1. This petition filed by the petitioner/plaintiff for setting aside the order passed by the Principal Munsiff’s Court, Kochi, for having dismissed the application filed by the petitioner/plaintiff under Order VI Rule 17 of the Code of Civil Procedure, for seeking amendment.

2. Heard the learned counsel for the petitioner and learned counsel for the respondent.

3. The case of the petitioner is that the petitioner being the plaintiff filed a suit for realisation of money as against the defendant for Rs.7,00,000/- with 8% interest per annum. The plaintiff has instructed his counsel to file the suit, but while filing the suit the counsel did some mistakes in the pleading. As the plaintiff has paid Rs.2,00,000/- by way of RTGS through bank and another one lakh was given in cash on 29.06.2018. Rs.4,00,000/- on 30.06.2018 thus totaling to Rs.7,00,000/-. Subsequently, the defendant has repaid a sum of Rs.4,00,000/- on 19.07.2018. Thereafter, on 30.07.2018, once again the plaintiff once again has paid Rs.4,00,000/- to the defendant by way of cheque which was encashed by the defendant. Thereafter, the defendant did not repay the amount. Hence the plaintiff filed the suit.

4. The defendant appeared and filed a written statement taking the defence for having received Rs.6,00,000/- from the plaintiff and repaid Rs.6,00,000/- to the plaintiff on two different dates. But, later the plaintiff realised that there is a mistake occurred in the plaint, wherein the plaintiff counsel has not mentioned Rs.4,00,000/- paid by the plaintiff to the defendant on 30.07.2018. As also, there was mistake in the date as the defendant though received Rs.4,00,000/- on 30.07.2018, but he has mentioned in the promissory note with antedate 30.06.2018. The same was not narrated by the plaintiff counsel in the plaint. Therefore, the plaintiff wants to amend the pleadings. Hence, he has filed an application seeking amendment which came to be dismissed. Aggrieved by the impugned order, the petitioner is before this Court.

5. The learned counsel for the petitioner has contended that a mistake of the plaintiff counsel cannot be a ground for rejection of the application. Even if the amendment is allowed, no prejudice will be caused to defendant’s case. Furthermore, the plaintiff has already produced a bank statement substantiating the payment of Rs.4,00,000/- made to the defendant on 30.07.2018. But, that was not brought by the plaintiff counsel in the pleadings. Therefore, allowing the amendment will not change the nature of the suit and the nature of the claim. Hence, the learned counsel for the petitioner prayed for allowing the original petition and set aside the impugned order.

6. Per contra, the learned counsel for the respondent has supported the order passed by the trial court and contended that as per the claim made by the plaintiff that he has paid Rs.6,00,000/- to the defendant on 29.06.2018. In fact, he has stated only Rs.2,00,000/- paid on that day. But, the defendant admitted in the written statement that he has received Rs.6,00,000/- from the plaintiff and thereafter the defendant has repaid Rs.4,00,000/- with Rs.30,000/- interest and subsequently after two months, once again he has paid Rs.2,00,000/- as per the defendant’s statement, he has discharged the entire loan amount, there is no money payable to the plaintiff. After framing of issues, the matter is posted for pre-trial steps at the stage the petitioner/plaintiff filed the application to make an amendment for claiming a fresh claim of Rs.4,00,000/- which is a different transaction, where the defendant has also admitted in the counter filed to the petition for amendment. Therefore, if the amendment is allowed, the claim for Rs.4,00,000/- is barred by limitation. Therefore, the learned counsel for the respondent prayed for dismissal of this original petition.

7. The learned counsel for the parties relied upon the judgment of the Hon’ble Supreme Court as under:

                  Ragu Thilak D.John v. S.Rayappan and Others, 2001 KHC 1029 Varun Pahwa v. Renu Chaudhary, 2019 KHC 6261 Rajkumar Gurawara (Dead) through LRs v. M/s.S.K.Sarwagi and Co.(P) Ltd., 2008 (2) KHC 977

8. Having heard the arguments of the learned counsel for the parties and perused the records, the points that arise for consideration is under:-

                  (i)       whether the petitioner has made out a case for allowing the amendment at this stage

                  (ii)      whether the impugned order warrants any interference by this Court?

9. On perusal of the records, especially the plaintiff relied upon the suit document which is a promissory note, where it is mentioned the date as 30.06 .2018, wherein the plaintiff has said to be paid Rs.2,00,000/- via RTGS on 29.06.2018 and by cash of Rs.1,00,000/-. Thereafter, on the very next day, ie. on 30.06.2018, another Rs.4,00,000/- has been paid, totaling to Rs.7,00,000/- payable by the defendant. Based upon the document, the suit can be filed by the plaintiff. The defendant has admitted in the written statement that he has received Rs.6,00,000/- from the plaintiff on 30.06.2018 and the defendant has stated on 19.07.2018, he has repaid Rs.4,00,000/- through RTGS from his account at IDBI Bank, Thoppumpady and Rs.30,000/- has been paid as interest for 21 days. Thereafter, the balance amount of Rs.2,00,000/- has been repaid on 30.01.2021 with Rs.20,000/- interest. Thereby he has paid all the debts. Therefore, it is contended that the document was created by the plaintiff for making wrong claim. Hence, the learned counsel prayed for dismissing the suit.

