MUHAMMED ASHRAF Vs. FASALU RAHMAN

JUDGEMENT

(1.) 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] .