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Judgment
Krishna Saran Shrivastav, J.—The petitioners in this revision are the plan tiffs in O.S.No. 19 of 1985 on the file of the Subordinate Judge, Bapatla.
This revision shall also dispose of the Civil Revision Petitions No. 2164 and 2167 of 1995 because of commonality of question of law and similarity of facts.
The facts giving rise to these revisions, in brief, are that - the deceased 1st plantiff was the husband of the deceased 2nd plantiff. The deceased 1st plaintiff was the owner of the suit properties. He filed O.S.Nos. 18, 19 and 20 of 1985 against separate defendant in these suits for cancellation of the gift deeds in respect of the suit properties alleged to have been executed by him in favour of the defendant on the ground that he suffered a paralysis attack some time in the month of December, 1985 and became physically handicapped and lost his speech. At that time he was staying alone in his house because the 2nd plaintiff since deceased had abandoned him about thirteen years back and had started living with the defendant. The defendant with the help of his brothers, parents and the 2nd plaintiff since deceased admitted him in Sujata Nursing Home at Nidubrolu for treatment where he remained for about two months. But, he could not recover from the illness. He was then removed by them to their village Doppalapudi against his wish and was confined in their house. He was robbed of his cash and belongings. Later he was removed to Chebrolue thrice and every time a document styled as gift deed was got executed by him on 18-2-1984, 2-7-1984 and 27-10-1984 in favour of the defendant of O.S.Nos. 18, 20 and 19 of 1985 respectively. He was made to nod his head before the Sub-Registrar at the relevant time. He was thereafter abandoned by the defendant and his brothers and parents. Later on, he was shifted to his native place Gotlamudipadu and with the help of his brothers obtained the certified copy of the gift deeds alleged to have been executed by him in favour of the defendant of each case. On obtaining the certified copy of the gift deeds, the contents were read over to him, which contents were absolutely false and he had never gifted his property in suits to the defendant. The gift deeds are sham and void having been obtained by exercise of undue influence and coercion. On these allegations, the plaintiffs since deceased sought a decree for declaration that the gift deeds should be cancelled.
The defendant in each case denied the plaint allegations specifically in toto. The par ties went to trial. After recording of part evidence of the defendant, the present petitioners, whose names have been substituted in place of the deceased plaintiffs, on the strength of a will, moved an application in each suit for amendment of the plaint on the ground that during the pendency of the suits ail the original gift deeds had been filed and with the permission of the Court the petitioners have obtained the photographs of the alleged signature of the 1st plaintiff since deceased on the gift deeds and got it compared by the handwriting expert from the admitted signature and came to know that the signatures alleged to have been obtained by the deceased 1st plaintiff at the time of registration of the gift deeds do not belong to him. There are certain alterations in the original gift deeds and, therefore, they sought the following amendment incorporated in each plaint.
"There are material alterations in the original gift deeds alleged to have been executed by the 1st plaintiff The signatures alleged to have been signed by the 1st plaintiff before the Sub-Registrar at the time of registration on the back of the document do tally with the admitted signature of the 1st plaintiff. This clearly shows the 1st plaintiff has not signed the said gift deeds before the Sub-Registrar at the time of registration and on some other sheets of the said gift deeds. As such the above said gift deeds are not valid one and was not properly registered and executed and as such there is no valid conveyance under the said gift deeds".
The proposed amendment was opposed by the respondent-defendant in each case on the ground that it is highly belated and through the proposed amendment the petitioners want to introduce, a new case, which cannot be permitted and the proposed amendment shall also change the nature of the case.
The trial Judge held that the 1st plaintiff since deceased had sought the cancellation of the gift deeds on the ground of undue influence and coercion, inter alla, alleging that without telling him anything he was asked to nod his head before the Sub-Registrar and, therefore it cannot be said that he totally denied the execution of the gift deeds. But, the petitioner? who are the legal representatives of the deceased 1st plaintiff want to amend the plaint alleging that he did not sign on the gift deeds before the Sub-Registrar and that there are certain material alterations in the gift deeds. Thus they cannot allege anything beyond the pleadings of the original plaintiff. It has not been alleged In the plaint by the deceased 1st plaintiff that there were alterations in the gift deed or he did not sign on some sheets of the gift deed. The original plaintiffs as also the petitioners kept quiet for a considerable long time. The proposed amendment would change the nature of the case. Holding so, the learned trial Judge rejected the application for amendment.
