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Trial commences when the first witness in the case was examined in chief directly by the Court: Kerala High Court

The Kerala High Court has upheld that the trial commences when the first witness in the case was examined in chief directly by the Court through THE HONOURABLE MR. JUSTICE A. BADHARUDEEN in the case of P.M. Salim v. Vasudevan Namboothiri (OP(C) NO. 1621 OF 2018 )

FACTS OF THE CASE:

The first defendant/first respondent sought to alter the written statement, claiming that some errors had crept in due to oversight. According to the first defendant/petitioner, those errors had to be addressed in order to preserve the defendants’ interests. Plaintiff submitted an objection to this petition, arguing that the first defendant’s attempt to strike out an admission made willfully is unlawful. Furthermore, the amendment application was filed after the trial had begun, albeit at a late stage.

However, the learned Munsiff granted the petition after concluding that the amendment would never cause the plaintiff any prejudice and that the averments in the 7th paragraph of the written statement specifically stated that the plaint schedule properties are in the possession and enjoyment of the 1st defendant.

The learned counsel for the petitioner/plaintiff submitted that though order 6 Rule 17 of C.P.C permits amendment of pleadings, that cannot be used to deny an admitted fact that favors the plaintiff. 

To counter this claim, the learned counsel for the respondents/defendants argued that the amendment application was not filed after a long delay and after the trial had begun. According to the learned counsel for the respondents, the motion was filed before the witnesses were examined and before the issue was scheduled for trial. It is also claimed that various errors were made while creating the written statement, which were only discovered by the first defendant in 2018 when the written statement was read before the start of the trial. It was further argued that the order does not require any interference as all aspects were considered.

JUDGEMENT:

The Court observed that a mere reading of proviso to Order 6 Rule 17 makes it clear that no application for amendment shall be allowed after the trial has commenced unless the court concludes that, despite due diligence, the party could not have raised the matter before the commencement of the trial.

Furthermore, it was held that if filing of documents contemplated under Order 13 Rule 1, Order 7 Rule 14 and Order 8 Rule 1A of CPC is to be treated as the commencement of trial, the same would lead to confusion in practical application. Therefore, by filing documents, it could not be held that the trial has commenced.

The Court defined the term `commencement of trial’ as required to be interpreted to avoid such confusion and to give an easy understanding for practical application. Thus it was held that:

(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 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.

In addition to this, it was held that a categorical or willful admission made in the pleadings (plaint and written statement) could not be permitted to be withdrawn by way of amendment if it would displace the case of the plaintiff and would cause him irreparable prejudice. The Court stated that it could allow an amendment if the court believes that allowing an amendment shall subserve the ultimate cause of justice. Therefore, this challenge was of no avail to the petitioner. 

Thus, it was concluded that the learned Munsiff rightly allowed the amendment sought, which does not require any interference. Therefore, the Original Petition was dismissed. 

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JUDGEMENT REVIEWED BY REETI SHETTY

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