19 Oct 2021 11:15 AM GMT
The Kerala High Court recently held that a categorical or wilful admission made in the pleadings cannot be permitted to be withdrawn by way of amendment if such withdrawal would amount to totally displacing the case of the plaintiff and would cause him irreparable prejudice.Justice Badharudheen while dismissing a petition remarked:"...if the amendment sought for is to strike down a categorical...
The Kerala High Court recently held that a categorical or wilful admission made in the pleadings cannot be permitted to be withdrawn by way of amendment if such withdrawal would amount to totally displacing the case of the plaintiff and would cause him irreparable prejudice.
Justice Badharudheen while dismissing a petition remarked:
"...if the amendment sought for is to strike down a categorical or wilful admission in the written statement, the same cannot be allowed to be withdrawn by way of amendment and such an amendment would have the effect of displacing the plaintiff's case and cause irretrievable prejudice to the plaintiff. However, the facts of each case to be evaluated to decide whether the amendment sought for is one to strike down a categorical or wilful admission."
The Court also looked into the aspect of when trial commences for the purpose of the proviso to Order 6 Rule 17 of CPC in the judgment.
Accordingly, it was decided as such:
(a) Trial commences when the first witness in the case was examined in chief directly by the Court.
(b) In a case chief affidavit is filed in lieu of a chief examination, trial commences when the witness who filed a chief affidavit in lieu of chief examination offers himself for cross-examination by the other side at the witness box and when the cross-examination begins.
(c) Trial commences in a case when the plaintiff is not adducing any oral evidence, the date on which the plaintiff or his counsel either tenders the documents in evidence following the procedure or the date on which the plaintiff or his counsel submits that no oral or documentary evidence to be adduced on the part of the plaintiff.
(d) All other steps prior to stages (a) to (c) to be treated as proceedings preliminary to commencement of trial.
The petitioner herein moved the Court aggrieved by the order of the Munsiff allowing an amendment filed by the respondent herein in a suit before it.
The respondent had filed an application before the Munsiff Court to amend the written statement on asserting that some mistakes crept therein due to oversight.
The petition objected to the same contending that it was an attempt to strike down an admission willfully made and that the same is impermissible. Further, it was argued that the amendment application was filed after commencement of trial, that too, at a belated stage.
The grievance of the petitioner is that the Munsiff allowed the petition on the finding that the amendment would never cause any prejudice to the petitioner and further holding that the averments in the written statement specifically mentioned that the plaint schedule properties are within the possession and enjoyment of the respondent.
However, upon finding that the order did not require any interference in any manner, the petition was dismissed, thereby confirming the order of the court below.
Advocate P.C. Haridas appeared for the petitioner while Advocate Unnikrishnan V. Alapatt represented the respondent in the matter.
Case Title: P.M. Salim v. Vasudevan Namboothiri
Click Here To Read The Order