Feeling aggrieved by the impugned orders, the petitioners filed three separate revisions in respect of aforementioned three suits and these revision petitions, as stated above, are being disposed of by a common order.
Relying on Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , it has been held in the case of A.K. Gupta and Sons Vs. Damodar Valley Corporation, as follows:
"..The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neale (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the add ition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statuery period of limitation.
The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith (1884) 26 Ch. D. 700 and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended.
The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitled the plaintiff to succeed" as was said in Cooke v. Gill: (1873) 8 CP 107, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. (1962 2 All.E.R. 24), and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas": Dornan v. J. W. Ellis and Co., Ltd. (1962 1 All.E.R. 303). This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of Ideas to the prejudice of any right acquired by any party by lapse of time".
The case of A.K. Gupta & Sons v. Damodar Valley Corpn. (3 supra) has been quoted with approval in the case of Vineet Kumar Vs. Mangal Sain Wadhera, .
Again in the case of Haridas Aildas Thadani and Others Vs. Godrej Rustom Kermani, it is held that "the Court should be extremely liberal in granting prayer amendment of pleading unless serious injustice or irreparable loss is caused to the other side". In this case also the case of Pirogonda Hongonda Patil v. Kalgonda Shidgonda (1 supra) has been quoted with approval.
In the case of Ganesh Trading Co. Vs. Moji Ram, , it has been held that:
"It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accured in its favour due to lapse of time. But, mere failure to set out even an essential fact does not by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could some time be viewed as equivalent to an introduction of a new cause of action which cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent Even every defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional Court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on newly constituted cause of action that the Courts should ordinarily, refuse prayers for amendment of pleadings".
The question that falls for determination is how best the present case stands on the aforementioned principles? Does the amendment introduce a new cause of action or a new case?
It is the duty of the Court to consider the prayer for amendment of pleadings to weigh all pros and cons of the case to ensure injustice and prejudice by irremedial character are not inflicted on the opposite party under the pretext of amending the pleadings. The revisionist Court must correct jurisdictional error to prevent gross mis-carriage of justice and material irregularity in exercise of its revisional jurisdiction. The ultimate test in the matter of allowing amendment of pleadings was stated in terms of "test of injustice". Present Courts duty is to prevent injustice occurring with any party, (vide Pirogonda Hongonda Patil v. Kalgpnda Shidgonda) (1 supra).
From the pleadings of the 1st plaintiff in the each plaint, as noted above, it appears that he had sought the cancellation of the gift deeds on the ground that he had not executed any gift deed in favour of the defendant. But he was made to nod his head before the Sub-Registrar at the relevant time and when the contents of the certified copy of the gift deeds were read over to him, he came to know about the execution of the gift deeds by him. He has also alleged that the contents of the gift deeds are false. Thus, prima facie, it appears that he did not know about the nature of the document that was got executed by him at the relevant times. He wanted to get the gift deeds cancelled because they have been obtained by exercising undue influence and coercion during his physical disability. It is not disputed before me that the original gift deeds were throughout in possession of the respondent-defendant till they were filed in the Court Therefore, at the time of preparation of the plaint, it cannot be said that the 1st plaintiff since deceased had an occasion to see the alleged alterations or his signature on the gift deeds. True, that in spite of the fact that the gift deeds were filed before the examination of the respondent-defendant had started and the present plaintiff had occasion to examine those gift deeds long before the filing of the application for amendment but this by itself is not aground to reject the application for amendment, It has been urged on behalf of the petitioners that only after obtaining the permission of the Court to get the photographs of the signature of the 1st plaintiff and getting it examined by the handwriting expert they could come to know about the dissimilarity between the admitted signature on the one hand and disputed signature on the gift deeds. There is no allegation in the plaint that the 1st plaintiff had put his signatures before the Sub-Registrar at the relevant times. But, there is a definite allegation that he was made to nod his head before the Sub-Registrar and, therefore, it cannot be said that by implication it should be concluded that the 1st plaintiff has admitted to have signed before the Sub-Registrar.
