Archana Devi vs Mini Philip & Ors.

Anil K. Narendran, J.

The appellant is the 5^th respondent in W.P.(C)No.4017 of 2018, which was one filed by the 1^st respondent herein, who is working as HSA (English) in St. Thomas Higher Secondary School, Kadambanad, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 21.08.2017 of the 1^st respondent State, to the extent it sanctioned the post of Higher Secondary School Teacher (Junior) English [HSST (Jr.) English] in the school managed by the 4^th respondent Manager, vide Column No.12 of Annexure 1 to the said Government order, and a further declaration that HSST (English) post is sanctionable in the said school, on account of the workload in English, for the academic years 2014-15 and 2015-16; a declaration that non-reckoning of three batches of English functioning in the school managed by the 4^th respondent, from the academic years 2014-15 and 2015-16, in the matter of sanctioning posts in Ext.P7 Government order, whereas reckoning all the batches functioning from the academic years 2014-15 and 2015-16 in respect of the subjects like Commerce, Economics and Computer Science, and sanctioning full time posts in those subjects in Ext.P7 Government order is discriminatory, arbitrary and violative of Articles 14 and 16(1) of the Constitution of India as well as violative of the statutory scheme of Chapter XXXII of the Kerala Education Rules, 1958 (KER); a writ of certiorari to quash Ext.P9 notification dated 28.08.2017 issued by the 4^th respondent Manager, in pursuance of Ext.P7 Government order dated 21.08.2017, to the extent it relates to HSST (Jr.) English post/vacancy, and quash all further proceedings pursuant to the said notification relating to HSST (Jr.) English post/vacancy, including the selection, appointment and approval, if any, of the 5^th respondent as HSST (Jr.) English; and a writ of mandamus commanding the respondents to sanction HSST (English) post in the school managed by the 4^th respondent, taking into account the workload in English during the academic years 2014-15 and 2015-16, pertaining to three batches – two in Commerce (standards XI and XII) and one in Science (standard XI), and further direct the 4^th respondent Manager to notify the said vacancy for in-service appointment, as per Chapter XXXII of KER, as a vacancy pertaining to the academic years 2014-15 and 2015-16, and further direct the respondents to ensure that the petitioner is the senior most HSA in the subjects in respect of which selection is already over to the post of HSST, pursuant to Ext.P7 Government order and Ext.P9 notification issued by the 4^th respondent Manager.

Along with the writ petition, the petitioner-the 1^st respondent herein has placed on record Exts.P1 to P12. The 5^th respondent-appellant herein, who was appointed as HSST Jr. English, filed a counter affidavit dated 15.05.2018, opposing the reliefs sought for in the writ petition, producing therewith Exts.R5(a) to R5(i). The 3^rd respondent Regional Director of Higher Secondary Education, the 4^th respondent herein, filed a counter affidavit dated 31.07.2018. The 5^th respondent filed an additional counter affidavit dated 04.03.2019, producing therewith Exts.R5(j) Government order dated 16.10.2018 and Ext.R5(k) consequential order dated 29.10.2018 passed by the Regional Director of Higher Secondary Education.

On 16.01.2026, the petitioner, 1^st respondent herein, filed I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, invoking the provisions under Rule 155 of the Rules of the High Court of Kerala, 1971, seeking an order to amend the writ petition, by incorporating additional statement of facts, grounds and reliefs. Such an amendment was sought for to challenge Ext.R5(j) order dated 16.10.2018 issued by the 1^st respondent State and Ext.R5(k) order dated 29.10.2018 issued by the 3^rd respondent Regional Director of Higher Secondary Education. Those orders, which were already on record as Exts.R5(j) and R5(k) in the additional counter affidavit filed by the 5^th respondent, are marked as Exts.P13 and P14 in the affidavit filed in support of I.A.No.1 of 2026.

In paragraph 3 of the affidavit filed in support of I.A.No.1 of 2026, the applicant-petitioner has pointed out that along with the additional counter affidavit filed in the writ petition, the 5^th respondent produced two documents related to her approval of appointment as HSST (Jr.) English and marked the same as Exts.R5(j) and R5(k). The petitioner was unaware of Exts.R5(j) and R5(k) till she approached the office of her previous counsel to know the position of the case during June, 2021. In paragraph 4 of the affidavit filed in support of I.A.No.1 of 2026, it is stated that, though a copy of the counter affidavit filed by the 5^th respondent was served on her previous counsel, neither a reply affidavit nor an application to amend the writ petition was filed initially due to the COVID-19 crisis. Thereafter, she engaged another counsel, who informed her in July, 2021, about the necessity to amend the writ petition challenging the orders passed by the 1^st respondent State and the 3^rd respondent Regional Director of Higher Secondary Education, and the amendment petition dated 04.09.2021 was filed. However, that petition seems to be misplaced. The petitioner, on verifying the status of the case, came to know that the application for amendment did not come up. There is no wilful delay or laches on the part of the petitioner in amending the writ petition, which ought to have been done in the year 2021. The delay in amending the writ petition happened due to the subsequent misplacement of the case file. A copy of the Government order dated 28.03.2009 issued by the 1^st respondent State approving B.Ed. degree awarded by Indira Gandhi National Open University (IGNOU) as an alternative qualification for appointment as teachers, is marked as Ext.P15.

