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While dealing with a plea where a written statement was amended after the matter was listed for trial, the Kerala High Court observed that amendments made in a written statement could not completely displace the former admissions made before the amendment.

BACKGROUND

The suit was filed, 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 I.A.No.15 of 2021 seeking to amend the written statement.

PETITIONER’s CONTENTION

The petitioner contented that the purpose of amendment is to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications. Further that the amendment is only clarificatory in nature. The petitioner further submitted that the suit was listed for trial on 04.08.2021, whereas the application for amendment was filed on 29.7.2021, thus there is no negligence on the petitioner’s part. 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.

The Petitioner further contended that the Court should have a liberal approach since it is the written statement being amended and not the plaint.

RESPONDENT’s CONTENTION

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 which has not been pleaded. 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.

FINDING OF TRIAL COURT

The trial court came to the conclusion that certain material admissions are sought to be withdrawn and new facts introduced.

HIGH COURT ORDER

While upholding the order of the Trial Court the Hon’ble Justice V.G Arun observd that 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," Court said.

Relying on the timeline of event the court observed that the petitioner had been permitted to file an additional written statement. Thereafter, he waited till the case was listed for trial before filing the second amendment application.Therefore, the Court observed that even if it is accepted that the application was filed before the date fixed for leading evidence, proviso to Order VI Rule 17 will apply.

Case Title: Muhamed Ashraf v. Fasalu Rahman

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