The judgment establishes the principle that while clarificatory amendments to pleadings may be allowed, attempts to withdraw admissions and set forth an entirely new case through amendments are impermissible.

JUDGMENT :

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].

4. Sri.K.M.Firoz, learned Counsel for the respondent contended that the amendments, if allowed, would change the nature and scope of the suit. According to the learned Counsel, the amendments are not clarificatory or explanatory in nature, but are intended to set up a case, hitherto not pleaded. To buttress the argument, particular emphasis was laid on the portions in the amendment where the percentage of share is sought to be changed from 22.5% to 32.5%, payment in the name of the power of attorney of the defendant changed to payment to the defendant and the term 'adjustment' replaced with 'payment'. It is pointed out that the application for amendment was filed after the respondent had filed his affidavit in lieu of chief examination and trial commenced from the date on which the affidavit in lieu of chief examination was filed. There being no whisper in the amendment application about the due diligence factor, the trial court was fully justified in dismissing the amendment application. In support of his contentions, learned Counsel relied on the decisions in Modi Spinning and Weaving Mills Co.Ltd v. M/s.Ladha Ram and Company [AIR 1977 SC 680], Heera Lal v. Kalyan Mal and others [(1998) 1 SCC 278] and Sasikala T.V v. C.P.Joseph [2021 (1) KHC 23], Usha Balashaheb Swami and others v. Kiran Appaso Swami and others [(2007) (5) SCC 602].

5. In the impugned order, after referring to the relevant portions of the written statement and the amendment application, the trial court came to the conclusion that certain material admissions are sought to be withdrawn and new facts introduced. The relevant portions of the written statement and the amendment application has been extracted in the impugned order. Having heard the learned Counsel and having scrutinised the extracted portion in the order, I find no