Amendments In Written Statement Cannot Completely Displace Former Admissions: Kerala High Court

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 cannot completely displace the former admissions made before the amendment. 

Justice V.G Arun while dismissing the original suit remarked:

"...in the case at hand, 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."

Factual Background: 

The respondent herein had approached the trial court seeking to cancel two assignment deeds registered by him in favour of the petitioner.

As per the procedure involved, both parties submitted their statement. However, after the petitioner filed his written statement, the respondent amended the plaint. Thereupon, the petitioner filed an additional written statement.

Subsequently, when the case was listed for trial, the petitioner filed another application seeking to amend the written statement.

The respondent herein 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 citing 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.

Aggrieved by the dismissal, the petitioner approached the High Court. 

Contentions Raised:

Appearing for the petitioner, Advocate R. Sudhish assailed the findings and submitted that the purpose of the amendment was to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications. He submitted that the amendment was only clarificatory in nature.

As regards the finding that the petitioner is guilty of callous negligence, the Counsel asserted that the suit was listed for trial on 4th August 2021, whereas the application for amendment was filed on 29th July 2021.

Since the trial had not yet commenced, he argued that the proviso to Order VI Rule 17, interdicting the court from allowing the amendment, in the absence of due diligence by the party, would not be applicable in the case.  

Moreover, it was submitted that the trial court should have taken a liberal approach, as it was the written statement that was sought to be amended and not the plaint.  

Advocate K.M.Firoz representing the respondent contended that the amendments if allowed would change the nature and scope of the suit. 

He argued that the amendments were 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 was further 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.

The Counsel pointed out that there being no whisper in the amendment application about the due diligence factor, the trial court was fully justified in dismissing the amendment application.

Findings of the Court:

Upon perusal of the submissions made and the material available on record, the Court found no reason to arrive at a different conclusion than the trial court. More so, it was noted that even in the lengthy explanations in the additional written statement, the petitioner had not mentioned the contentions now sought to be incorporated.

The respondent had referred to the decision of the Supreme Court in Modi Spinning and Weaving Mills Co.Ltd v. M/s.Ladha Ram and Company [AIR 1977 SC 680] to point out that the defendant cannot be permitted to change his case completely and substitute an entirely new case.

The Court observed that in the case at hand, 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 the amendment of written statements will not justify the approval of such an application.

Similarly, the sequence of events revealed 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.

There is no dispute over the fact that the amendment application was filed after the plaintiff had submitted his affidavit in lieu of chief examination. Therefore, the Bench rules that 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. 

The petitioner had relied on the Apex Court decision in Estralla Rubber v. Dass Estate (P) Ltd [(2001) 8 SCC 97] to argue that 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. 

However, the Court found it pertinent to note that 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 prejudice was caused to the plaintiff. 

Considering the nature of the amendments and the stage at which the application for amendment was filed, the Court found that trial court was fully justified in rejecting the application.  As a result, the original petition was dismissed.

Case Title: Muhamed Ashraf v. Fasalu Rahman

Click Here To Read The Order