The Kerala High Court has recently rejected a plea for allowing application for amendement of proceeding considering the stage of filing and nature of amendments.
Brief Facts of Case:
The petitioner herein was a Defendant in a suit seeking to cancel two assignment deeds registered by the respondent in favour of the petitioner. After the petitioner filed 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 amendment application to change the written statement. Plaintiff opposed the application and contended that the amendment was totally misconceived and filed only for the purpose of protracting the suit.
The Trial Court dismissed the application holding that the attempt of the petitioner was to withdraw the admissions in the written statement and to incorporate new contentions. The Court also found the petitioner guilty of wanton negligence and callousness.
Petitioner's Submission
Ld. Counsel for the Petitioner submitted that the purpose of amendment is to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications and that they were only clarificatory in nature. He denied the allegations of being guilty of callous negligence as the application was filed prior to date of commencement of Trial. He asserted that thus Order VI Rule 17, interdicting the court from allowing the amendment, in the absence of due diligence by the party, was not applicable. He acussed the Court of not taking 'liberal approach'.
Respondent's Submission
Ld. Counsel for the Respondent stressed on the nature of amendments that they intended to set up a case. 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'.
The Counsel cited SC Judgement in Modi Spinning & Weaving Mills Co. Ltd. & ANR Vs. Ladha Ram & Co (1976 Latest Caselaw 235 SC) which states that the defendant cannot be permitted to change his case completely and substitute an entirely new case.
He further pointed out that the application for amendement was filed post his 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. He mentioned that the application didn'y talk about due diligence factor and thus the trial court was fully justified in dismissing it.
High Court's Observation
The Court upon examining the nature of amendments agreed with the Trial Court's view that certain material admissions were sought to be withdrawn and new facts were introduced. The Court cited SC judgement in Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others, 2015 Latest Caselaw 618 SC, in which it was 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."
Recalling the judgements cited by the Ld. Counsel for Petitioner to substantiate his case, the Court clarified that Pavithran v. Narayanan which states 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 would have been applied, had the attempt of the petitioner been to only explain or clarify the admission. Contrary, it was to withdraw the admissions and set forth an entirely new case, the Court stated.
It further held that the amendments would, not only have the effected of the defendant making inconsistent and alternative pleadings, but also would have completely displaced the admissions made in the written statement. In Court's view, even the most liberal approach towards amendment of written statements will not justify the approval of such an application.
The Court pointed out that the petitioner waited till the case was listed for trial before filing the second amendment application despite being permitted to file additional written statement. It held that the amendment application was filed after the plaintiff had submitted his affidavit in lieu of chief examination and 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.
It therefore cited Sasikala (supra) in which it was 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.
Again clarifying on the SC judgement in Mohinder Kumar Mehra v. Roop Rani Mehra, 2017 Latest Caselaw 883 SC cited by Ld. Counsel for Petitioner, the Court stated 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 while in the present case 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 provison to Order VI Rule 17 will apply.
Examining the contentions made on basis of Estralla Rubber v. Dass Estate, 2001 Latest Caselaw 480 SC whether prejudice is caused to the Respondent or not as the judgements states,"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.", the Court observed:
Justifying the Trial Court's stance and on the basis of above observations, the Court thus dismissed the petition.
Read Judgement Here:
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