A. Janardhan Reddy v. P.L.K.Prasad

HON'BLE Dr. JUSTICE B. SIVA SANKARA RAO CIVIL REVISION PETITION No.405 of 2016 ORDER :

The plaintiff-petitioner in O.S. No.40 of 2008, which is a suit for recovery of money based on three pronotes said to have been executed by the defendants 1 to 3, sought for amendment of the plaint during progress of trial, even the suit is subsequent to the C.P.C amendment in 2002, by not exhibiting the due diligence contemplated by the proviso to Rule 17 of Order VI C.P.C and having been went unsuccessful therefrom in getting the order for amendment in I.A. No.1163 of 2015 vide order dated 16.12.2015 maintained the present revision.

2) The amendment sought for is to incorporate in the plaint about the factum of the defendants for recovery of three pronotes debt covered by the suit claim created equitable mortgage through the wife of the 3rd defendant who with intention to create mortgage deposited her title deeds as security for recovery and inadvertently she was not impleaded and the factum of the equitable mortgage not pleaded and it thereby requires amendment of plaint so to incorporate and implead.

3) In the revision, 1st respondent is not served as no such addressee, so also the 2nd respondent, however Sri M.S.R.Subrahmanyam, learned advocate is on record

appearing for the 2nd respondent and notice to the 3rd respondent is deemed served as he refused to receive it. Though the 1st respondent is not served, this Court taken up the revision for final hearing at the request of the learned counsel for the 2nd respondent and the learned counsel for the revision petitioner saying the question involved no way results any prejudice to the 1st respondent to pass any order in the revision by final disposal, instead of giving life to the litigation from the non-service of notice many a time.

4) Heard and perused the material on record.

5) When the plaintiff did not plead in the plaint and even wife of the 3rd defendant who said to have been created equitable mortgage was not impleaded and the trial is undisputedly commenced and the amendment not sought before commencement of trial, there is nothing to interfere with the impugned order dismissing the amendment application by the trial Court, for this Court while sitting in revision.

6) Having regard to the above, the revision petition is dismissed without prejudice to any other rights of the plaintiff to work out. No order as to costs. Pending miscellaneous petitions, if any, shall stand closed. __________________________ Dr. B. SIVA SANKARA RAO, J

28.07.2016 ksh