S.L. Yadav Vs. Mahinder Kaur - Court Judgment

Excerpt:
- - the petitioner is said to be a simple poor person and the plaint was drafted by his counsel. the parties are directed to appear before the trial court on 24th november, 2005. since there is no appearance on behalf of defendant, the learned trial judge will issue court notice to the defendant as well as his learned counsel.j.p. singh, j.1. this petition under article 227 of the constitution of india is directed against the order 11.3.2004 passed by the learned civil judge, delhi dismissing an application under order vi rule 17 of code of civil procedure for amendment of the plaint.2. i have heard mr. s.s. panwar, learned counsel for the petitioner. none was present for the respondent even on the last date of hearing. i have gone through the impugned order and copies of the documents placed on the file.3. briefly the facts are that the petitioner herein (plaintiff in the trial court hereinafter referred to as plaintiff) filed a suit under order xxxvii cpc for recovery of rs. 1,09,000/- against the defendant. it is pleaded that plaintiff advanced a friendly loan of rs. 1,70,000/- to the defendant. in return for the said loan the defendant issued two account payee cheques, and also assured to begin payment of interest @ 24 % per annum because that was the promise given by the defendant at the time of taking the loan. the plaintiff presented one cheque which was dishonoured. decree for the sum of rs. 1,09,000/- and interest @ 24 per cent per annum was claimed. the defendant contested the matter, the plaintiff thereafter moved an application under order vi rule 17 cpc stating that inadvertently he could not mention in the plaint the amount of previous interest and wanted to add a sum of rs. 73,030/- as interest @ 24% per annum and accordingly sought amendments of paras 13 and 14 of the plaintiff. para 13 is for revaluation and payment of court fee and para 14 is the prayer clause. the application was opposed by the learned counsel for the defendant. on the date of arguments learned counsel for the plaintiff was not present. learned counsel for the defendant opposed on the ground that the plaintiff deemed to have relinquished the said claim at the time of filing of the suit and there was bar of order ii rule 2, cpc. the application was, thereforee, dismissed.4. the learned counsel for the petitioner-plaintiff has submitted that the case was at initial stage and due to sheer inadvertence the previous interest could not be mentioned and that has been averred in para 4 of the application and has argued that this was only an arithmetical slip and may be due to the erratic drafting. the petitioner is said to be a simple poor person and the plaint was drafted by his counsel.5. i have gone through the copy of the plaint. in para-2 the facts and circumstances how defendant influenced the plaintiff to give loan on the misrepresentation that the money was to be spent in export business which will fetch huge profits for the plaintiff plus interest @ 24% every month. since this pleading was already there and only while drafting the plaint the calculation of the principal and interest have not been made and in the prayer straightaway the interest from the date of filing till realization is made which is somewhat contradictory to the pleadings in the plaint.6. in my view, this is simply a clerical and an arithmetical mistake and if the error is not allowed to be corrected, this is likely to cause loss to the petitioner, moreover the case is at initial stages and the defendant will have full opportunity to defend the case on whatever grounds are available to the defendant.7. needless to say that in order ii rule 2, cpc the basic intention is to prevent further litigation on the same point and to include entire claims in the same suit. the plaintiff may relinquish any portion of his claim to bring the suit within the jurisdiction of the court and where a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterward sue in respect of the portion so omitted or relinquished.8. in my view in the present case the plaintiff has not omitted to sue nor has he relinquished any part of the claim. when we read the body of the plaint as a whole it is rather highlighted that besides the promised 24% interest per month there was more assurance of profits over and above the interest. i am, thereforee, of the view that clerical and arithmetical slip was on the part of the learned counsel for the plaintiff.9. considering all the facts and circumstances i set aside the impugned order which seems to have been passed in haste. i, thereforee, allow the petition as also the amendment, but subject to costs of rs. 2500/- (rupees two thousand five hundred only), which the petitioner-plaintiff will pay to the respondent-defendant. the parties are directed to appear before the trial court on 24th november, 2005. since there is no appearance on behalf of defendant, the learned trial judge will issue court notice to the defendant as well as his learned counsel.10. the petition is accordingly disposed of.