IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 OP(C).No. 631 of 2010(O) AGAINST THE ORDER IN IA.3329/2010 IN O.S.496/2005 OF ADDITIONAL SUB COURT, KOLLAM. PETITIONERS: DEFENDANTS ------------------------------ 1. RUHAILA BEEVI, D/O.RAHUMA BEEVI, AGED 42 YEARS, RESIDING AT SWADIYA GARDENS, KOCHUVILA MUKKU, ALAMKODE POST, ATTINGAL FROM 'DONE', SANKAR NAGAR -223, NEMOM WARD, KAIMANAM POST, THIRUVANANTHAPURAM. 2. A.SALEEM, S/O.ALIYARUKUNJU, AGED 50, RESIDING AT SWADIYA GARDENS, KOCHUVILA MUKKU, ALAMKODE POST, ATTINGAL FROM 'DONE', SANKAR NAGAR-223, NEMOM WARD, KAIMANAM POST, THIRUVANANTHAPURAM. 3. SABOORA BEEVI, D/O.RAHUMA BEEVI, AGED 48 YEARS RESIDING AT DARUL MUHABEEN, KARICHA MANDAPAM, NEMOM POST, THIRUVANANTHAPURAM K.SUNIL, S/O.KARUNAKARAN, VALYAKATTU VILA, THAZHAM THEKKU, CHATHANOOR POST, KOLLAM. BY ADV. SRI.R.KISHORE SRI.G.HARIPRASAD SRI.ARUN BABU RESPONDENT: PLAINTIFF ------------------------ SUVARNA SATYAN, D/O.KAMALAKSHY, AGED 49 YEARS, RESIDING AT SUVARNALAYAM, ASRAMAM MIDDLE WARD, KOLLAM-691 001. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.R.RANJITH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN O.S.NO.496/2005 ON THE FILE OF THE ADDL. SUB COURT, KOLLAM. EXT.P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.496/2005 ON THE FILE OF THE ADDL. SUB COURT, KOLLAM. EXT.P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.NO.476/2005 ON THE FILE OF THE ADDL. SUB COURT, KOLLAM. EXT.P4 TRUE COPY OF I.A.NO.3329/2010 IN O.S.NO.496/2005 ON THE FILE OF THE ADDL. SUB COURT, KOLLAM. EXT.P5 TRUE COPY OF THE I.A.NO.3465/2010 IN O.S.NO.496/2005 ON THE FILE OF THE ADDITIONAL SUB COURT, KOLLAM. EXT.P6 TRUE COPY OF THE ORDER DATED 16.9.2010 PASSED BY THE ADDITIONAL SUB COURT, KOLLAM IN I.A.NO.3329/2010 IN O.S.NO.496/2005. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ O.P.(C). NO. 631 OF 2010 O ------------------------------------------------------ Dated this the 2nd day of February, 2011 JUDGMENT The defendants in O.S.No.496 of 2005 on the file of the Additional Sub Court, Kollam, challenge the order dated 16.9.2010 in I.A.No.3329 of 2010, by which the court below dismissed the application for amendment of the written statement. 2. The suit was filed by the respondent for realisation of money on the foot of a promissory note. In the written statement filed by the defendants, the execution of the promissory note was denied. They contended that there was no money transaction between the plaintiff and the defendants at any point of time and there was no occasion for execution of any promissory note. In short, the case of the defendants in the written statement was a total denial. 3. The suit was listed for trial on 16.9.2010. That date was fixed in open court when the case was called on 15.7.2010. The proof affidavit of the plaintiff was also filed on 16.9.2010. O.P.(C) NO.631 OF 2010 :: 2 :: 4. After the case was posted for trial in the special list, the defendants filed I.A.No.3329 of 2010 to amend the written statement incorporating, inter alia, the following contentions: The husband of the plaintiff is conducting a chit funds, which is an unregistered firm. The defendants had prized a chit run by that firm. A sum of Rupees Three lakhs was paid to the defendants. At that time, several blank papers were obtained by the firm. Some of the blank papers have been misused to fabricate the promissory note, on the basis of which the suit was filed. 5. The court below dismissed the application on two grounds: (1) If the amendment is allowed, it would have the effect of withdrawing an admission; and (2) The application is highly belated and it was filed on the date on which the case is posted for trial. 6. The petitioners contended that the finding of the court below that the application was filed on the date on which the case was posted for trial is not correct. The application was filed on 8.9.2010. O.P.