In Ram Niranjan Kajaria, the Apex Court
held that even though an attempt to wholly resile
from an admission cannot be permitted, the
admission can be clarified or explained by way of
amendment and the basis of admission can be
attacked in a substantive proceedings. This court
in Pavithran also held that if an admission could
be explained away or can be rescinded or
superseded, there cannot be any prohibition
against such admission being allowed to be taken
away by amending the pleading. The aforementioned
decisions would have applied, had the attempt of
the petitioner been to only explain or clarify the
admission. On the contrary, the attempt here is to
withdraw the admissions and set forth an entirely
new case. As held by the Apex Court in Modi
Spinning and Weaving Mills (supra), the defendant
cannot be permitted to change his case completely
and substitute an entirely new case. Here, the
the amendments would, not only have the effect of
the defendant making inconsistent and alternative
pleadings, but also of completely displacing the
admissions made in the written statement. Even the
most liberal approach towards amendment of written
statements will not justify the approval of such
an application.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE V.G.ARUN
MUHAMMED ASHRAF, Vs FASALU RAHMAN,
O.P.(C)No.1374 of 2021
Dated: 10TH DAY OF SEPTEMBER 2021
Dated this the 10th day of September, 2021
The petitioner is the defendant in O.S.No. 61
of 2019 on the files of the Sub Court, Sulthan
Bathery. The suit is filed, seeking to cancel two
assignment deeds registered by the respondent in
favour of the petitioner. After the petitioner
filing his written statement, respondent amended
the plaint. Thereupon, the petitioner filed
additional written statement. Later, when the case
was listed for trial, the petitioner filed
I.A.No.15 of 2021 seeking to amend the written
statement. Plaintiff opposed the application,
contending that the amendment is totally
misconceived and filed only for the purpose of
protracting the suit. The trial court dismissed
the amendment application vide Ext. P5. Hence, the
original petition.
2. The amendment application was dismissed
finding that the attempt of the petitioner is to
withdraw the admissions in the written statement
and to incorporate new contentions. The trial
court also found the petitioner guilty of wanton
negligence and callousness.
3. Sri.R.Sudhish, learned Counsel for the
petitioner assailed the findings and submitted
that the purpose of amendment is to withdraw
certain portions from the written statement and to
incorporate identical averments with minor
modifications. According to the learned Counsel,
the amendment is only clarificatory in nature. As
regards the finding that the petitioner is guilty
of callous negligence, it is submitted that the
suit was listed for trial on 04.08.2021, whereas
the application for amendment was filed on
29.7.2021. The trial having not commenced, the
proviso to Order VI Rule 17, interdicting the
court from allowing the amendment, in the absence
of due diligence by the party, is not applicable.
Moreover, the Court should have taken a liberal
approach, as it was the written statement that was
sought to be amended and not the plaint. In
support of the contention, the following decisions
are relied on; Pavithran v. Narayanan [1997 (2)
KLT 271], Estralla Rubber v. Dass Estate (P) Ltd
[(2001) 8 SCC 97], Ram Niranjan Kajaria and
another v. Sheo Prakash Kajaria and others [2015
KHC 4631] and Mohinder Kumar Mehra v. Roop Rani
Mehra and others [(2018) 2 SCC 132].
4. Sri.K.M.Firoz, learned Counsel for the
respondent contended that the amendments, if
allowed, would change the nature and scope of the
suit. According to the learned Counsel, the
amendments are not clarificatory or explanatory in
nature, but are intended to set up a case,
hitherto not pleaded. To buttress the argument,
particular emphasis was laid on the portions in
the amendment where the percentage of share is
sought to be changed from 22.5% to 32.5%, payment
in the name of the power of attorney of the
defendant changed to payment to the defendant and
the term 'adjustment' replaced with 'payment'. It
is pointed out that the application for amendment
was filed after the respondent had filed his
affidavit in lieu of chief examination and trial
commenced from the date on which the affidavit in
lieu of chief examination was filed. There being
no whisper in the amendment application about the
due diligence factor, the trial court was fully
justified in dismissing the amendment application.
