P RAMANNA Vs. GRAM PANCHAYAT OF CHINNATHIPPASAMUDRAM

JUDGEMENT

(1.) 1. This petition is to revise an order of the District Munsif, Madanapalle allowing I.A.No. 476/69 in O. S. 36/68 to amend the plaint.

(2.) The suit was by the Gram Panchayat of Chinna Thippasamudram against the defendant who was an Ex-President of the Panchayat for recovery of a sum of Rs.2200/- said to be loss occasioned to the plaintiff by the mis-application of the panchayat funds in carrying out certain constructions for the panchayat. It is contended in the plaint that the defendant had taken up the execution of sinking certain draw-wells in the villages and had spent a sum of Rs.3430/- without necessary sanction and proper estimates and when later the works done were evaluated by the Overseer of Madanapalle Panchayat Samitbi, it came to Rs.1230/- that therefore the balance of Rs.2200/- has to be accounted for by the defendant and this sum is recoverable, The defendant in his written statement contended that certain villages had no provision for drinking water and the sinking of the wells WAS absolutely necessary, that after a resolution of the Panchayat, the works were undertaken as they were urgent, in anticipation of the estimates and the monies were properly spent, that he was not aware of the evaluation made later and there was no misapplication of the funds of the panchayat and he is not liable. He bad also pleaded that the suit is out of time. After both the parties had let in evidence and at the stage of arguments, the plaintiff came forward with a petition under Order 6 Rule 17 CPC for the amendment of the plaint to include certain averments attributing fraud to the petitioner by the preparation of vouchers to cover up the amount said to have been misappropriated. This petition was resisted by the defendant, but the District Munsif passed a short order allowing the petition, saying that as it was already stated in the plaint that the defendant has misappropriated the amount, it will not change the character of the suit. Hence this petition to revise that order.

(3.) In Govindaswami Naidu V. Ethirajamma(1) Coutts Trotter and Seshagiri Ayyar JJ. pointed out that it is a settled practice of every court that the allegation of fraud must be made definitely and categorically in the plaint and must in no circumstances be allowed to be made at a subsequent stage of the suit. In Krishna Aiyar Vs. Pachiappa Chetty & others VenkataSubba Rao, J pointed out that if a party seeks to amend his pleadings by introducing for the first time, allegations of fraud, the court will ask why this new case was not presented originally and may require to be satisfied as to the truth and substantiality of the proposed amendment. This later decision however shows that there is no absolute embargo on the amendment of the pleadings even making an allegation of fraud and that it could be relaxed in exceptional circumstances. It has been pointed out in P.H.Patil Vs. K.S.Patil that an amendment taking away the right of a party arising out of lapse of time should not be allowed. In the present case, for the plea of mis-appropriation of funds, for which the period of limitation prescribed is governed by Article 113 of the Limitation Act the defendant had taken the plea that the suit was out of time. If the amendment making the allegations of fraud is allowed, the plea of limitation would be governed by Section 17 of the Limitation Act. This will be to the prejudice of the defendant. An amendment of this type which comes after the evidence has been recorded and arguments have been heard, obviously urging the question of limitation also, cannot be permitted at this stage.