Point of Law: Amendment of Written Statement - Admissions made in the pleadings cannot be permitted to be withdrawn by amendment, but application may be made for explaining the clarification in the admissions.

JUDGMENT :

This Original Petition (Civil) has been filed by the sole plaintiff in O.S No.92 of 2013 of the Munsiff Court, Pala arraying defendants 1 to 4 therein as respondents herein.

2. Ext.P5 order, viz. Order in I.A.809/2018 dated 23.06.2018 is under challenge herein.

3. Brief facts :

The 1st defendant/1st respondent herein filed I.A.No.809/2018 in O.S No.92/2013 to amend the written statement on asserting that some mistakes crept therein due to oversight. According to the 1st defendant/petitioner those mistakes were required to be corrected to protect the interest of the defendants.

4. Plaintiff filed objection to this petition mainly contending that the 1st defendant's attempt was to strike down an admission wilfully made and the same is impermissible. Further, the amendment application was filed after commencement of trial, that too, at a belated stage.

5. However, the learned Munsiff allowed the petition on the finding that the amendment would never cause any prejudice to the plaintiff and further holding that the averments in the 7th paragraph of the written statement specifically mentioned that the plaint schedule properties are within the possession and enjoyment of the 1st defendant.

6. As regards correctness of Ext.P5 order, the learned counsel for the petitioner/plaintiff would submit that though order 6 Rule 17 of C.P.C permits amendment of pleadings, that cannot be used to deny an admitted fact which favours the plaintiff. The learned counsel submitted further that amendment application was filed at a belated stage on 25.3.2018 after filing the written statement on 25.07.2013. Another challenge raised is that amendment petition was filed after starting trial and amendment sought for after starting trial cannot be allowed mechanically since proviso to Order 6 Rule 17 mandates that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.

7. Thirdly it is submitted that the affidavit in support of I.A.No.809 of 2018 Ext.P3 herein is vague and no details warranting amendment was narrated therein. On the above ground, the learned counsel for the petitioner submitted that Ext.P5 suffers from illegality and is liable to be set aside. The learned counsel for the petitioner/plaintiff placed decision reported in [2021 (1) KLT 767], Sasikala v. Joseph to contend that when the application for amendment filed by a party to the suit is after commencement of trial, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to Order VI Rule 17 of the Code whether or not the opposite party has raised any specific objection, before allowing the application, it is the duty of the court to satisfy itself itself that the applicant, inspite of due diligence, could not have filed the application at an earlier stage.

8. Disspelling this argument the learned counsel for the respondents/defendants would contend that amendment application was not filed after long delay and after starting trial. According to the learned counsel for the respondents, the application was filed before examination of the witnesses and when the matter was listed for trial. It is submitted further that some mistakes crept while drafting the written statement and the same came to the notice of the 1st defendant only during 2018 when the written statement was read before start of trial. Immediately thereafter Ext.P3 application was filed and necessary averments highlighting the mistakes occurred due to oversight had been narrated in Ext.P3. He submitted further that going by the preceding and proceeding paragraphs of the written statement the 1st defendant never admitted any right to the plaintiff in respect of the plaint schedule property and the 1st defendant asserted absolute possession in his favour throughout. It is submitted further that therefore the averment in para