IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIRST DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY Civil Revision Petition No.4489 of 2010 Between: Challa Anjaneyulu, S/o.Seshaiah, Hindu, aged about 48 years, Working in D.R.Uttam Hotel, Nellore ... Petitioner And Angileeka Subrahmanyam, S/o. of Lingaiah, Hindu, aged about 43 years, Residing at Aravinda Nagar, Nellore-4 Order: This civil revision petition, under Article 227 of the Constitution of India, is filed by the defendant in the suit in O.S.No.793 of 2008 on the file of the learned Principal Junior Civil Judge, Nellore aggrieved of the order dated 19-07-2010 passed in I.A.No.984 of 2009, by which his application seeking amendment of the written statement is dismissed. The suit in O.S.No.793 of 2008 is filed by the respondent/plaintiff against the petitioner/defendant for recovery of an amount of Rs.92,990/- with interest till the date of realization of the said amount. The said recovery is based on the plea of the respondent that the petitioner has borrowed a sum of Rs.85,000/- from him on 29-03- 2008 for his necessities and he executed a demand promissory note dated 29-03-2008 agreeing to repay the said amount with interest at 24 % p.a. In the said suit, the petitioner filed written statement. In the written statement, it is mainly the case of the petitioner that the respondent has no capacity to loan the amount mentioned in the plaint and the promissory note relied on is prepared and fabricated one. Further, it is the case of the petitioner that earlier he borrowed the amount from the respondent and discharged the said amount and he has to pay only interest on the prior promissory note only to the tune of Rs.15,300/-. In the suit, issues were framed on behalf of the respondent/plaintiff. Evidence was let in by filing an affidavit in lieu of chief examination of P.W.1 on 26-06- 2009. When the suit had come up for cross-examination, the petitioner filed I.A.No.984 of 2009 for amendment of written statement to add paras “8(a) and 8(b)” in the written statement. The proposed paragraphs which he wanted to add by amendment read as under: “8(a) The defendant has got an occasion to meet Chevuru Nageswara Rao, S/o.Rangaiah, who is known to both plaintiff and defendant, on 15/8/2009. In their conversation about the family affairs the unjust suit filed by the plaintiff was came to light. In their conversation Chevuru Nageswara Rao told to the defendant that the defendant executed the prior promissory note in April, 2005 for Rs.85,000/-. Further, it is known that the plaintiff gave the amount in 4 installments i.e. Rs.25,000/-, Rs.25,000/-, Rs.25,000/- and Rs.10,000/- prior to 2005. The prior promissory note was barred by limitation. The defendant observed the general formalities i.e. asking the plaintiff directly and through the friends about old promissory note. The plaintiff suppressed the fact of prior promissory note April, 2005. The defendant was unable to pay 9 months interest due to sudden ill health conditions and unavoidable family problems. The plaintiff who is guided by his wife filed the suit according to the whims and fancies of her, by fabricating and preparing the promissory note (29/3/2008) filed this suit and thus the fraud was played by the plaintiff and the same was brought to the notice of the Court to render justice. The fact cannot be changed by 100 proper means and deeds as played by the plaintiff in this suit to have illegal gain. Further Section 3 of the Limitation Act, envisages, it is for the Court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by her parties. Such a jurisdictional fact need not, thus, be pleaded. In any event, the said evidence was admissible for the purpose of contradicting a witness which being a relevant fact should have been considered in its perspective which is laid down by the Honourable Supreme Court in 2007 SAR (Civil) 644 in para 27. The defendant submits that the plaintiff threatened the defendant and other persons in the name of Court and law and personally abusing others. This act has to be condemned. Generally whenever a promissory note is executed, the promissory note will not be given to other party unless total interest and principal is paid. The particulars of prior promissory note is April, 2005 only. This petition is filed after knowing the information about the fact of promissory note. (April, 2005) through Cheruvu Nageswara Rao (who is aware of the fact). The plaintiff must come with clean hands and fair means. 8(b) The defendant submits that the plaintiff studied in V.R. Law College, Nellore during 1991 to 1995 and during that period the plaintiff is penniless and this defendant advanced a sum of RS.25,000/- as plaintiff was his sister’s son and the same amount was not yet returned to the defendant and the plaintiff is liable to pay morally, with reasonable interest. The fact of study period came to the knowledge of defendant today after due enquiry. I submit that the suit is unjust one.” The aforesaid application was contested by the respondent/plaintiff by filing counter. In the counter, it is stated that there are no grounds to seek amendment of written statement and the petitioner herein has filed the said petition intentionally to drag on the matter. In the counter, it is stated that the petitioner has filed the said application intentionally with a mala fide intention to drag on the proceedings and he has already filed affidavit in lieu of chief examination on 26-06-2009 and when the suit was posted for cross-examination of the respondent/plaintiff, after a long time, he filed the present application with false allegations. The Court below, by the impugned order, rejected the application, by recording a finding that the petitioner can put forth his case by eliciting the same during the course of evidence from the cross-examination of P.W.1. Further finding