The original plaintiff wanted to get the gift deeds cancelled on the ground that they were obtained by practising undue influence and coercion. The same relief is sought by the present plaintiffs with a request to amend the plaint so as to include an additional plea which was available to the 1st plaintiff at the time of institution of the suits. Therefore, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit.
Relying on Radhika Devi v. Bajrangi Singh and Ors. 1996 (2) SC 321, it has been urged on behalf of the respondent-defendant that the registration of the document is a notice to everyone claiming any right, title and interest therein. The petitioners had knowledge about the contents of the gift deeds in question immediately after they were filed in the Court, But, despite that they did not take any step to move an application for amendment of the plaint till part of the evidence of the respondent-defendant was recorded by the trial Court. The deceased 1st plaintiff had lost the right to get the gift deeds cancelled on the ground that they do not contain his signature at the time of registration of the gift deeds and, therefore, the present petitioners cannot now take that defence because the suit for cancellation of the gift deeds on that ground had become barred by limitation during the life time of the 1st plaintiff only.
True, that the registration of a document is a notice to everyone claiming any right, title and interest therein and actually the 1st plaintiff since deceased, as alleged so in the plaint, had sought the cancellation of the registered gift deeds on the ground of coercion and fraud, but this fact cannot be lost sight of that the original gift deeds were in possession of the respondent-defendant and they were filed after the closure of the evidence of the original plaintiffs. The facts on which the gift deeds are sought to be cancelled are already in the pleadings of the plaintiffs, the respondent-defendant has denied the allegation of practising undue influence or coercion on the deceased 1st plaintiff. The gift deeds have been produced from their custody. The relief clause is not sought to be amended. Taking the ground that there is no signature of the 1st plaintiff on the gift deeds cannot be said to be a ground giving rise to a new cause of action because it was antecedent to the institution of the suit. The ground was available at the time of institution of the suit because it can be presumed that the signatures were already on the gift deeds, right from the very beginning. The only question is whether the signature belongs to the deceased 1st plaintiff or not?
For the foregoing reasons, it cannot be said that in the absence of details of practising undue influence and coercion and the effect of compelling the deceased 1st plaintiff to nod his head before the Sub-Registrar does not furnish a legitimate ground for refusing the amendment, particularly, when it does not appear that the respondent-defendant can legitimately claim that the proposed amendment will prejudicially affect his right under the law of limitation and, therefore, the case of Radhika Devi v. Bajrangi Singh and Ors. (7 supra) is distinguishable on facts.
The legal representative of a deceased party is entitled to raise all pleas which the deceased party had or could have raised except those which were personal to him. (vide Bal Kishan Vs. Om Parkash and Another, . Therefore, there appears to be no force in the contention of the learned Counsel of the respondent-defendant that the present plaintiffs cannot take a plea which the deceased 1st plaintiff had not taken in the original plaint.
The proposed amendment appears to be necessary for deciding the real controversy between the parties to tine suit, but the respondent-defendant in each suit is entitled for costs for inconvenience or expense caused to him from the omission and delayed act of the petitioners.
The learned lower Court, on oversight of the position of law relating to amendment of pleadings, has fallen in error in concluding that the proposed amendment, if allowed, would change the nature of the suit.
In result, the impugned orders passed in all the three suits are set aside and the applications for amendment in question filed in the suits are allowed subject to payment of costs of Rs. 500/- in each case to the respondent defendant. The proposed amendment should be incorporated in the plaint within twenty one days from today. The respondent-defendant shall be entitled to effect consequential amendments in his written statement in the concerned suit. The trial Court is directed to dispose of the suits at an earliest convenience after giving proper and reasonable time to both the parties to the suit to lead evidence in view of the amendment of the pleadings. The Civil revision petitions are accordingly allowed. In the circumstances of the case, the parties are directed to bear their own costs of the revision.