In I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, the 5^th respondent, the appellant herein, filed a counter affidavit dated 07.02.2026, opposing the relief sought for. In the counter affidavit, it is contended that incorporating additional grounds and reliefs in a writ petition, which was admitted on 06.02.2018, by filing I.A.No.1 of 2026 on 16.01.2026, is not maintainable. Such an application cannot be entertained at this distance of time, without showing any reasonable explanation or cogent reason for the inordinate delay in filing the application for amendment. In the said application, the petitioner is seeking amendment of the writ petition by adding a prayer for setting aside Ext.R5(j) order dated 16.10.2018 of the 1^st respondent State and Ext.R5(k) order dated 29.10.2018 of the 3^rd respondent Regional Director of Higher Secondary Education, which are produced along with the additional counter affidavit filed by the 5^th respondent on 04.03.2019. The belated challenge made by way of an amendment of the writ petition, by incorporating additional statement of facts, grounds and reliefs, is liable to be thrown out on the ground of delay. Though a copy of the additional counter affidavit filed on 04.03.2019 was served on the learned counsel for the petitioner, no reply affidavit or application for amendment was filed till 16.01.2026. The explanation offered in the affidavit filed in support of the application for amendment is neither good nor valid for the inordinate delay in filing the application for amendment. The petitioner engaged another counsel in the year 2021. Though the said counsel informed the petitioner about the necessity to amend the writ petition, for challenging the orders passed and the application for amendment of the writ petition was filed on 04.09.2021, no reasonable explanation is offered as to the circumstances for the alleged misplacement of that application, which is not substantiated by any material or evidence in proof. Therefore, the 5^th respondent contended that the application for amendment is liable to be dismissed, on account of delay and laches.

After considering the rival contentions, the learned Single Judge, by the impugned order dated 05.03.2026, allowed I.A.No.1 of 2026, after rejecting the objections raised by the 5^th respondent. In the said order, the learned Single Judge found that merely allowing the amendment application no prejudice will be caused to the 5^th respondent, appellant herein, since Ext.P14 Government order itself states that the approval of the appointment will be subject to the result of W.P.(C)No.4017 of 2018. Paragraph 4 and also the last paragraph of the order dated 05.03.2026 of the learned Single Judge read thus;

Challenging the order dated 05.03.2026 of the learned Single Judge in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, the appellant-5^th respondent has filed this writ appeal, invoking the provisions under Section 5(i) of the Kerala High Court Act, 1958, by contending that, while passing the impugned order, the learned Single Judge failed to exercise the discretion to condone the delay in filing such an application for amendment, in a reasonable and objective manner. The learned Single Judge proceeded to condone the delay on the bald and sweeping averments made in the affidavit filed in support of I.A.No.1 of 2026. The reasoning of the learned Single Judge in the impugned order, for rejecting the objections raised by the 5^th respondent-appellant herein, is without addressing itself to the well settled legal position that proof of sufficient cause is a condition precedent for exercising the extraordinary discretion, in the matter of condoning inordinate and huge delay in seeking amendment of the pleadings and incorporation of additional reliefs, which has caused irreparable loss to the appellant. The appellant has placed reliance on the decision of the Apex Court in Bharat Singh v. State of Haryana [(1988) 4 SCC 534].

On 25.03.2026, when this writ appeal came up for admission, this Court heard detailed arguments of the learned Senior Counsel for the appellant-5^th respondent, as instructed by the learned instructing counsel. The learned Senior Counsel cited the decisions of the Apex Court in Sheo Raj Singh v. Union of India [(2023) 10 SCC 531], U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Lanka Venkateswarlu v. State of Andhra Pradesh [(2011) 4 SCC 363]. During the course of arguments, the learned counsel for the 1^st respondent-petitioner made available for the perusal of this Court the office copy of the interlocutory application filed in the year 2021, during Covid-19 pandemic period, seeking a similar relief to amend W.P.(C)No. 4017 of 2018, a reference to which has been made in paragraph 4 of the affidavit filed in support of I.A.No.1 of 2026. After arguing for some time, the learned counsel for the 1^st respondent-petitioner sought a short adjournment to address arguments with reference to the aforesaid decisions cited by the learned Senior Counsel for the appellant-5^th respondent. The learned counsel submitted that he is not furnished with a copy of the authorities cited by the learned Senior Counsel for the appellant-5^th respondent or a list of authorities.

As noticed in the order dated 25.03.2026, on a query made by this Court, the submission made by the learned instructing counsel for the learned Senior Counsel for the appellant-5^th respondent, was that neither the list of authorities nor a copy of the authorities cited by the learned Senior Counsel was served on the learned counsel for the 1^st respondent-petitioner or on the learned Senior Government Pleader for respondents 2 to 4. Therefore, in the order dated 25.03.2026, this Court noticed that such a course adopted by the learned instructing counsel for the learned Senior Counsel for the appellant-5^th respondent is highly inappropriate. Before citing the decisions, the learned instructing counsel ought to have served the list of authorities he proposes to cite to the learned counsel for the party respondents and also to the learned Senior Government Pleader for the State and official respondents. Rule 95 of the Rules of the High Court of Kerala, 1971, requires counsel to exchange the list of authorities.

