Kerala High Court: V.G.Arun, J., held that no amendment can be allowed in written statement where it seeks to change former admissions. The Bench stated,
“Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.”
Background
The petitioner was the defendant in a suit filed for seeking to cancel two assignment deeds registered by the respondent in favour of the petitioner. After the petitioner filed his written statement, the respondent amended the plaint. Though the petitioner filed additional written statement, subsequent interlocutory application was filed by him seeking to amend the written statement.
The Plaintiff opposed the application, contending that the amendment was totally misconceived and filed only for the purpose of protracting the suit. The Trial Court dismissed the amendment application, holding that the attempt of the petitioner was 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.
The petitioner assailed the findings of Trial Court and submitted that the purpose of amendment was to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications and the amendment was only clarificatory in nature.
Amendment in Question
The amendment was sought with regard to change in percentage of share from 22.5% to 32.5% and payment in the name of the power of attorney of the defendant to payment to the defendant and the term ‘adjustment’ was sought to be replaced with ‘payment’.
Opinion of the Court
Noticeably, even in the lengthy explanations in the additional written statement, the petitioner had not mentioned about the contentions now sought to be incorporated. Therefore, differentiating Pavithran, wherein it had been held that “if an admission could be explained away or can be rescinded or superseded, there cannot be any prohibition against such admission being allowed to be taken away by amending the pleading”, the Bench stated that had the attempt of the petitioner been to only explain or clarify the admission the aforementioned decisions would have applied, on the contrary, the attempt was to withdraw the admissions and set forth an entirely new case.
Reliance was placed by the Court on Modi Spinning and Weaving Mills (supra), wherein the Supreme Court had held that the defendant cannot be permitted to change his case completely and substitute an entirely new case. The Bench remarked,
“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.”
Though the petitioner had been permitted to file additional written statement, he waited till the case was listed for trial before filing the second amendment application. Moreover, there was no dispute to the fact that the amendment application was filed after the plaintiff had submitted his affidavit in lieu of chief examination. Therefore, the Bench stated that 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.
Noticing that the affidavit in lieu of chief examination was filed prior to the filing of application for amendment and the Bench held that even if it was accepted that the application was filed before the date fixed for leading evidence, the interdiction in the proviso to Order VI Rule 17 would apply.
The suit was included in the provisional list for the month of August, 2021 on the request of the plaintiff, since he was 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, the Bench was of the view that substantial loss was caused to the plaintiff by the conduct of the petitioner.
Accordingly, it was held that the Trial Court was fully justified in rejecting the application. [Muhammed Ashraf v. Fasalu Rahman, OP(C) No. 1374 of 2021, decided on 10-09-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance by:
For the Petitioner: Advocate R. Sudhish and Advocate M. Manju
For the Respondent: Advocate K.M. Firoz and Advocate M. Shajna