IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 25TH JULY 2008 / 3RD SRAVANA 1930 CRP.No. 436 of 2001(B) ---------------------- AGAINST THE ORDER IN IA.3015/1999 IN OS.117/93 of PRINCIPAL SUB COURT, PALAKKAD .................... REVN. PETITIONERS/PETITIONERS/SUPPL. DEFENDANTS 3 TO 5: ------------------ 1.G.P. NAIR PLANTATIONS, REPRESENTED BY MANAGING PARTNER V.K. SRINIVASAN. 2.VASCO RUBBER & TYRE COMPANY (PRIVATE LTD.), REPRESENTED BY ITS MANAGING DIRECTOR V.K. SRINIVASAN. 3.V.K. SRINIVASAN, S/O. KUNJU VELAPPAN, KALLIYARA ESTATE BUNGLOW, MALAMPUZHA-I VILLAGE, AKAMALAVARAM, KADUKKAMKUNNU AMSOM A ND DESOM, PALAKKAD. BY ADV. SRI.T.N.HAREENDRAN RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 AND 2: ------------- 1.KALLEKULANGARA EMOOR BHAGAVATHY DEVASWOM, AKATHETHARA, PALAKKAD, REPRESENTED BY EXECUTIVE OFFICER, A.K. SUDHEER BABU, S/O. CHITHAMBARAN. 2.G.P.NAIR FAMILY TRUST, REPRESENTED BY ITS MANAGING TRUSTEE JAYASREE NAIR, D/O. LATE G.P. NAIR, 108, NAIR MAHAL, S.B. MARG, MAHIM, MUMBAI-16 3.G.P. NAIR FAMILY TRUST, REPRESENTED BY ITS TRUSTEE MRS. PRAKASHINI ALIAS PRAKASHINI G. MENON, W/O. LATE GOVINDANKUTTY MENON, 108, NAIR MAHAL, S.B. MARG, MUMBAI -16 BY ADV. SRI.V.CHITAMBARESH (SR.) FOR R1 SRI.KRISHNA PRASAD. S FOR R1 SRI.N.N.SUGUNAPALAN (SR.) FOR R2 & R3 SRI.ANTONY C. ETTUKETTIL FOR R2 & R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN C.M.P. NO.917 OF 2001 IN C.R.P. NO.436 OF 2001. DISMISSED 25.7.2008 (HARUN-UL-RASHID, JUDGE) HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 436 OF 2001 -------------------------------------------- Dated this the 25th day of July, 2008 O R D E R Supplemental defendants 3 to 5 in O.S. No.117 of 1993 on the file of the Principal Sub Court, Palakkad are the revision petitioners. They challenge the order dated 12.10.2000 in I.A. No.3015 of 1999 in the said suit by which the court below dismissed the application for amendment of the written statement. 2. The suit was filed by the first respondent as plaintiff for recovery of possession of 1300 acres of rubber plantation. Respondents 2 and 3 were the defendants. The revision petitioners were subsequently impleaded as supplemental defendants 3 to 5. They filed a written statement on 8.7.1994 and an additional written statement on 16.8.1995. It is the case of the revision petitioners that in the written statement dated 8.7.1994 they had mistakenly pleaded that the lease was in favour of G.P. Nair in his individual capacity and V.K. Srinivasan. They further C.R.P. NO.436/2001 2 contended that during the pendency of the suit, their lawyer died and subsequently they engaged a new lawyer who on perusing the documents found that there is no document creating the lease jointly in the name of the aforesaid persons. It was further found that V.K. Srinivasan, the 5th defendant took the property from one B.T. Nair, the original lessee from Emoor Bhagavathy Temple on 30.1.1950. It was also pleaded that the said G.P. Nair became a working partner along with the third defendant and one Bhavanadas. The mistake that occurred in the written statement dated 8.7.1994 was sought to be corrected by seeking amendment of the written statement for which I.A. No.3015 of 1999 was filed. The court below dismissed the application stating that the proposed amendment will take away the entire role of G.P. Nair admitted in the written statement of supplemental defendants 3 to 5 and incorporate new plea directly contradictory to the one set up in the earlier written statement. The court below further held that the proposed amendment will take away the admission made by the parties and the amendment, if allowed will take away the right already accrued to the respondents and will cause prejudice to respondents 2 and 3. 3. I have gone through the impugned order and I find that the principles of law regarding amendment of written statement was not C.R.P. NO.436/2001 3 applied by the court below in the right spirit. The purpose of the proposed amendment is to elaborate the defence and take additional pleas in support of their case . Even in a case where there is an indirect admission in the original pleading, it is open to the defendant to explain the same. It is also a settled principle that delay on its own is not a ground for rejection of the application for amending the pleadings. The application for amendment should be allowed unless serious prejudice would be caused to the other party and accrued rights taken away as a result of the amendment. It is true that admission made by the parties in their written statement admitting the right of the plaintiff cannot be allowed to be withdrawn by amendment of the written statement as that would result in causing grave injustice and irretrievable prejudice to the plaintiff or displace him completely. 4. It is fairly settled in law that the amendment of pleadings under Order VI Rule 17 C.P.C. is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to the condition that such amendment should not result in injustice to the other side. It is also settled law that the court should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable C.R.P. NO.436/2001 4 loss is caused to the other side. In the decision reported in Baldev Singh v. Manohar Singh (2006) 6 S.C.C. 498, the Supreme Court held as follows: "An amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case. Therefore inconsistent pleas can be raised by the defendants in the written statement although the same may not be permissible in the case of plaint." The Supreme Court in the above case, following the principle laid down in the decision reported in Estralla Rubber v. Dass Estate (P) Ltd.(2001)8 S.C.C. 97, further held that even if there were some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the C.R.P. NO.436/2001 5 written statement. The Supreme Court also held that wide power and unfettered discretion is conferred on the court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the court just and proper. 5. Keeping these principles in mind, I shall now consider whether the court below had erred in rejecting the application filed by the revision petitioners for amendment of the written statement. In the original written statement dated 8.7.1994, it was pleaded that the lease was in favour of G.P. Nair in his individual capacity and V.K. Srinivasan. On perusal of the documents, it was subsequently found that the above pleading was raised by a mistake and that the real fact was that V.K. Srinivasan, the 5th defendant took the property from one B.T. Nair, the original lessee from Emoor Bhagavathy Temple on 30.1.1950. According to the revision petitioners, the statement sought to be corrected and incorporated is not an admission regarding the right of the plaintiff. A contention mistakenly made was sought to be corrected and replacing a contention by amendment is permissible. Even inconsistent defences are permissible. That apart, adding a new ground of defence, or substituting or altering the defence is also permissible in the case of written statements. Adding a new ground of defence or substituting or altering a defence does C.R.P. NO.436/2001 6 not raise the same problem as adding, altering or substituting a new cause of action as in the case of plaint. 6. In the facts and circumstances of this case, the finding of the court below that the proposed amendment will take away the admission made by the parties is erroneous. There is no admission of the plaintiff's right as alleged. What is alleged is the devolution of his own right and it is sought to be substituted or altered by incorporating the correct factual position. I do not find any merit or reason for dismissing the application for amendment. Accordingly, the order under challenge is set aside. I.A. No.3015 of 1999 in O.S. No.117 of 1993 on the file of the Principal Sub Court, Palakkad shall stand allowed. The Civil Revision Petition is allowed as above. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.436/2001 7 HAURN-UL-RASHID, J. C.R.P. NO.436/2001 O R D E R 25th July, 2008