10. Subsequent to the framing of the issues, the plaintiff realised that there is some mistake crept in the pleadings. Hence, he filed the present application. The counter affidavit filed by the defendant also reveals that he has admitted that he has received Rs.4,00,000/- on 30.07.2018. However, the learned counsel for the respondent has contended that Rs.4,00,000/- is not the subject matter of the plaint in the suit. Therefore, it is a different transaction that cannot be included in the suit. Whereas the plaintiff case is that the promissory note has been prepared by the defendant himself by putting antedate in Ext.P2 promissory note. Therefore, it is required to be mentioned in the pleadings.

11. On careful perusal of the Order VI Rule 17 of the Code of Civil Procedure, where the parties are permitted to amend their respective pleadings, it is necessary to determine the real controversy between the parties and even the amendment can be allowed after the commencement of the trial. Admittedly, the trial has not yet commenced and it is at the stage of pre-trial steps.

12. The only contention of the plaintiff is that the counsel for the plaintiff committed the mistake by not mentioning Rs.4,00,000/- which was again paid by the plaintiff to the defendant on 30.07.2018 and therefore it has to be mentioned in the pleadings. However, to support his contention, he has produced the bank statement which reveals that a sum of Rs.4,00,000/- has been transferred by way of cheque to the respondent showing the name as ‘Prasath C’. The learned counsel for the petitioner also relied upon the judgment of the Hon’ble Supreme Court reported in 2019 KHC 6261 in the case of Varun Pahwa v. Renu Chaudhary, wherein the Apex Court has held that in case of amendment of plaint wherein an inadvertent mistake on the part of the counsel who drafted the plaint, cannot be refused to be corrected, when mistake is apparent from the reading of the plaint. In the instant case, the petitioner has produced documents showing that on 30.07.2018, a sum of Rs.4,00,000/- has been paid to the respondent by cheque which was encashed by the respondent. However, the contention of the petitioner is that the date mentioned by the defendant, who is said to be a long time friend, was 30.06.2018, instead of mentioning 30.07.2018. The facts and disputed facts are to be determined by the court by recording the evidence by way of full fledged trial. Even a limitation point also can be urged by the defendant by filing additional written statement. If a mistake is committed by the counsel, the plaintiff should not be made to suffer. It cannot be said to be a different transaction as contended by the defendant, it is a continuous transaction between the parties.

13. On the other hand, the learned counsel for the respondent also relied upon the judgment of the Hon’ble Supreme Court reported in 2008 (2) KHC 977 in the case of Rajkumar Gurawara (Dead) through LRs v. M/s.S.K.Sarwagi and Co.(P) Ltd., wherein the Apex Court has held that amendment can be allowed in order to determine real controversy between the parties. Therefore, the contention raised by the counsel for the respondent cannot be accepted. On the other hand, the counsel for the respondent has contended in view of the allowing the amendment, the recovery is barred by limitation. In this regard, the learned counsel for the petitioner relied upon another judgment of the Hon’ble Supreme Court reported in 2001 KHC 1029 in the case of Ragu Thilak D.John v. S.Rayappan and Others, wherein the Apex Court has held that even the relief sought by the parties barred by limitation, where it is arguable that relief sought by way of amendment would be barred by law of limitation, held, amendment should still be allowed and the disputed matter made the subject matter of an issue. In view of this judgment relied upon by the learned counsel for the petitioner, even the transaction of Rs.4,00,000/- is barred by limitation, the Court can frame a additional issue regarding the said payment and the defendant may be permitted to file an additional written statement. This would allow for a complete adjudication of the dispute on its merits. If the plaintiff fails to amend the pleadings and claim for Rs.4,00,000/-, he cannot file a separate suit which would be barred under Order II Rule 2 of the Code of Civil Procedure in future and if the plaintiff requires to make all the claims in his favour and if any claim is abandoned, again he cannot file a separate suit. Such being the case, the amendment is of course allowable for the purpose of avoiding the multiplicity of litigation. Such being the case, in order to determine the real controversy between the parties, the amendment sought by the plaintiff ought to have been allowed by the trial court. Therefore, I am of the view that the petitioner has made out a case for allowing the amendment and the impugned order rejecting the application is unsustainable and warrants interference by this Court.

                  Accordingly, the original petition is allowed and the impugned order is set aside. The amendment application filed by the petitioner is hereby allowed. The petitioner is permitted to carry out the amendment within 15 days from the date of receipt of this judgment by the trial court. The respondent may be permitted to file an additional written statement. The trial court is directed to frame additional issues, if any, and proceed with the trial, in accordance with law.