AINTHA SWAIN Vs. NILAKANTHA BISWAL

JUDGEMENT

(1.) THE plaintiff's suit was for recovery of money on the strength of a promissory note Ext. 1 executed by the defendant on 28-1-62. The defendant admitted the execution of the promissory note. He however contended that no consideration passed thereunder and that it was given by way of a security on behalf of his brother-in-law who was alleged to have committed theft and was called upon to execute a promissory note. The case underwent trial. The plaintiff's suit was dismissed by the trial court. The plaintiff accordingly filed an appeal. Arguments in the appeal were heard by the learned Subordinate Judge, Bhubaneswar and he reserved the judgment to 25-9-67. On that day the defendant filed an application for amendment of the written statement alleging that in paragraph 11 of the written statement the year "1963" was a mistake for "1962" and that as it escaped the notice of the defendant by inadvertence, it should be allowed to be corrected. The learned Subordinate Judge accepted the defendant's contention that the mistake was a bona fide one and escaped the notice of the defendant. He however held that the amendment should not be allowed as it might affect the plaintiff's argument in appeal. Against the order of the learned Subordinate Judge refusing amendment this Civil Revision has been filed.

(2.) THE learned Subordinate Judge reached the correct conclusion in saving that the year 1963 in paragraph 11 of the written statement was given by mistake for the year 1962. This conclusion is based on the patent fact that the defendant admits the execution of the promissory note which is dated 28-1-62. Obviously therefore the amendment should have been allowed, the mistake being inadvertent. Mr. Mohanty does nut seriously dispute the aforesaid finding, of the learned subordinate Judge. He however contends that the defendant should have been more vigilant and diligent, and should have applied for amendment before the trial court. It jean hardly be denied that the defendant was not vigilant nor diligent But the amendment cannot be rejected in all cases where there is a lack of vigilance or diligence on the part of the defendant. The crucial test is whether what the defendant avers now is true or not. It seems reasonably clear that when the plaintiff's advocate presented an argument in appeal that the defence case of theft in 1962 runs counter to his averment in paragraph 11 of the written statement that the theft was in 1963, the defendant was aroused to his senses. It is practically from the plaintiff's argument in appeal that the defendant's advocate got the clue and wanted amendment of the written statement. The learned Subordinate Judge fell into an error in the exercise of his jurisdiction in refusing amendment merely on the ground of delay and lack of vigilance. The learned Subordinate Judge's view that if the amendment is allowed at a late stage it would certainly be dangerous to the plaintiff's contention in appeal, is wholly untenable. If a mistake was committed by inadvertence and the court is of opinion that the amendment should be allowed, inadvertent mistake cannot be permitted to continue, merely because on its basis a contradiction had been shown and the argument already advanced in appeal was to fail. He should have allowed the amendment by compensating the plaintiff with costs. It is well settled by a series of Supreme Court decisions that mere delay by itself is not a ground for refusing amendment.

(3.) THE next question for consideration is whether the plaintiff would be given any costs on account of the delay caused by the defendant's lack of vigilance, or that the plaintiff would be saddled with costs for raising frivolous objections before the learned Subordinate Judge and allowing the litigation to be protracted for about 2, 1/2 years. In my view, the plaintiff would have got costs if he would have fairly conceded before the learned Subordinate Judge that the amendment should be allowed, and he should be compensated with costs. But where the plaintiff takes a recalcitrant attitude and allows the litigation to be protracted, it would be in the fitness of things that the amendment should be allowed and the plaintiff would be saddled with costs. I however do not want to saddle the plaintiff with any costs in this particular case, as Mr. Mohanty fairly conceded here that the amendment should have been allowed.