On 30.03.2026, when this writ appeal came up for consideration, the 1^st respondent-petitioner filed I.A.No.1 of 2026 seeking an order to accept Annexure R1(a), which is stated to be a copy of the amendment petition dated 04.09.2021 filed in W.P.(C)No.4017 of 2018, by the petitioner seeking the very same reliefs sought for in I.A.No.1 of 2026 W.P.(C)No.4017 of 2018. Paragraph 2 of the affidavit dated 30.03.2026 filed in support of I.A.No.1 of 2026 in this writ appeal, which is one filed invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, 1908, reads thus;

The appellant, who is the 1^st respondent in I.A.No.1 of 2026, filed a counter affidavit dated 03.04.2026, opposing the reliefs sought for in the said interlocutory application, producing therewith Annexure I case status of W.P.(C)No.4017 of 2018, taken from Case Management System (CMS). Paragraphs 4 and 5 of the counter affidavit filed in I.A.No.1 of 2026 read thus;

On 12.06.2026, we heard further arguments of the learned Senior Counsel for the appellant-5^th respondent, the learned counsel for the 1^st respondent-petitioner and also the learned Senior Government Pleader for respondents 2 to 4.

The learned Senior Counsel for the appellant-5^th respondent contended that the reasoning of the learned Single Judge in the impugned order dated 05.03.2026 in W.P.(C)No.4017 of 2018 cannot be sustained in law and therefore, the said order warrants interference in this writ appeal. While passing the impugned order, the learned Single Judge failed to exercise the discretion to condone the delay in seeking an order to amend the writ petition, in a reasonable and objective manner. The objections raised by the appellant-5^th respondent in the counter affidavit filed in the application for amendment were not properly dealt with by the learned Single Judge. The rejection of the objections raised in the counter affidavit is without addressing the well settled legal position that proof of sufficient cause is a condition precedent for exercising discretion in the matter of condoning the inordinate and huge delay in seeking amendment of the writ petition. Therefore, the impugned order has caused irreparable injury to the appellant. Similarly, the reliefs sought for in I.A.No.1 of 2026 filed in this writ appeal, invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure to accept an additional document, cannot be allowed, for the objections stated in the counter affidavit dated 03.04.2026.

On the other hand, the learned counsel for the 1^st respondent-petitioner would contend that since the reasoning of the learned Single Judge in the impugned order dated 05.03.2026 in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018 is neither perverse nor patently illegal, no interference of this Court is warranted on the said order, in this writ appeal. I.A.No.1 of 2026, invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure was filed to place on record the office copy of the application for amendment dated 04.09.2021 stated to have been filed in W.P.(C)No.4017 of 2018, in the facts and circumstances stated in the affidavit filed in support of that application. The learned Senior Government Pleader for the State and the official respondents would submit that Exts.P14 and P15 orders were passed during the pendency of W.P.(C)No.4017 of 2018 and the pendency of that writ petition was noted in those orders.

The 1^st respondent-petitioner filed W.P.(C)No.4017 of 2018, invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order dated 21.08.2017 of the 1^st respondent State, to the extent it sanctioned the post of HSST (Jr.) English in the school managed by the 4^th respondent Manager, and a further declaration that HSST (English) post is sanctionable in the said school, on account of the workload in English, for the academic years 2014-15 and 2015-16. In the writ petition, which was one filed on 05.02.2018, the petitioner has also sought for other consequential reliefs, including a writ of certiorari to quash Ext.P9 notification dated 28.08.2017 issued by the 4^th respondent Manager, in pursuance of Ext.P7 Government order dated 21.08.2017, to the extent it relates to HSST (Jr.) English post/vacancy, and quash all further proceedings pursuant to the said notification relating to HSST (Jr.) English post/vacancy, including the selection, appointment and approval, if any, of the 5^th respondent as HSST (Jr.) English.

In W.P.(C)No.4017 of 2018, the 5^th respondent-appellant herein, who was appointed as HSST (Jr.) English with effect from 01.01.2018, filed a counter affidavit dated 15.05.2018, which was followed by an additional counter affidavit dated 04.03.2019. Along with the additional counter affidavit, the 5^th respondent placed on record Exts.R5(j) order dated 16.10.2018 of the 1^st respondent State and Ext.R5(k) consequential order dated 29.10.2018 of the 3^rd respondent Regional Director of Higher Secondary Education, regarding the approval of the appointment of the 5^th respondent as HSST (Jr.) English, with effect from 01.01.2018.

By Ext.R5(j) Government order dated 16.10.2018, the 3^rd respondent Regional Director of Higher Secondary Education was directed to approve the appointment of the 5^th respondent as HSST (Jr.) English in St. Thomas Higher Secondary School, Kadambanad, managed by the 4^th respondent Manager, if she possesses the prescribed qualification; however, subject to the result of the writ petition filed by the 1^st respondent herein, which is pending before this Court. In Ext.R5(j) order, it is stated that the mere pendency of the writ petition filed by the 1^st respondent herein claiming by-transfer appointment as HSST (English) is not a valid reason for delaying or denying approval for the appointment of the 5^th respondent as HSST (Jr.) English.

Based on the direction contained in Ext.R5(j) Government order, the 3^rd respondent Regional Director of Higher Secondary Education issued Ext.R5(k) order dated 29.10.2018, whereby approval has been granted to the appointment of the 5^th respondent as HSST (Jr.) English in St. Thomas Higher Secondary School, Kadambanad, managed by the 4^th respondent Manager, with effect from 01.01.2018, subject to the result of the writ petition filed by the 1^st respondent herein, which is pending before this Court. In Ext.R5(k) order, it is made clear that the approval granted to the appointment of the 5^th respondent is liable to be reviewed, if found necessary, based on the final judgment to be passed by this Court in W.P.(C)No.4017 of 2018 filed by the 1^st respondent herein.

