Amendments to pleadings may be allowed after trial commencement, provided due diligence is demonstrated.

JUDGMENT

The original petition has been filed against rejection of an application for amendment. The suit is one for money based on two invoices. Ext.P1 is the plaint. Even though in paragraph 1 of the plaint, the invoice numbers were typewritten as 44 and 372, it is seen that 44 has been manually corrected as 229. However, in the portion relating to the cause of action, it is stated specifically that the cause of action for the suit arose on 03.04.2014 and 30.04.2014 which are the dates relating to the invoice Nos.44 and 372. Ext.P2 is the written statement. In the written statement, the specific contention is that a sum of Rs.88,394/- was paid on 24.05.2014 and balance amounts were paid in cash. The written statement however does not specifically state any invoice numbers. Ext.P3 is the proof affidavit wherein the plaintiff has stated that amounts were due on invoice numbers 44 and 372 dated 03.04.2014 and 30.04.2014. The contention of the plaintiff is that the plaint was wrongly corrected by showing the invoice number as 229 instead of 44 and this fact was not known to the counsel till the case went for trial and PW1 was examined. It is in the above circumstances that the application for amendment was filed. The amendment was originally allowed by the trial court. The matter was taken up by the respondent before this Court in O.P.(C) No.624 of 2021. The original petition was allowed by Ext.P7 judgment and this Court remitted the matter to the trial court for reconsideration in the light of the interdiction in the proviso to Order 6 Rule 17 of the Code of Civil Procedure regarding the exercise of due diligence. Ext.P8 is the order which has been issued after the remand, rejecting the application for amendment. The court has stated that the plaintiff has not given proper reasons for not effecting the amendment prior to the commencement of the trial. The court referred to decisions of this Court inRevananna v. M.Anjanamma [2019 KHC 6168] andSasikala T.V. and another V. C.P.Joseph [2021(1) KHC 23] and held that an amendment application after the commencement of trial cannot be entertained. The order says that the plaintiff was given ample opportunity to effect amendment prior to the commencement of trial. However, there is nothing on record which show that such an opportunity was given. The court has also held that if the amendment is allowed, it will relate back to the date of suit and will change the nature of the suit. I do not find any proper consideration of the question of due diligence in the order, except for the observation that no proper reasons are stated.

2. The counsel for the petitioner submitted that the fact that there was a mistake is evident even going by the records. It is submitted that if the counsel was aware of the mistake in the plaint there was no reason why the proof affidavit was filed showing the invoice number as 44. It is submitted that the mistake in the plaint, if known, would not have resulted in such a proof affidavit. As far as the pleading regarding due diligence is concerned, in the affidavit in support of Ext.P4 application it has been stated thus:

“2. The above suit is filed for money for realizing an amount of Rs.2,45,000/- from the defendant on account of the two orders for chocolate bars, given by the defendant. I had supplied the chocolate bars as per invoices no:044 and 372 dated 03.04.2014 and 30.04.2014 for a total amount of Rs.1,76,788/-. But due to inadvertent mistake, invoice number was wrongly typed as 229 instead of invoice no: 044. The date of invoice was correctly shown as 03.04.2014. The same mistake had happened at the portion where the list of documents were shown in the las