In support of his contentions, learned Counsel
relied on the decisions in Modi Spinning and
Weaving Mills Co.Ltd v. M/s.Ladha Ram and Company
[AIR 1977 SC 680], Heera Lal v. Kalyan Mal and
others [(1998) 1 SCC 278] and Sasikala T.V v.
C.P.Joseph [2021 (1) KHC 23], Usha Balashaheb
Swami and others v. Kiran Appaso Swami and others
[(2007) (5) SCC 602].
5. In the impugned order, after referring to
the relevant portions of the written statement and
the amendment application, the trial court came to
the conclusion that certain material admissions
are sought to be withdrawn and new facts
introduced. The relevant portions of the written
statement and the amendment application has been
extracted in the impugned order. Having heard the
learned Counsel and having scrutinised the
extracted portion in the order, I find no reason
to arrive at a different conclusion. More so,
since even in the lengthy explanations in the
additional written statement, the petitioner had
not mentioned about the contentions now sought to
be incorporated.
6. In Ram Niranjan Kajaria, the Apex Court
held that even though an attempt to wholly resile
from an admission cannot be permitted, the
admission can be clarified or explained by way of
amendment and the basis of admission can be
attacked in a substantive proceedings. This court
in Pavithran also held that if an admission could
be explained away or can be rescinded or
superseded, there cannot be any prohibition
against such admission being allowed to be taken
away by amending the pleading. The aforementioned
decisions would have applied, had the attempt of
the petitioner been to only explain or clarify the
admission. On the contrary, the attempt here is to
withdraw the admissions and set forth an entirely
new case. As held by the Apex Court in Modi
Spinning and Weaving Mills (supra), the defendant
cannot be permitted to change his case completely
and substitute an entirely new case. Here, the
the amendments would, not only have the effect of
the defendant making inconsistent and alternative
pleadings, but also of completely displacing the
admissions made in the written statement. Even the
most liberal approach towards amendment of written
statements will not justify the approval of such
an application.
7. The sequence of events reveal that the
petitioner had been permitted to file additional
written statement. Thereafter, he waited till the
case was listed for trial before filing the second
amendment application. Going by the order, the
application for amendment was filed on 2.8.2021
and considered by the court when the suit was
taken up for evidence. There is no dispute to the
fact that the amendment application was filed
after the plaintiff had submitted his affidavit in
lieu of chief examination. According to the
learned Counsel for the petitioner, the amendment
application having been filed before examination
of parties had commenced, the interdiction under
Order 6 Rule 17 CPC is not attracted. On the other
hand, learned Counsel for the respondent contended
that trial had commenced from the day on which the
plaintiff had submitted his affidavit in lieu of
chief examination. Therefore, it was incumbent
upon the petitioner to have satisfied the trial
court that he could not have filed the application
earlier, in spite of due diligence. In Sasikala
(supra), this Court, after considering the
precedents, held that the trial in a suit
commences on the date on which the affidavit in
lieu of examination in chief of a party or his
witness is filed for the purpose of recording
evidence. In Mohinda Kumar (supra), the amendment
application was filed before evidence was led by
the plaintiff and hence, the Apex Court held that
the amendment application was filed before the
commencement of trial. In the case at hand, the
affidavit in lieu of chief examination was filed
prior to the filing of application for amendment
and therefore, even if it is accepted that the
application was filed before the date fixed for
leading evidence, the interdiction in the proviso
to Order VI Rule 17 will apply.
8. Estralla Rubber is cited to contend that
the Apex Court has held the delay in making an
application for amendment, by itself, cannot be a
ground for rejection of the application, unless
serious prejudice is caused to the other party and
accrued rights taken away. It may be pertinent to
note that in the case at hand, the suit was
included in the provisional list for the month of
August, 2021 on the request of the plaintiff,
since he is working abroad. The plaintiff had come
down for the purpose of giving evidence and also
submitted his affidavit in lieu of chief
examination. The amendment application was filed
thereafter, just prior to the date fixed for
trial. Being so, there cannot be any doubt that
substantial was caused to the plaintiff.
9. Considering the nature of the amendments
and the stage at which the application for
amendment was filed, the trial court was fully
justified in rejecting the application.
In the result, the original petition is
dismissed.
Sd/-
V.G.ARUN
JUDGE
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