On 16.01.2026, the petitioner, 1^st respondent herein, filed I.A.No.1 of 2026, invoking the provisions under Rule 155 of the Rules of the High Court of Kerala, 1971, seeking an order to amend W.P.(C)No.4017 of 2018, by incorporating additional statement of facts, grounds and reliefs, to challenge Ext.R5(j) Government order dated 16.10.2018 and Ext.R5(k) order dated 29.10.2018 issued by the 3^rd respondent Regional Director of Higher Secondary Education, which are marked as Exts.P13 and P14 in the affidavit filed in support of that interlocutory application.

In paragraphs 3 and 4 of the affidavit filed in support of I.A.No.1 of 2026, the petitioner, 1^st respondent herein, explained the delay in filing the application seeking an order to amend in W.P.(C)No.4017 of 2018, by incorporating additional statement of facts, grounds and reliefs, to challenge Ext.P13 Government order dated 16.10.2018 and Ext.P14 order dated 29.10.2018 issued by the 3^rd respondent Regional Director of Higher Secondary Education, which we have noticed hereinbefore at paragraph 4.

In the counter affidavit dated 07.02.2026 filed in I.A.No.1 of 2026, the 5^th respondent-appellant herein opposed the amendment of W.P.(C)No.4017 of 2018, as sought for in that interlocutory application, by contending that the belated challenge made against Ext.R5(j)/P13 Government order dated 16.10.2018 and Ext.R5(k)/P14 order dated 29.10.2018 issued by the 3^rd respondent Regional Director of Higher Secondary Education are liable to be thrown out on the ground of delay, which we have noticed hereinbefore at paragraph 5.

Chapter XI of the Rules of the High Court of Kerala, 1971, deals with proceedings under Articles 226, 227 and 228 of the Constitution of India. As per Rule 155, no ground shall be relied upon and no relief sought at the hearing except the grounds taken and reliefs sought in the original petition and the accompanying affidavit. As per the proviso to Rule 155, the Court may, at the hearing, allow the said petition and affidavit to be amended upon such terms as to costs or otherwise as the Court thinks fit.

In Bharat Singh v. State of Haryana [(1988) 4 SCC 534], a decision relied on by the appellant, the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure, 1908, and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.

In Narmada Bachao Andolan v. State of Madhya Pradesh [(2011) 7 SCC 639], a Three-Judge Bench of the Apex Court held that, it is a settled proposition of law that a party has to plead its case and produce/adduce sufficient evidence to substantiate the averments made in the petition and in case the pleadings are not complete the court is under no obligation to entertain the pleas. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned of the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that, as a rule, relief not founded on the pleadings should not be granted. Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases from being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties, the court should not decide the same, as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice.

Order VI Rule 17 of the Code of Civil Procedure, 1908 deals with amendment of pleadings. As per Order VI Rule 17, as amended by Section 16(2)(b) of the Civil Procedure Code (Amendment) Act, 2002, the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. As per the proviso to Rule 17, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In Sayed Hussain Hydrose Thangal v. K.J. Paul and others [2025 KHC OnLine 1348 : 2025:KER:98110], a Division Bench of this Court, in which one among us [Anil K. Narendran, J.] was a party, noticed that though the operative portion of Order VI Rule 17 of the Code of Civil Procedure, 1908 enables amendment at any stage of the proceedings, on such terms as may be just for determining the real questions in controversy between the parties, the proviso restricts its applicability to a stage before the commencement of trial, subject to the exception, when the party, in spite of due diligence, could not have raised the matter before the commencement of trial.

In Sayed Hussain Hydrose Thangal [2025 KHC OnLine 1348], the Division Bench held that the rider ‘on such terms as may be just’ in Order VI Rule 17 of the Code of Civil Procedure makes it imperative that the courts, before granting the prayer for amendment, should ensure that the proposed amendment does not cause prejudice or injustice to the opposite party. If the amendment is intended to cripple the opposite party by depriving him of a valid defence, then it would be unjust and hence impermissible. Likewise, a legal bar brought in the statute book to confer finality and conclusiveness of decisions as a matter of public policy, in the interest of the community at large, and to protect individual interest from multiplicity of litigations, cannot be circumvented by an amendment with a hidden objective of rendering that provision nugatory.

In Sayed Hussain Hydrose Thangal [2025 KHC OnLine 1348], the Division Bench held further that the law is settled that the courts, generally, as a rule, decline to allow amendments under Order VI Rule 17 of the Code of Civil Procedure, if a fresh suit on the amended claim would be barred by law on the date of the application. But the bar in the above regard shall be a factor to be taken into account in the exercise of discretion as to whether the amendment should be ordered. It does not affect the power of the court to order it, if that is required in the interests of justice.

In Balwant Singh v. Jagdish Singh [(2010) 8 SCC 685], a decision relied on by the learned Senior Counsel for the appellant, the Apex Court was dealing with a civil appeal in which the issue relates to the orders passed in I.A.No.1 of 2010, an interlocutory application filed invoking the provisions under Order XXII Rule 3 of the Code of Civil Procedure, seeking an order to bring the legal representatives of the deceased landlord as parties to the proceedings and I.A.No.2 of 2010, another application filed invoking the provisions under Order XXII Rule 9(2) and (3) of the Code read with Section 5 of the Limitation Act, 1963 to set aside the abatement, after condoning the delay of 778 days in filing the application to set aside abatement. The Apex Court noticed that since the delay in filing I.A.No.1 of 2010 is considerable, the onus to show that sufficient cause exists for condonation of delay lies upon the applicant.

