HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.3160 OF 2014 Dated 25-11-2014 Between:
M.Rami Reddy.
And:
B.V.S.Kiran Kumar.
..Petitioner.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CIVIL REVISION PETITION No.3160 OF 2014 ORDER:
This revision is against orders of Principal Senior Civil Judge, Kurnool dated 21-7-2014 in I.A.No.557 of 2014 in O.S.No.323 of 2011 whereunder the court below dismissed the application filed by defendant for amendment of written statement.
Brief facts leading to this revision are as follows:
Respondent herein filed O.S.No.323 of 2011 for recovery of money and the petitioner herein filed written statement and contested the suit. After examination of D.W.3’s evidence, petitioner herein who is the defendant filed I.A.No.557 of 2014 contending that only during the evidence of D.W.3, it came to light that Kurnool city was inundated with water on 2-9-2009 and several houses, offices buildings and apartments upto first floor were drowned in flood water and that no persons could go to cinema and ‘Shankam’ film which was screened in Venkatesh theatre, was also inundated in flood water and picture could not be screened by anybody. However, there was collection of Rs.5,40,000/- which went directly into pocket of plaintiff and the loss of Rs.4,60,000/- is an act of god which the deponent do not owe legally to discharge the debt and therefore, he may be permitted to take that plea by way of amendment.
The petition was resisted by plaintiff and on consideration of contentions and rival contents of both parties, trial court dismissed the application on the ground that the petition is filed at belated stage, that too, after commencement of trial and examination of D.W.3. Aggrieved by the same, present revision is preferred.
Heard both sides.
Advocate for revision petitioner submitted that defendant has no knowledge about the fact of floods till examination of D.W.3 and therefore, he could not plead this fact in his written statement at the time of filing and an opportunity may be given to the petitioner and no prejudice would be caused to plaintiff on account of proposed amendment.
On the other hand, learned counsel for respondent submitted that after commencing of trial, pleadings cannot be permitted to be amended and the petitioner has failed to comply the requirement of law and the trial court has not committed any error of dismissing the application.
Now the point that would arise for my consideration in this revision is whether order of Principal Senior Civil Judge, Kurnool dated 21-7-2014 in I.A.No.557 of 2014 in O.S.No.323 of 2011 whereunder the court below dismissed the application filed by defendant for amendment of written statement, is legal, correct and proper?
POINT:
The main contention of the revision petitioner is that till examination of D.W.3, he has no knowledge that Kurnool city was inundated with flood water and that there was loss due to act of God and that has to be pleaded in the written statement.
Order VI Rule 17 C.P.C. deals with amendment of pleadings which reads as follows:
“The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
PROVIDED that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
From a reading of above provision, it is clear that application for amendment shall not be allowed after commencement of trial unless the party who seeks amendment has shown to the court that in spite of due diligence, the party could not have taken that plea before commencement of trial. Except vaguely stating in the affidavit only during the evidence of D.W.3, defendant came to know that Kurnool city was inundated with flood water on 2-9-2009 and therefore, he could not take this plea no material is placed to support the said version. This contention cannot be accepted because flood in Kurnool city was widely published in news papers and telecasted in television and if really defendant wants to take that incident as an act of God, as a defence, he ought to have pleaded it in the original written statement. On a scrutiny of the material, it is held that petitioner failed to show that he could not take this plea in spite of his due diligence in compliance of proviso under Order VI Rule 17 C.P.C.
As rightly pointed out by other side, there is no illegality in the order of the trial court and on the other hand, it is in strict compliance of proviso under Order VI Rule 17 C.P.C. and therefore, there are no merits in the revision and the same is liable to be dismissed.
Accordingly, this Civil Revision Petition is dismissed. As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-11-2014
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR Dvs CIVIL REVISION PETITION No.3160 OF 2014 Dated 25-11-2014