this matter. Hence this Civil Revision Petition is disposed of, at the admission stage itself.
2. The defendant is the petitioner. He filed a petition under Order VI Rule 17 CPC to amend the written statement, raising a plea to discharge. The proposed amendment as under:
"...The defendant submits that the plaintiff is the close friend of the defendant, out of close friendship, the defendant borrowed amounts referred in the promissory notes. Later, the defendant went to the house of plaintiff on 26.11.2017 and paid a sum of Rs.2,00,000-00 to the plaintiff in the presence of Gavini Sundaraiah. The wife of the plaintiff was also present at that time. The plaintiff promised to make an endorsement on the back of the promissory notes as they are not readily available. The defendant out of close friendship reposed confidence on the plaintiff and kept quite. Sometime later, the plaintiff again requested the defendant to pay interest which came to nearly Rs.1,00,000.00. The defendant paid a sum of Rs.70,000-00 to the plaintiff in his house on 20.01.2018 in the presence of Gavini Sundaraiah. The wife of the plaintiff was also present at that time. The plaintiff promised to return the promotes after payment of the balance interest amount. The defendant informed the plaintiff to discharge the remaining amount soon after harvesting of the crops. The plaintiff's relative Chippalapalli Siva Raju contested for union elections of ILTD Company for the post of president ship. The plaintiff requested the defendant to vote in his favour. The defendant refused to vote for him. The plaintiff, quarreled with the defendant and developed grudge against the defendant and kept quite for some time. Later the plaintiff, taking advantage of the custody of the promissory notes, resorted to this unholy litigation. The said part payments have to be deducted from the suit amount".
MVR,J CRP No.2879 of 2019 2
3. The trial has commenced in this suit and the evidence on behalf of the respondent, who is the plaintiff, has already been completed.
4. The suit is laid by the respondent for recovery of Rs.2,71,734/- basing on two promissory notes alleged to have had been executed by the petitioner in his favour agreeing to repay the same with interest at 24% per annum and to be paid on demand of respondent.
5. The petitioner resisted the claim of the respondent, mainly on the ground that there has been enmity between him and the respondent and the suit promissory notes have been brought out by forgery. He also questioned the capacity of the respondent to lend such amount. This is how the petitioner raised his defence.
6. Thereupon, the learned trial Judge settled issues for trial.
7. When the suit was coming up for evidence on behalf of the petitioner, he came up with the petition for amendment, as stated above. The reason assigned by him is that he was not informed of nature of defence set up in the written statement by the learned counsel who appeared for him in the suit till then and that he was not informed of the dates of hearing when the suit was adjourned. He also claimed that he was not present when PWs.1 to 3, were cross examined on his behalf. He further stated that, in fact, he paid Rs.2,70,000/- to the respondent on two different occasions and that, on account of close friendship between himself and the respondent, no endorsements were made on the suit promissory notes. He also claimed that there is material to prove his part payments and which were not pleaded in his earlier written MVR,J CRP No.2879 of 2019 3 statement. Therefore, according to him, his written statement is required to be amended suitably.
8. The respondent resisted the claim for amendment, mainly on the ground that inconsistent pleas are sought to be raised that are contrary to his version in the written statement with an oblique motive and that the petitioner did not make out the diligence required to be established in a post-trial amendment.
9. Upon considering the material and contentions of the parties, the learned trial Judge, by the impugned order, dismissed the petition, citing reasons.
10. Now, the point for determination is - whether the proposed amendment of the written statement is proper and if the order of the learned trial Judge, is justified?.
11. As seen from the written statement originally filed, the petitioner has raised a very serious plea of enimical background and that the suit promissory notes have been an outcome of political disputes leading to forgery.
12. The proposed amendment is depicting a stand, which the petitioner has chose to shift from the original claim. In the sense, he is admitting the execution of suit promissory notes and has set up a plea of partial discharge upon payment of Rs.2,70,000/- in all, towards these promissory notes. However, as seen from the affidavit filed by him in support of the petition, he did not refer in clear terms that his earlier stand in the written statement is not correct and that he has withdrawing therefrom. He did not also state in clear terms in his affidavit that he is admitting the execution of the suit promissory notes. These factors have to be culled out only from the tenor of the affidavit filed by the petitioner MVR,J CRP No.2879 of 2019 4 and also from the nature of the proposed amendment. Thus, a diametrically opposite stand is taken by the proposed amendment by the petitioner, in his defence.
13. Contention on behalf of the petitioner is that law permits the defendant to raise such pleas which are diametrically opposite to one another and that are contradictory in terms. It is also contended for the petitioner that in case of amendment of written statement at any stage, the Court should be liberal in permitting them.
14. These contentions reflect undoubtedly the settled proposition of law. At the same time, the effect of proviso to Order VI Rule 17 CPC cannot be forgotten. Unless, the facts and circumstances in a case support, question relating to due diligence cannot be relegated to the background, on the plea that liberality in permitting such amendments is an order and refusal is an exception in post-trial amendments. It is bounden duty of the parties to establish that inspite of due diligence, they could not raise the proposed amendment before the commencement of trial.
15. A careful consideration of the affidavit of the petitioner makes out that it did not advert to the factor of due diligence. Blaming earlier advocate cannot be appropriate in this context nor can be a substitute to make out such circumstance explaining the reason for seeking amendment during the course of trial. When it is taken into consideration, in the context of claim of the petitioner, it has to be inferred that he has miserably failed to explain this situation. There is apparent want of diligence on his part in raising the amendment as sought now, amounting to gross negligence.
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16. On behalf of the respondent, referring to the contents of the proposed amendment, it is stated that it is sought to be brought out with an oblique motive to involve his family members and in an attempt to call the wife of the respondent as witness on behalf of the petitioner. The reason stated in this context is that the proposed amendment makes a reference to her presence at the time, when certain amounts were paid in alleged discharge of the sum due, under the promissory notes. However, the reply on behalf of the petitioner is that this question relates to the merits of the amendment and that such questions cannot be taken into consideration in an application filed under Order VI Rule 17 CPC.
17. It is true that the merits of the proposed amendment cannot be gone into, when an application under Order VI Rule 17 CPC is being considered. The effect of the proposed amendment, as such, cannot be completely overlooked. In the sense, to consider the nature of the stand sought to be raised by the proposed amendment vis-à-vis, the earlier version in the written statement, its effect has to be considered by the Court.
18. Nonetheless, finding that the petitioner did not make out nor explain due diligence in coming up with the proposed amendment when the suit is part heard, it could not have been permitted by the learned trial Judge. The matter was addressed in right perspective, particularly as to delay in filing this petition under Order VI Rule 17 CPC and has drawn right conclusions.
19. Therefore, no interference is warranted at this stage, with the order revision.
20. In the result, this Civil Revision Petition is dismissed at the admission stage itself. The learned trial Judge is advised to MVR,J CRP No.2879 of 2019 6 reconsider the issues already settled in the matter, since they appear to not to reflect the claim of the respondent (plaintiff) and that of the petitioner (defendant) in the suit. Both the learned counsel in the trial Court are requested to assist the learned trial Judge in this process. There shall be no order as to costs.
As a sequel miscellaneous petitions pending, if any, shall stand closed.
__________________________ M. VENKATA RAMANA, J Date: 15.11.2019 JKS MVR,J CRP No.2879 of 2019 7 137 THE HON'BLE SRI JUSTICE M. VENKATA RAMANA C.R.P.No.2879 of 2019 DATE:15th day of November 2019.
JKS