In Balwant Singh [(2010) 8 SCC 685], the Apex Court noticed its earlier decision in P.K. Ramachandran v. State of Kerala [(1997) 7 SCC 556], wherein the challenge was against the order of the High Court condoning the delay of 565 days in filing the first appeal by the State, without recording any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay. In the context of the provisions under Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil Procedure, the Apex Court observed that the law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes, and the courts have no power to extend the period of limitation on equitable grounds. On the facts of the case at hand, the Apex Court found that the discretion exercised by the High Court while condoning the delay of 565 days in filing the first appeal was neither proper nor judicious.

In Balwant Singh [(2010) 8 SCC 685], the Apex Court held that the expression ‘sufficient cause’ in Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil Procedure implies the presence of legal and adequate reasons. The word ‘sufficient’ means adequate enough, as much as may be necessary, to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.

In Balwant Singh [(2010) 8 SCC 685], in the context of Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil Procedure, the Apex Court held that the party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record should be rejected unless sufficient cause is shown for condonation of delay. The Larger Benches as well as Two-Judge Benches of the Apex Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and in a routine manner. An applicant must essentially satisfy the above-stated ingredients; then alone the court would be inclined to condone the delay in filing such applications.

In Lanka Venkateswarlu v. State of A.P. [(2011) 4 SCC 363], another decision relied on by the learned Senior Counsel for the Appellant, in the context of Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil Procedure, the Apex Court held that the concepts such as ‘liberal approach’, ‘justice oriented approach’, ‘substantial justice’ cannot be employed to jettison the substantial law of limitation, especially in cases where the court concludes that there is no justification for the delay. Therefore, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties.

In Lanka Venkateswarlu [(2011) 4 SCC 363], the Apex Court was dealing with civil appeals in which the issue relates to the orders passed in an application filed invoking the provisions under Order XXII Rule 3 of the Code of Civil Procedure, seeking an order to bring the legal representatives of the deceased respondent as parties to the proceedings in Appeal No.8 of 1985, and other applications filed invoking the provisions under Order XXII Rule 9(2) and (3) and Order IX Rule 9 of the Code, and Section 5 of the Limitation Act, 1963 to set aside the abatement, after condoning the delay of 883 days in filing the application to set aside the dismissal order dated 06.02.1998.

In U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464], another decision relied on by the learned Senior Counsel for the appellant, the Apex Court held that laches and delay have been considered to be an important factor in the exercise of the discretionary relief under Article 226 of the Constitution of India. In the said decision, the question that came up for consideration before the Apex Court was that, when a person who is not vigilant about his rights and acquiesces with the situation, can his writ petition be heard after a couple of years on the ground that the same relief should be granted to him as was granted to a person similarly situated who was vigilant about his rights and challenged his retirement, which was said to be made on attaining the age of 58 years.

In Jaswant Singh [(2006) 11 SCC 464], the Apex Court was dealing with a case in which some of the employees of Uttar Pradesh Jal Nigam earlier filed writ petitions before the High Court of Judicature at Allahabad challenging their retirement on attaining the age of 58 years, whereas the State Government employees were allowed to continue up to the age of 60 years. Those writ petitions were dismissed, and the employees challenged the judgment of the High Court before the Apex Court by filing SLPs. Civil Appeal No.7840 of 2002 and connected matters arising out of those SLPs were disposed of by the Apex Court by the decision in Harwindra Kumar v. Chief Engineer, Karmik [(2005) 13 SCC 300], holding that so long as Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation of Government servants employed under the State of Uttar Pradesh shall apply to the employees of the Nigam. However, it would be open to the Nigam, with the previous approval of the State Government, to make a suitable amendment in Regulation 31 and alter the service conditions of employees of the Nigam, including their age of superannuation. If it is so done, the same shall be prospective. The Apex Court set aside the judgment of the High Court dismissing the writ petitions as well as the orders passed by the Nigam directing that the appellants of the civil appeals and the petitioners of the writ petitions would superannuate upon completion of the age of 58 years, and directed that in case the employees have been allowed to continue up to the age of 60 years, by virtue of some interim order, no recovery shall be made from them, but in case, however, they have not been allowed to continue after completing the age of 58 years, by virtue of erroneous decision taken by the Nigam for no fault of theirs, they would be entitled to payment of salary for the remaining period up to the age of 60 years, which must be paid to them within a period of three months from the date of receipt of copy of the judgment by the Nigam.

In Jaswant Singh [(2006) 11 SCC 464], the Apex Court noticed that during the pendency of Civil Appeal No.7840 of 2002 and connected matters, and after the disposal of the same by the decision in Harwindra Kumar [(2005) 13 SCC 300], a spate of writ petitions followed in the High Court by the employees of the Nigam who had retired long back. Some of the petitions were filed by the employees who retired on attaining the age of 58 years long back. However, some were lucky to get interim orders allowing them to continue in service. Several writ petitions were filed in the High Court in 2005, on various dates, after the decision in Harwindra Kumar [(2005) 13 SCC 300], and some between 2002 and 2005. All those writ petitions were disposed of in the light of the decision in Harwindra Kumar [(2005) 13 SCC 300], and relief was given to them for continuing in service up to the age of 60 years. Various judgments of the High Court from time to time in those writ petitions were under challenge before the Apex Court in SLPs filed by the Nigam.

In Jaswant Singh [(2006) 11 SCC 464], the question considered by the Apex Court was whether the employees who did not wake up to challenge their retirement and accepted the same, collected their post-retirement benefits, can be given the relief in the light of the subsequent decision in Harwindra Kumar [(2005) 13 SCC 300]. After taking note of the law on the point and the statement of law summarised in Halsbury's Laws of England, para 911, page 395, the Apex Court held that the respondents are guilty since they have acquiesced by accepting the retirement and did not challenge the same in time. If they had been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Therefore, the Apex Court was not inclined to grant any relief to the persons who have approached the court after their retirement. It was ordered that only those persons who have filed the writ petitions, when they were in service, or who have obtained an interim order for their retirement, should be allowed to stand to benefit and not others.