(C) NO.631 OF 2010 :: 3 :: 7. The finding of the court below that the additional written statement would take away an admission made by the defendants in the original written statement does not appear to be correct. Denial of a promissory note in the written statement cannot be treated as an admission by any sense of the term. The learned counsel for the respondent submitted that admission is defined in Section 17 of the Evidence Act and any statement which suggests any inference as to any fact in issue would amount to admission. Denial of the execution of the promissory note could not be such a statement coming within the purview of Section 17 of the Evidence Act. Therefore, the court below was not right in taking the view that by the amendment of the written statement, the admission made in the written statement was attempted to be taken away. 8. Learned counsel for the respondent pointed out that going by the proviso to Rule 17 of Order VI of the Code of Civil Procedure, the application could not be allowed. It is submitted that no special reasons have been stated by the defendants and there is no averment that in spite of due diligence they could not have raised the O.P.(C) NO.631 OF 2010 :: 4 :: matter before the commencement of trial. 9. Learned counsel for the petitioners contended that several other suits were filed by the firm against the defendants and the correct facts were stated in the written statements filed in those cases. However, those contentions could not be incorporated in the written statement filed in the present case, due to wrong legal advice. It is submitted that two such suits were tried and those suits were dismissed accepting the contention put forward by the defendants. Learned counsel for the petitioners relied on the decision of the Supreme Court in Usha Balashaheb Swami and others v. Kiran Appaso Swami and others ((2007) 5 SCC 602), wherein it was held thus: “18. It is now well settled by various decisions of this Court as well as those by the High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. In this connection, the observation of the O.P.(C) NO.631 OF 2010 :: 5 :: Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922 PC 249) may be taken note of. The Privy Council observed: (IA pp.216-17) “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” 19. It is equally well-settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be O.P.(C) NO.631 OF 2010 :: 6 :: objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 20. Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case (see B.K.Narayana Pillai v. Parameswaran Pillai ((2000) 1 SCC 712) and Baldev Singh v. Manohar Singh ((2006) 6 SCC 498)). Even the decision relied on by the plaintiff in Modi Spg. clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (1995 Supp (3) SCC 179). In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi case as follows: (SCC p.180, para 3). O.P.(C) NO.631 OF 2010 :: 7 :: “3. As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.”” 10. It is true that there was delay on the part of the defendants in the matter of filing the application for amendment of the written statement. It is also true that the contentions are, to some extent, conflicting. But, it is well settled that inconsistent pleas can be taken by the defendants. I am of the view that the delay could be compensated in terms of costs. Taking into account the relevant facts and circumstances of the case, I am of the view that it is only proper to allow the application for amendment of the written statement, since it would advance the cause of justice and it would enable the court to effectively and completely adjudicate upon the disputes involved in the case. O.P.(C) NO.631 OF 2010 :: 8 :: 11. There is another angle in which the matter could be dealt with. Going by the original written statement, since there was total denial, the burden of proof was on the plaintiff to prove the signature and execution of the promissory note. Now the defendants have raised a contention that the promissory note was fabricated using the signed papers taken from them. To that extent, the plaintiff is relieved of the burden of proving the signature of the defendants in the promissory note. Therefore, in the matter of proof, the plaintiff stands to benefit, at least to some extent, if the amendment sought for is allowed. This aspect was not taken note of by the court below. As stated earlier, the delay could be compensated in terms of costs. For the aforesaid reasons, the Original Petition is allowed. The order passed by the court below is set aside and the application for amendment of the written statement is allowed on payment of costs of Rupees Three thousand to the plaintiff. (K.T.SANKARAN) Judge ahz/