Andhra Pradesh High Court - Amravati
R Sankara Rao vs G Baburao on 7 November, 2019
Author: M. Ganga Rao
Bench: M. Ganga Rao
HONOURABLE SRI JUSTICE M. GANGA RAO
Civil Revision Petition No.95 of 2019
ORDER:
This Civil Revision Petition is filed against the order dated 14- 11-2018 passed in I.A.No.1 of 2018 in O.S.No.25 of 2015 by the Senior Civil Judge, Sompeta, whereby dismissed the petition filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 by the petitioner for amendment of the written statement.
The petitioner is the defendant in the suit O.S.No.25 of 2015. The respondent-plaintiff filed suit for recovery of money based on a promissory note. The petitioner filed I.A.No.1 of 2018 under Order VI Rule 17 CPC seeking amendment of the written statement stating that in the written statement Para (5) line 6, to delete the words "the defendant borrowed the amount from the plaintiff and executed the suit promissory note" and in its place add "the defendant never borrowed any amount from the plaintiff and never executed any promissory note in favour of the plaintiff". The petitioner filed amendment petition at the stage of trial, when PW.1 was already examined and it is coming for marking of documents and for cross- examination. The trial Court, after hearing both parties, dismissed the petition holding that the petitioner did not explain any reason for not correcting the same prior to filing of the chief evidence of PW.1 and that if it was a typographical mistake, it could be explained and it need not be corrected by way of amendment after commencement of trial, which amounts to withdrawing an admission in respect of execution of document. Aggrieved by the said order, the present Civil Revision Petition came to be filed.
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MGR,J C.R.P.No.95 of 2019 Now the point that arises for consideration before this Court is whether the revision petitioner-defendant can be permitted to withdraw an admission made in a written statement at the stage of trial, after long lapse of period?
Sri T. Tejeswara Rao, learned counsel appearing for the revision petitioner would content that if the amendment application is allowed, no prejudice could be caused to the respondent. The respondent pressed for dismissal of the petition with an intention to avoid suit claim in another O.S.No.155 of 2014 filed by the petitioner. He further contends that there are no delay on the part of the petitioner in filing the petition for amendment and the same could be filed at any stage of the suit proceedings. The respondent filed the suit for recovery of amount based on the promissory note, which is a rank forgery, created and fabricated by the respondent for filing this suit. The rejection of the application for amendment would result in failure of justice and would cause irreparable injury to the petitioner. He argued for allowing the petition by setting aside the order of the trial Court. The counsel for the petitioner stated that he came to know if the amend of written statement is not permitted it could cause irretrievable loss to the petitioner and obstruct the due course of substantive justice.
Sri M.V. Suresh, learned counsel appearing for the respondent would contend that the suit was filed in the year 2015 and the written statement was filed on 07-07-2015 and the petitioner seeks amendment at the written statement belatedly. He contends that at this stage of trial the question of amendment of written 3 MGR,J C.R.P.No.95 of 2019 statement could not be permitted. The petition is not maintainable and it causes more prejudice to the case of the respondent. The revision petitioner has not assigned any valid cause for the delay and the plea of the petitioner is vague and untenable. He further contends that the chief-affidavit of PW.1 was filed and coming for cross-examination. If the petitioner is allowed for amendment of the written statement, it will cause prejudice to the respondent, which amounts to withdrawal of admission. Allowing of the petition seeking to resile from the admission that the defendant borrowed amount from the respondent and executed the suit promissory note is nothing but withdrawal of admission by way of amendment to the extent that the defendant never borrowed any amount from the respondent and never executed any promissory note in favour of the respondent. It will certainly cause prejudice to the interests of the respondent after filing the chief affidavit and marking document and coming for cross-examination of PW.1.
Learned counsel for the respondent in support of his contentions placed reliance on the Judgment in the case of Ram BNiranjan Kajaria v. Sheo Prakash Kajaria and others1, wherein it is held that admission made in written statement cannot be permitted to be withdrawn by way of amendment, but can be clarified or explained by way of amendment. In the present case, there is a categorical admission in the written statement that the defendant borrowed the amount from the respondent and executed the suit promissory note and now he wants to withdraw such admission in 1 2016 (1) ALT 1 (SC) 4 MGR,J C.R.P.No.95 of 2019 the written statement by way of amendment, which cannot be permitted at this stage.
It appropriate to refer the provisions of Order VI Rule 17 of CPC:
Amendment of pleadings - 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. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." A careful reading of the said provision makes it clear 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. However, the proviso to the said provision also makes it clear that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. But, in the instant case, the revision petitioner failed to show that in spite of his due diligence, he could not file the petition for amendment before commencement of trial. Accordingly, the point is answered against the petitioner.
In view of the above discussion, this court find the petition is not maintainable under Order VI Rule 17 of C.P.C., that there is no illegality or irregularity warranting interference of this court in 5 MGR,J C.R.P.No.95 of 2019 exercise of restricted revisional jurisdiction under Article 227 of the Constitution of India, and hence, the Civil Revision Petition is liable to be dismissed.
Accordingly, the Civil Revision Petition is dismissed. No costs. As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
________________ M. GANGA RAO, J Date: 07-11-2019 Ksn 6 MGR,J C.R.P.No.95 of 2019 THE HON'BLE SRI JUSTICE M.GANGA RAO CIVIL REVISION PETITION No.95 of 2019 07.11.2019 ksn