In Mool Chandra v. Union of India [(2025) 1 SCC 625], another decision relied on by the learned Senior Counsel for the appellant, the Apex Court noticed its earlier decision in Commissioner, Nagar Parishad, Bhilwara v. Labour Court, Bhilwara [(2009) 3 SCC 525] that, while deciding an application for condonation of delay under Section 5 of the Limitation Act, the High Court ought not to have gone into the merits of the appeal, and would have only seen whether the appellant has shown sufficient cause for condoning the delay in filing the appeal before it.

In Mool Chandra [(2025) 1 SCC 625], the Apex Court held that if negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant, and cause shown is sufficient, then both the Tribunal and the High Court were in error in not adopting a ‘liberal approach’ or ‘justice-oriented approach’ to condone the delay. In the said decision, the Apex Court noticed paragraph 6 of its earlier decision in Municipal Council, Ahmednagar v. Shah Hyder Beig [(2000) 2 SCC 48], which reads thus;

In Shivamma (Dead) by Lrs. v. Karnataka Housing Board and others [2025 SCC OnLine SC 1969], another decision relied on by the learned Senior Counsel for the appellant, the Apex Court was dealing with a civil appeal in which the issue relates to the orders passed by the High Court of Karnataka in an application filed under Section 5 of the Limitation Act, whereby the High Court condoned the delay of 3966 days in preferring the second appeal against the judgment and order passed by the First Appellate Court, arising from the judgment and decree passed by the Trial Court.

In Shivamma (Dead) by Lrs. [2025 SCC OnLine SC 1969], the Apex Court held that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. The Court should not keep the ‘Sword of Damocles’ hanging over the head of the respondent for an indefinite period of time to be determined at the whims and fancies of the appellants. The Apex Court set aside the impugned order of the High Court, on a finding that the High Court has erroneously condoned a massive delay of 3966 days on account of certain lapses at the administrative levels and of there being no follow-ups in the proceedings, along with finding certain merits in the case of the respondent No.1 against the maintainability of the suit of the appellant, and that of the relief molded by the First Appellate Court. Such grounds are nowhere near being ‘sufficient cause’ as per Section 5 of the Limitation Act.

As held by a Division Bench of this Court in Sayed Hussain Hydrose Thangal [2025 KHC OnLine 1348], the provisions of Order VI Rule 17 of the Code of Civil Procedure enable amendment at any stage of the proceedings, on such terms as may be just for determining the real questions in controversy between the parties. However, the proviso to Rule 17 restricts its applicability to a stage before the commencement of trial, subject to the exception, when the party, in spite of due diligence, could not have raised the matter before the commencement of trial. The rider ‘on such terms as may be just’ in Order VI Rule 17 of the Code makes it imperative that the courts, before granting the prayer for amendment, should ensure that the proposed amendment does not cause prejudice or injustice to the opposite party. If the amendment is intended to cripple the opposite party by depriving him of a valid defence, then it would be unjust and hence impermissible. The law is settled that, generally as a rule, the courts decline to allow amendments under Order VI Rule 17 of the Code, if a fresh suit on the amended claim would be barred by law on the date of the application. But the bar in the above regard shall be a factor to be taken into account in the exercise of discretion as to whether the amendment should be ordered. It does not affect the power of the court to order it, if that is required in the interests of justice.

As held by the Apex Court in Balwant Singh [(2010) 8 SCC 685], the expression ‘sufficient cause’ in Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code of Civil Procedure implies the presence of legal and adequate reasons. The word ‘sufficient’ means adequate, as much as may be necessary, to answer the purpose intended, which embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the delay as an excusable one. As held by the Apex Court in Lanka Venkateswarlu [(2011) 4 SCC 363], the concepts such as ‘liberal approach’, ‘justice-oriented approach’, ‘substantial justice’ cannot be employed to jettison the substantial law of limitation, as contained in Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code, especially in cases where the court concludes that there is no justification for the delay.

A reading of the provisions under Order VI Rule 17 of the Code of Civil Procedure as well as the provisions under Rule 155 of the Rules of the High Court of Kerala, which we have referred to hereinbefore at paragraphs 25 and 22 respectively, would make it explicitly clear that the concept of ‘sufficient cause’ as contained in Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code is a consideration alien to Order VI Rule 17 of the Code as well as Rule 155 of the Rules of the High Court of Kerala. In cases in which amendment of pleadings is governed by the provisions under Order VI Rule 17 of the Code, the proviso to Rule 17 restricts its applicability to a stage before the commencement of trial, subject to the exception contained therein, i.e., when the party, in spite of due diligence, could not have raised the matter before the commencement of trial. Similarly, the proviso to Rule 155 of the Rules of the High Court of Kerala enables this Court, at the hearing, to allow an application for amendment in an original petition or writ petition filed under Articles 226, Article 227 or Article 228 of the Constitution of India and the accompanying affidavit to raise new grounds or reliefs, upon such terms as to costs or otherwise, as the Court thinks fit.

Section 141 of the Code of Civil Procedure deals with miscellaneous proceedings. As per Section 141, the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. As per the Explanation to Section 141, inserted by the Code of Civil Procedure (Amendment) Act, 1976, with effect from 01.02.1977, in Section 141, the expression ‘proceedings’ includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.

