VAKKALANKA KONDAMMA Vs. KASANEEDI VENKATARAYADU

JUDGEMENT

(1.) The plaintiff is the petitioner. Her suit was for the enforcement of a promissory note dated 9 August, 1929, executed by the first defendant, the undivided father of defendants 2 to 5. The promissory note bears an endorsement on the back of part payment, dated 6 July, 1932. The plaint was filed on 28 June, 1935. The suit note was insufficiently stamped and was inadmissible in evidence under Section 35 of the Indian Stamp Act. The plaintiff therefore on 30 July, 1935, applied for an amendment of the plaint seeking permission to take his cause of action on the promissory note dated 11 August, 1926, which had been cancelled and superseded by the execution of the suit note which was renewal of this note. This note also had been filed along with the suit note. The application for amendment was refused by the learned Judge on the ground that the endorsement dated 6 July, 1932 can only refer to the suit note and cannot be taken as an acknowledgment of the prior promissory note debt. The order further stated: Even assuming that the endorsement has such an effect, the claim on the prior pronote became barred after the expiry of three years from the date of endorsement, that is, 6 July, 1932. The plaintiff cannot be allowed to get over the difficulty of limitation by obtaining the amendment.

(2.) The amendment having been refused the suit was dismissed. In the Civil Revision Petition the main argument has been that in the circumstances of the case, the amendment should have been allowed.

(3.) The granting of an amendment is left to the discretion of the Court under Order 6, Rule 17, Civil Procedure Code. As a general rule leave to amend will be granted to enable the Court to determine the real question in issue between the parties provided that the amendment will occasion no injury to the opposite party except such as can be compensated for by costs or other terms to be imposed by the Court. Consideration of the question whether any injury will be caused to the defendant in the present case will entail practically a decision of the plaintiff's case; and if in the course of the discussion it is found that the defendant is not deprived of any legitimate plea that he can raise, including of course the plea of limitation, I think the amendment should be granted. I would therefore proceed to consider the case on its intrinsic merits before deciding whether the amendment should be allowed or not.