DALIP Vs. DARIA

JUDGEMENT

(1.) THIS petition is directed against the order of the trial court dated 12th February, 1985 whereby the application for amendment of the plaint was dismissed.

(2.) THE Plaintiff Petitioner filed a suit for recovery of Rs. 4,488/, i, e Rs. 3,300/ - as principal amount and Rs. 1,188/ - as interest, alleging that the Defendant borrowed in cash a sum of Rs. 3,300/ - on 15th January, 1981 and executed an entry to this effect and subsequently affixed his thumb -impression under it. A copy of the entry vat also filed along with the plaint. According to the entry in the bahi, the said amount was paid in cash. The Plaintiff wanted to amend his plaint and plead that instead of making payment in cash on 15th January, 1981, the Defendant thumb -marked the entry as a balance of Rs. 3,300/ - was struck on that day, No amount of cash as such was paid to the Defendant as alleged earlier. According to the Plaintiff, this mistake was committed inadvertently as he was an illiterate man and could not read the writing in bahi. This application was contested an behalf of the Defendant The learned trial court dismissed the application on the ground that the Plaintiff cannot be allowed to shift his stand from the cash payment to the balance entry. It was further found that the Defendant will be prejudiced as a valuable right had accrued to him because the original suit, thus, becomes time barred. Dissatisfied with the same, the Plaintiff has filed this petition in this Court.

(3.) AFTER hearing the learned Counsel for the parties and going through the case law cited at the Bar, I do not find any illegality or impropriety in the impugned order as to be interfered with in revisional jurisdiction I do not find that the discretion exercised by the trial court in disallowing the amendment was wrong in any manner Admittedly, the Plaintiff filed the suit on 12th January, 1984 on the basis of the entry alleged to be that of cash payment. The application for amendment was filed after about one year, i. e , on 7th January, 1985, whereby be wanted to plead that the entry was of the balance struck and not of any cash payment, No cogent explanation has been given by the Plaintiff for withdrawing the said admission. The judgment relied upon is clearly distinguishable en facts. In the Supreme Court, the Plaintiff described him self in the plaint as a son of the uterine brother of one person Subsequently, by way of amendment he wanted to seek deletion of the word 'uterine' from the plaint. The trial Court granted the application for amendment but the High Court, in revision, set aside that order In these circumstances, it was held by the Supreme Court that the trial judge granting the application for amendment was satisfied that in order to effectually adjudicate upon the dispute between the parties, the amendment of the pleadings was necessary and, therefore, the High Court ought not have interfered in its revisional jurisdiction In the present case, the finding is otherwise by the trial court. Consequently, the petition fails and is dismissed with costs. The parties have been directed to appear in the trial Court on 19.10.1985..