In Puran Singh v. State of Punjab [(1996) 2 SCC 205], the Apex Court noticed that, on a plain reading, Section 141 of the Code of Civil Procedure provides that the procedure provided in the said Code in regard to suits shall be followed ‘as far as it can be made applicable, in all proceedings’. In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The Explanation which was added is more or less in the nature of a proviso, saying that the expression ‘proceedings’ shall not include any proceeding under Article 226 of the Constitution of India. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution.

In Puran Singh [(1996) 2 SCC 205], the Apex Court held that, when the Constitution of India has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code of Civil Procedure. Of course, on many questions, the provisions and procedures prescribed under the Code can be taken as a guide when exercising the power to grant relief to persons who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.

Though, as per the Explanation to Section 141 of the Code of Civil Procedure, inserted by the Code of Civil Procedure (Amendment) Act, 1976, the expression ‘proceedings’ in Section 141 does not include any proceeding under Article 226 of the Constitution, in view of the observation made by the Apex Court in paragraph 11 of the decision in Puran Singh v. State of Punjab [(1996) 2 SCC 205], on many questions, the provisions and procedures prescribed under the Code, which are based on well-recognised principles for exercise of discretionary power, and are reasonable and rational, can be taken as a guide when exercising the power to grant relief to persons who have invoked the jurisdiction of the High Court. In that view of the matter, the procedure and the principles for exercise of discretionary power under Order VI Rule 17 of the Code can be taken as a guide when the High Court exercises the power to grant relief to persons who have invoked the provisions under Rule 155 of the Rules of High Court of Kerala seeking an order for amending an original petition or writ petition filed under Articles 226, Article 227 or Article 228 of the Constitution of India and the accompanying affidavit to raise new grounds or reliefs.

In the instant case, as already noticed hereinbefore, during the pendency of W.P.(C)No.4017 of 2018, which was one filed on 05.02.2018, the 1^st respondent State by Ext.R5(j) order dated 16.10.2018, directed the 3^rd respondent Regional Director of Higher Secondary Education to approve the appointment of the 5^th respondent as HSST (Jr.) English in St. Thomas Higher Secondary School, Kadambanad, managed by the 4^th respondent Manager, if she possesses the prescribed qualification; however, subject to the result of the said writ petition. Based on the direction contained in Ext.R5(j) Government order, the 3^rd respondent Regional Director of Higher Secondary Education issued Ext.R5(k) order dated 29.10.2018, whereby approval has been granted to the appointment of the 5^th respondent as HSST (Jr.) English, with effect from 01.01.2018, subject to the result of the said writ petition.

In Ext.R5(j) Government order, it is stated that the mere pendency of W.P.(C)No.4017 of 2018 filed by the 1^st respondent herein claiming by-transfer appointment as HSST (English) is not a valid reason for delaying or denying approval for the appointment of the 5^th respondent as HSST (Jr.) English. In Ext.R5(k) consequential order of the 3^rd respondent Regional Director of Higher Secondary Education, it is made clear that the approval granted to the appointment of the 5^th respondent is liable to be reviewed, if found necessary, based on the final judgment to be passed by this Court in the said writ petition.

The specific stand taken by the petitioner, the 1^st respondent herein, in the affidavit filed in support of I.A.No.1 of 2026, i.e., the application for amendment filed in W.P.(C)No. 4017 of 2018 is that, when there is a reference to the said writ petition in Ext.R5(j) order dated 16.10.2018, the 1^st respondent State ought to have issued notice to her before passing such an order. Similarly, before issuing Ext.R5(k) order dated 29.10.2018 of the 3^rd respondent Regional Director of Higher Secondary Education no notice was issued to her. We notice that a copy of Exts.R5(j) and R5(k) orders are not even marked to the petitioner.

Though, the 5^th respondent filed an additional counter affidavit dated 04.03.2019 in W.P.(C)No.4017 of 2018, producing therewith Exts.R5(j) Government order dated 16.10.2018 and Ext.R5(k) consequential order dated 29.10.2018 passed by the 3^rd respondent Regional Director of Higher Secondary Education, the petitioner filed I.A.No.1 of 2026, only on 16.01.2026, invoking the provisions under Rule 155 of the Rules of the High Court of Kerala, seeking an order to amend the said writ petition, by incorporating additional statement of facts, grounds and reliefs, in order to challenge Exts.R5(j) and R5(k) orders, which are marked as Exts.P13 and P14 in the affidavit filed in support of that interlocutory application.

The delay in filing such an application seeking an order to amend W.P.(C)No.4017 of 2018 has been explained in paragraphs 3 and 4 of the affidavit filed by the petitioner in support of I.A.No.1 of 2026, which we have noticed hereinbefore at paragraph 4. The objections raised in the counter affidavit dated 07.02.2026 filed by the 5^th respondent in I.A.No.1 of 2026, contending that a belated challenge made against Exts.R5(j)/ P13 and R5(k)/P14 orders is liable to be thrown out on the ground of delay, are noticed hereinbefore at paragraph 5.

