Amendment With Inconsistent Pleas Without Retracting Wilful Admission In Written Statement Permitted: Kerala High Court

The Kerala High Court has recently ruled that an amendment application containing inconsistent pleas with that of the original written statement can be submitted without withdrawing wilful admission raised in the statement and that such applications were bound to be admissible. Justice A. Badharudeen thereby set aside the order of the lower court which had dismissed an amendment application finding it to be inconsistent with the petitioner's earlier stand in his written statement. "The legal position emerges that is that denial of a promissory note in the written statement cannot be treated as an admission by any sense of the term. Denial of the execution of the promissory note could not be such a statement coming within the purview of S.17 of the Evidence Act. But it is well settled that inconsistent pleas can be taken by the defendants without withdrawing wilful admission raised in the written statement."The Court noted that in Ruhaila Beevi & Ors. v. Suvarna Satyan, this Court had allowed an amendment application after holding so and therefore held that in this case as well, the amendment application with inconsistent pleas and without retracting wilful admission in the written statement, was liable to be allowed. The petitioner was a defendant in a suit before a lower court, where he argued that his signature was forged by the plaintiff on a promissory note. Around four years later, he filed an amendment application raising inconsistent pleas to the effect that the promissory note produced by the plaintiff was one created in the signed blank stamp paper issued by him. The petitioner moved the High Court challenging the dismissal of his amendment application to his written statement through Advocates B. Krishnamani and Dhanuja M.S. However, Advocates Eldho Paul and Tessy Jose appearing for the respondents argued that the court below rightly dismissed the petition holding that the petitioner introduced a totally different case, taking a U-turn in deviation from the original written statement and, therefore, the amendments sought cannot be allowed. The Court noted that Order 8 Rule 9 of CPC provides conditions for pleadings subsequent to the written statement and that Order 6 Rule 17 provides for amendment of pleadings. "It is the primal duty of the court to decide as to whether the amendment sought for is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed."However, the proviso to Order 6 Rule 17 puts an embargo on the exercise of the court's jurisdiction. Thus, unless the jurisdictional fact as envisaged therein is found to be existing, the court would have no jurisdiction at all to allow the amendment of the plaint.Therefore, it was found that the legal position was clear on this point: the status of the defendant in the matter of raising plea is different from that of a plaintiff. The defendant can take inconsistent and alternative pleas in the written statement. However, at the same time, it is settled law that categorical and wilful admission made in the pleadings cannot be permitted to be withdrawn by way of amendment. The crucial question was whether denial of execution of promissory note is an admission as defined in Section 17 of the Evidence Act so that a defendant could not retract the same by amending the said admission.After examining the law laid down in Ruhaila Beevi & Ors. v. Suvarna Satyan, the Judge concluded that denial of promissory note in the written statement cannot be treated as an admission in any sense of the term while inconsistent pleas can be taken by the defendants without withdrawing wilful admission raised in the written statement. As such, it was held that the court below went wrong in dismissing the amendment application and the impugned order was accordingly set aside. While allowing the amendment, the petitioner was directed to incorporate the same within 7 days. Case Title: Anzar v. Sreedeviyamma & Anr.Citation: 2022 LiveLaw (Ker) 262Click Here To Read/Download The Order

Amendment With Inconsistent Pleas Without Retracting Wilful Admission In Written Statement Permitted: Kerala High Court

Hannah M Varghese

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