1. 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.

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.

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 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 o