As already held hereinbefore at paragraph 34, the concept of ‘sufficient cause’ as contained in Section 5 of the Limitation Act and Order XXII Rule 9(2) of the Code is a consideration alien to Order VI Rule 17 of the Code as well as Rule 155 of the Rules of the High Court of Kerala. The proviso to Rule 155 of the Rules of the High Court of Kerala enables this Court, at the hearing, to allow an application for amendment in a writ petition filed under Articles 226 of the Constitution of India and the accompanying affidavit to raise new grounds or reliefs, upon such terms as to costs or otherwise, as the Court thinks fit. As already held hereinbefore at paragraph 37, in view of the observation made by the Apex Court in paragraph 11 of the decision in Puran Singh [(1996) 2 SCC 205], the procedure and the principles for exercise of discretionary power under Order VI Rule 17 of the Code can be taken as a guide when the High Court exercises the power to grant relief to persons who have invoked the provisions under Rule 155 of the Rules of High Court of Kerala seeking an order to amend an original petition or writ petition filed under Articles 226, Article 227 or Article 228 of the Constitution of India and the accompanying affidavit to raise new grounds or reliefs.

In the instant case, as already noticed hereinbefore, one of the reliefs sought for in W.P.(C)No.4017 of 2018 is a writ of certiorari to quash Ext.P9 notification dated 28.08.2017 issued by the 4^th respondent Manager, in pursuance of Ext.P7 Government order dated 21.08.2017, to the extent it relates to HSST (Jr.) English post/vacancy, and quash all further proceedings pursuant to the said notification relating to HSST (Jr.) English post/vacancy, including the selection, appointment and approval, if any, of the 5^th respondent as HSST (Jr.) English. Moreover, the approval for the appointment of the 5^th respondent granted in Ext.R5(j)/P13 Government order dated 16.10.2018 and Ext.R5(k)/P14 order dated 29.10.2018 of the 3^rd respondent Regional Director of Higher Secondary Education, is subject to the result of W.P.(C)No.4017 of 2018. In Ext.R5(k)/P14 order, it is made clear that the approval granted to that appointment is liable to be reviewed, if found necessary, based on the final judgment to be passed by this Court in the said writ petition.

The application for amendment, i.e., I.A.No.1 of 2026, is one filed by the petitioner during the pendency of W.P.(C)No. 4017 of 2018. When such an amendment is permissible at any stage of the proceedings in W.P.(C)No.4017 of 2018, the amendment sought for in I.A.No.1 of 2026 cannot be turned down on the ground that the petitioner failed to substantiate her case regarding the filing of an earlier application for amendment, in the year 2021, especially when all further proceedings pursuant to Ext.P9 notification dated 28.08.2017 issued by the 4^th respondent Manager, relating to HSST (Jr.) English post/vacancy, including the selection, appointment and approval, if any, of the 5^th respondent as HSST (Jr.) English, is already under challenge in W.P.(C)No. 4017 of 2018, by seeking a writ of certiorari. In addition to that, approval for the appointment of the 5^th respondent granted by Exts.R5(j)/P13 and R5(k)/P14 orders is subject to the result of W.P.(C)No.4017 of 2018. In that view of the matter, it has become unnecessary for this Court to go into the rival contentions in relation to I.A.No.1 of 2026 filed by the 1^st respondent-petitioner in this writ appeal, invoking the provisions under Order XLI Rule 27 of the Code of Civil Procedure, to place on record the office copy of the application for amendment dated 04.09.2021 stated to have been filed in W.P.(C)No.4017 of 2018. Therefore, I.A.No.1 of 2026 filed by the 1^st respondent-petitioner in this writ appeal for the said purpose is closed.

In the impugned order dated 05.03.2026 in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, the learned Single Judge noticed that merely allowing the amendment application no prejudice would be caused to the 5^th respondent since Ext.P14 order itself states that the approval of the appointment is subject to the result of the said writ petition.

When Ext.P9 notification dated 28.08.2017 issued by the 4^th respondent Manager, in pursuance of Ext.P7 Government order dated 21.08.2017, to the extent it relates to HSST (Jr.) English post/vacancy, and all further proceedings pursuant to the said notification relating to HSST (Jr.) English post/vacancy, including the selection, appointment and approval, if any, of the 5^th respondent as HSST (Jr.) English, is already under challenge in W.P.(C)No.4017 of 2018, by seeking a writ of certiorari, and approval for the appointment of the 5^th respondent granted by Ext.R5(j)/P13 Government order dated 16.10.2018 and Ext. R5(k)/P14 order dated 29.10.2018 of the 3^rd respondent Regional Director of Higher Secondary Education is subject to the result of the said writ petition; the amendments as sought for in I.A.No.1 of 2026, for determining the real questions in controversy between the parties, which do not cause any prejudice or injustice to the 5^th respondent cannot be turned down as a belated challenge made against those orders. Therefore, none of the contentions in the counter affidavit dated 07.02.2026 filed by the 5^th respondent in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, which we have noticed hereinbefore at paragraph 5, raise a valid challenge against the amendment sought for in I.A.No.1 of 2026.

In the above circumstances, we find no grounds to interfere with the impugned order dated 05.03.2026 of the learned Single Judge in I.A.No.1 of 2026 in W.P.(C)No.4017 of 2018, whereby the learned Single Judge allowed the said application filed by the 1^st respondent-petitioner seeking amendment of the pleadings in W.P.(C)No.4017 of 2018, as stated in that interlocutory application.

In the result, this writ appeal fails, and the same is accordingly dismissed.

Annexure R1(a) COPY OF THE AMENDMENT PETITION DATED 04.09.2021 IN WP(C)NO4017/2018 EXCLUDING THE EXHIBITS

ANNEXURE I A TRUE COPY OF THE CASE STATUS OF W.P(C) NO. 4017 OF 2018 RETRIEVED FROM THE OFFICIAL WEBSITE OF HIGH COURT OF KERALA.