KOTTA PENTAIAH Vs. PUWAR LAXMANSA

JUDGEMENT

(1.) This revision is directed against an order refusing permisson to amend the plaint. The petitioner is the plaintiff, who instituted O.S. No. 2405 of 1975 in the Court of the First Assistant Judge City Civil Court, Hyderabad, against the respondent for recovering a sum of Rs. 1,82506 towards principal and interest due on khata. In the plaint, it was alleged that the defendent used to purchase cloth on credit from the plaintiff from time to time, that the defendant made some payments on some occasions and that, on 26-10-1973, when the balance was struck, it was found that the defendant had to pay the plaintiff a sum of Rs. 1,422-56 P. The defendant filed a written statement contending that the plaintiff is not a cloth merchant, that he never supplied any cloth to him and that he (defendant) did not take any cloth from the plaintiff at any time on credit. He has also taken up several other pleas.

(2.) In the light of the pleadings, seven issues were framed including an issue as to whether the plaintiff is a cloth merchant and another issue as to whether the defendant purchased from the plaintiff cloth on credit and made any payments on that account. The suit was filed in December, 1975. Written statement was filed on 6-7-1976. Issues were framed on 28-7-1976. The trial of the suit commenced on 7-3-1977 with the examination of the plaintiff's Muneem as P W. 1. Through P.W. 1 the plaintiff filed Exs. A-l to A-9. Exs A-l, A-3 A-5 and A-7 are the entries in the ledger account in the name of the defendant, while Exs. A-2, A-4 A-6 and A 8 are the respective English translations. Ex, A-9 is an office copv of the registered notice issued bv the plaintiff to the defendant prior to the suit. Ex A 10 is the returned envelope containing the original of Ex. A-9. After the examination of P.W. 1, P.W. 2 was examined in Chief and the case was posted for cross-examination to the 18th of March, 1977. On this day, the plaintiff filed I.A. No. 314 of 1977 praying the Court for permission to amend the plaint by adding the word 'yarn' after the word 'cloth' in the second line of para 3 of the plaint and substituting the word 'yarn' for the word 'cloth' in the third line of para 3 of the plaint. With the application, the plaintiff filed an affidavit affirming that the suit was filed only to recover the money due and payable by the defendant towards purchases of yarn on credit from time to time, that the plain tiff has two firms, one at Pan Bazar and the other at General Bazar and that, while yarn business is carriedon in the Pan Bazar shop, cloth business is carried in the General Bazar shop and further that by accidental slip, instead of typing the word YARN, CLOTH has been typed in the notice issued to the defendant prior to the filing of the suit and that the plaint was prepared only in accordance with the suit notice and that the mistake was not discovered until when P.W. 1 was examined in the Court. The plaintiff has further stated that the error was neither wilful nor deliberate and that it is the result of an accidental mistake.

(3.) The defendant opposed the application for amendment contending that, by the amendment, the plaintiff was introducing a new case and that, if the suit is for recovering the amount doe on yarn, it is barred by limitation by the date of the amendment application. The learned District Munsif dismissed the plaintiff's application holding that Ihe omission to mention about 'yarn' in the original plaint is not the result of any accidental slip and that, by allowing the amendment, the plaintiff would be permitted to change the entire basis of the claim. Stress was laid by the learned District Munsif on the fact that the plaintiff mentioned 'cloth' only in the registered notice and did not make any attempt to amend the plaint soon after the framing of the issues even though 'he first and second issues directly draw the attention of the plaintiff to the kind of goods alleged to have been supplied by him.