is recorded that the petitioner as well can let evidence by adducing the same facts and there are no grounds to amend the written statement after the evidence was already let in by the respondent. It is contended by the learned counsel for the petitioner that, to prove the case of the petitioner, it is necessary to amend the written statement. It is submitted that the Court below, without considering the application of the petitioner in proper perspective, rejected the same. In support of his contentions, learned counsel has placed reliance on the judgments of the Hon’ble Supreme Court in Rajesh Kumar Aggarwal v. K.K. Modi[1] and Sushil Kumar Jain v. Manoj Kumar and another[2]. On the other hand, it is submitted by the learned counsel for the respondent that there are no grounds to interfere with the order passed by the Court below in this petition filed under Article 227 of the Constitution of India. It is further submitted that as much as already affidavit in lieu of chief examination was filed, if any amendment is permitted at this stage, it would prejudice the case of the respondent. It is submitted that as the evidence was already let in, the application filed for amendment is not permissible in view of the proviso to order VI Rule 17 of the Code of Civil Procedure, 1908. The learned counsel, in support of his submissions, relied on the judgment of the Hon’ble Supreme Court in Vidyabai and Ors. V. Padmalatha & Anr.[3]. In view of the submissions made by the learned counsel for the parties, the only issue which needs to be addressed in the present case is, whether the Court below has erred in rejecting the application filed by the petitioner seeking amendment of the written statement to add paragraphs 8(a) and 8(b) to the written statement already filed. It is fairly well settled that while considering the application filed under Order VI Rule 17 CPC, the main aspect which is to be addressed is whether such amendment is necessary for determining the controversy in question between the parties. Having regard to the pleadings on record, it is to be noticed that the respondent herein filed the suit for recovery of money alleging that the petitioner borrowed money by executing a promissory note dated 29-03-2008. Written statement is filed in the aforesaid suit by the petitioner denying such borrowal, pleading that the respondent did not advance him any loan and the promissory note relied on by him is prepared and fabricated. As such, from the pleadings, it is clear that the core question is whether any such promissory note is executed by the petitioner herein or not. It is also not in dispute that, in the suit, issues were already framed and evidence was also let in by filing affidavit in lieu of evidence. The proposed amendment is based on information stated to have been given by a third party by name Chevuru Nageswara Rao, which is denied in the counter. In that view of the matter, except such statement, there is no other material on record to substantiate the plea of the petitioner that he got information from the aforesaid person subsequent to filing of the affidavit in lieu of chief examination on his behalf. As much as evidence is already started and the respondent has disclosed his case by way of evidence by filing affidavit, if any amendment is permitted at this stage, definitely, it will cause prejudice to the case of the respondent. As much as it is pleaded by the petitioner that the proposed amendment is based on the information furnished by the petitioner, which is denied by the respondent in the counter, amendment cannot be permitted in view of the proviso to order VI Rule 17 CPC. This Court is also of the view that as the real controversy is with regard to the execution of the promissory note on 29-03-2008, the proposed amendment is not necessary to resolve the controversy in the suit. In the judgment relied on by the learned counsel for the petitioner in Rajesh Kumar Aggarwal (1 supra), the Supreme Court has held that Courts should allow all the amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause prejudice to the other side. In the case of Sushil Kumar Jain (2 supra), the Hon’ble Supreme Court has permitted amendment to elaborate and clarify the admission made in written statement, which was filed earlier. In the said judgment, it is also further held that when issues are not framed, the bar under the proviso is not applicable. Thus, the said judgments would not render any assistance in support of the case of the petitioner for the reason that whether proposed amendment is necessary or not and whether if any such amendment is permitted, will it cause any prejudice to the other side are matters which are to be examined with reference to facts of each case. Having regard to the controversy in the present case, which is primarily moving around the correctness or otherwise of the promissory note dated 29-03-2008, the real controversy is confined to execution of such promissory note by the petitioner or not. In that view of the matter, the proposed amendment is not necessary and as held by the Court below, the petitioner can elicit the same during the course of evidence from the cross-examination of P.W.1. Further, the judgment relied on by the learned counsel for the respondent in Rajesh Kumar Aggarwal (3 supra), wherein the Supreme Court has held that the trial commences from the stage of framing of issues, would also support the case of the respondent. For the aforesaid reasons, I do not find any error of law or jurisdictional error committed by the Court below which needs correction by this Court in this petition under Article 227 of the Constitution of India. Civil revision petition is devoid of merits and is accordingly dismissed. No order as to costs. ___________________ (R. SUBHASH REDDY, J) December 1, 2010 MRR [1] (2006) 4 SCC 285 [2] (2009) 14 SCC 38 [3] AIR 2009 SC 1433