NSHIVANNA Vs. J BTHIMMLAH

JUDGEMENT

(1.) This revision petition arises out of an application for amendment made by the plaintiff and which has been allowed by the Civil Judge of Tumkur, in a suit on a pronote. The suit pronote which was dated 26-10-1957, was for a sum of Rs. 5000/- and was alleged to nave been executed by the defendant. While resisting the claim of the plaintiff, the defendant also pleaded that the suit pronote, having been insufficiently stamped, was inadmissible in evidence. Thereafter the plaintiff filed an application seeking for permission to so amend the plaint as to base his suit on what was called the original cause of action. The plaintiff sought to plead that the sum of Rs. 5000/- had been actually borrowed by the defendant on 19-10-57 and that as the stamp was not available at that time the defendant agreed to execute the pronote and that he subsequently did so on 26-10-57. This application for the amendment of the plaint, was strenuously resisted by the defendant. The learned Civil Judge having permitted the amendment sought for by the plaintiff, the defendant has now come up in revision.

(2.) Sri E. Kanakasabhapathi for the petitioner has contended that the allegations made by the plaintiff in his application for amendment of the plaint were wholly, inconsistent with the plaint allegation that it was on 26-10-1957 that tie consideration was paid and the pronote was executed. The petitioner's learned Advocate also points out that in the cause of action para in the plaint, it is stated that the cause or action arose on 26-10-1957. It is contended by him that no good grounds had been made out by the plaintiff for his being permitted to amend the plaint in the manner sought for by him. One other ground urged by Sri Kanakasabhapathi is that this application for amendment having been made on 26-2-1961, a suit based on the so-called original cause of action if it had been filed on that date, would have been tarred by limitation. It is also contended that the effect of allowing an amendment of that nature would be, to take away the very basis of the defendant's contention that the suit should fail on the ground of inadmissibility of the suit pronote and to put him into a position of disadvantage which cannot be compensated by costs. Sri C. Siddiah, the learned Advocate for the respondent has argued that the power to allow amendment under Order 6 Rule 17 of the C.P.C. should be liberally exercised and that instances are not lacking in which even though the Court found that the suit pronote was inadmissible in evidence, yet, the plaintiff has been permitted to fall back on the original cause of action and to amend the plaint for basing his suit on the original cause of action. After hearing both the learned Advocates, I am satisfied that in the circumstances of the present case, the lower Court has committed a grave error in having permitted the plaintiff to amend the plaint.

(3.) From a perusal of the order made by the learned Civil Judge, the impression that is created on one's mind is that the learned civil Judge was considerably influenced by the fact that the plaintiff would stand to lose such a large sum of Rs. 5000/- if he was not permitted to amend the plaint. The fact that the plaintiff ran the risk of losing a considerable sum of money ought not to have influenced the lower Court, if the other relevant circumstances in the case did not justify permission being granted to the plaintiff for the amendment of the plaint. In the case of Sabjan Saheb v. Abdul Shukoor Saheb, reported in 36 Mys LJ 812, this Court while dealing with a case in which the question of allowing an amendment or the plaint in a suit based on an inadmissible pronote arose for consideration, has observed as follows: