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Judgment
A. Badharudeen, J
The defendant in O.S.No.26/2015 on the file of the Sub Court, Karunagappally, is the petitioner herein and she filed this Original Petition under the
Article 227 of the Constitution of India, challenging dismissal of I.A.NO.4/2022 by the learned Sub Judge, Karunagappally as per order dated
13.01.2022.
Heard the learned counsel for the petitioner on admission.
It is submitted by the learned counsel for the petitioner that one amendment sought for is only to correct a word and other amendment sought for is
in regard to the incorporation of the following in the written statement.
As the continuation of the second paragraph, add “defendant borrowed an amount of rupees one lakh on 11-05-2013 by cheque No.358279 rupees, one lakh
on 12-10-2013 by Cheque No. 865467 and an amount rupees four lakhs on 17-12-2013 by cheque No.865469 of SBT Nediavila. Defendant returned all these
amounts by cash with interest at the rate of 48%. Plaintiff regularly visited defendant's residence and collected the amount with interest. There is no balance is
pending. The transaction was fully and finally settled on 15th April 2014 by paying Rs. 35000/-. On that day plaintiff along with nearby resident one
Gopakumar.G visited defendant's house and received the said amount. Also the plaintiff has several other cases for realization of money pending in other courts
wherein also the documents are Negotiable instruments which are fabricated and altered by her in typographic nature. The cheque furnished by the plaintiff in
the Hon'ble Court is materially altered and fabricated for illegal gain.
According to the learned counsel for the petitioner, though no reasons stated in the affidavit in support of this petition regarding compliance of
proviso to Order 6 Rule 17, it is submitted by the learned counsel for the petitioner that since trial not commenced in this matter, compliance of Order
6 Rule 17 is not necessary.
In this context, it is necessary to address the history of the case. Originally this case was tried and the suit was decreed as per decree dated
30.07.2016. Thereafter, this Court as per order in R.F.A No.658/2016 dated 21.10.2021 set aside the decree and judgment and remanded the matter.
In paragraph No.9 of the judgment, the purpose of remand has been categorically stated. The same is extracted as under:
The decree and judgment of the court below hence cannot be sustained and liable to be set aside. I do so. The case is remanded back to the trial court so as to
afford an opportunity to cross examine the plaintiff on the additional proof affidavit and documents Exts.A3 to A5.
Going by the extracted portion, it is discernible that the case is remanded back to the trial court so as to afford an opportunity to cross-examine the
plaintiff on the additional proof affidavit and documents Exts.A3 to A5 that would go to show that the cross-examination effected based on the original
proof affidavit filed by the plaintiff has been confirmed by the order of remand. In such a case, when an amendment application if moved with a view
to introduce a new plea of discharge, which was known to the defendant at the time of filing the original written statement, should have to comply the
proviso to Order 6 Rule 17 of CPC and failure to do so, would definitely a reason for dismissing the petition.
Though the learned Sub Judge, in so many words stated those things, the order of the learned Sub Judge would go to show that an amendment
application filed at a belated stage after remanding the matter, cannot be allowed.
I  cannot  find  any  perversity  or arbitrariness in this case to have interference with the order. Therefore, this original petition is
liable to be dismissed even without admission.
Accordingly, this Original Petition is dismissed.
It is made clear that the word sought to be corrected 'her' instead of 'here' is of no serious consequence, as the sentence, if read the meaning, to be
understood is that of the word 'her' and not 'here'.