JUDGMENT
Patnaik, J.
1. Defendant in O.S. No. 1 of 1994 on the file of this Court is the appellant. By the impugned order in C.M.P. No. 1229 of 1995, the learned single Judge rejected the prayer of the appellant to amend his pleadings in the written statement by adding two more paragraphs. The learned Judge has stated that the written statement seems to contain averments that are sought to be newly introduced by this petition and the petition is totally misconceived and meant to protract the proceedings. Appellant has challenged this order.
2. We heard the learned counsel on both sides.
3. Learned counsel for the respondents vehemently contended that the appeal is not maintainable and the matter sought to be introduced being already averred in the written statement, it is unnecessary to repeat the same. Further he contended that the appellant filed such a petition for amendment at a belated stage only with a view to protract the proceedings.
4. The case is being heard by a single Judge of this Court as an original petition under Section 104 of the Patents Act, 1970. Learned counsel while referring to Order 43 and Sections 104 and 105 of the Code of Civil Procedure, for short C.P.C., contended that there is no provision for an appeal against the order rejecting an amendment petition, and remedy is provided to an aggrieved party in Section 105(1), C.P.C. against such orders, It is true that no right of appeal is provided in the C.P.C. against such an order. But, Section 5(i) of the Kerala High Court Act, 1958, as amended by Act 6 of 1966 lays down that an appeal shall lie to a Bench of two Judges from
a judgment or order of a single Judge in the exercise of original jurisdiction.
5. The impugned order has been passed by the learned single Judge in the exercise of original jurisdiction. Section 5(i) of the Kerala High Court Act, in our opinion, has a wider scope as a special provision and is not controlled by the provisions of Section 104 of the C.P.C. inasmuch as it lays down that save as otherwise expressly provided by any law for the time being in force no appeal shall lie from the orders except those mentioned thereunder and other provisions of C.P.C. Although there is no provision in the C.P.C. providing an appeal against such an order, we find that the appeal is maintainable under Section 5(i) of the Kerala High Court Act.
6. We perused the written statement and the matters which are sought to be introduced by way of amendment. We find that so far as paragraph 14(a) which is sought to be introduced is concerned, the learned single Judge is correct in holding that the written statement already filed contains similar averments, and therefore it is unnecessary.
7. But, so far as paragraph 14(b) as stated in the amendment petition, which is sought to be introduced is concerned, we find that it contains averments of mixed questions of fact and law, so as to enable the defendant to raise an additional ground of defence, which was not pleaded in the original written statement. Further it does not appear that the amendment would introduce a totally new and inconsistent or different case. Hence the objection of the plaintiff against incorporation of para. 14(b) by way of amendment of the written statement is not sustainable.
8. We find that it is indeed a fact that by allowing this amendment, the hearing of the suit is likely to be protracted. But, that cannot be a ground to refuse an amendment of the pleadings, which we find is necessary in the interest of justice. However, the defendant having sought for amendment of the written statement at a belated stage, he should compensate the plaintiff, for the hardship caused to him. We therefore direct the defendant to pay an amount of Rs.500/- (Rupees Five
Hundred only) as costs within two weeks from today, failing which the appeal and the petition for amendment will stand dismissed. On payment of costs the appeal will stand allowed as indicated above.