AMENDMENT OF PLEADINGS



DEFINITION OF PLEADING UNDER ORDER 6 RULE 1 OF CPC:

“the term pleadings refer as to plaint or written statement.”


Plaint is the document submitted by the plaintiff. The aggrieved party who states the material facts, reasons for filing the suit and what remedy or relief the aggrieved person is claiming through the legal proceedings

 ACCORDING TO MOGHA:


“Pleadings are statements in writing drawn up and file by each party to a case, stating what his contentions will be at the trail and giving all such details as his opponent needs to know in order to prepare his case in answer.”

 DEVKI NANDAN V. MURLIDHAR:


The Hon’ble Supreme Court held that at any point of determination established by the court is null and void if it is based on materials not mentioned in the pleadings. All averments or arguments should base on pleadings. Therefore, the pleading is the backbone of a suit.

ORDER 6 RULE 17:


“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:
Provided that 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 trail.”

OBJECT OF AMENDMENT OF PLEADINGS:


The object of the Rule 17 is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to other side. Ultimately, courts exist for the purpose of doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties.

NOTICE TO OPPOSITE PARTY:


This application can move by any party of a suit or any proceedings, i.e. Plaintiff or Defendant. When an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an objection against such prayer. An order granting amendment without hearing the opposite party is against the rue of natural justice. But, if the amendment is purely formal or technical in nature, non- issuance of notice is not material.

DISCRETION OF COURT:


Rule 17 of Order 6 confers wide discretion on a court to allow either party to alter or amend his pleadings at any stage of proceedings on such terms as it deems fit. Such discretion, however, must be exercised judicially and in consonance with well-established principles of law. The proviso as inserted by the Amendment Act, 2002, however, puts further restrictions on the power of the court in allowing amendment.

 MOHINDER KUMAR MEHRA V. ROOP RANI MEHRA


The Hon’ble Supreme court held that “Order 6 Rule 17 consists of two parts whereas the first part is discretionary (may) leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.”

RECORDING OF REASONS:


While deciding an application for amendment of pleadings, the court must apply its mind and should record reasons for allowing or not allowing the amendment.

ORDER 6 RULE 17 IS EXHAUSTIVE?


The provision of Rule 17 of Order 6 is not exhaustive of the power of a court in a matter of amendment of pleadings. The power of amendment is inherent in the court and where Rule 17 does not apply, resort can be had to Section 151 of the Code.

REVAJEETU BUILDERS & DEVELOPERS V. NARAYANASWAMY & SONS AND OTHERS


The Hon’ble Supreme Court, after examining the entire previous case law on the subject, culled out the following principle in Para 63 of the judgement which reads as under:

“63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

  1. whether the amendment sought is imperative for proper and effective adjudication of the case;
  2. Whether the application for amendment is bona fide or mala fide;
  3. The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
  4. refusing amendment would in fact lead to injustice or lead to multiple litigation;
  5. whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;
  6. as a general rule, the court should decline amendment if a fresh suit on the amended claims would be barred by limitation on the date of application.”


These are some important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

LEAVE TO AMEND WHEN GRANTED:


The rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings, where the amendment will occasion no injuryto the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order.

CHAKRESHWARI CONSTRUCTION PVT. LTD. V. MANOHAR LAL


The Hon’ble Supreme Court held that “if the amendment proposed do not change the nature of the case originally set up by the plaintiff, do not introduce any fresh cause of action; no prejudice is likely to be caused to the Respondent because the Respondent in such eventuality would have got an opportunity to make consequential amendment in the written statement and file additional document in rebuttal.”

 APPLICABILITY TO OTHER PROCEEDINGS:


Over and above civil suits, the provisions of Rule 17 apply to several other proceedings such as execution proceedings, insolvency proceedings, arbitration proceedings, election matters, proceedings under the Land Acquisition Act, claim petitions etc. Even where the provisions of the Code are not applicable, courts and tribunals are competent to devise their own procedure consistent with and based on the general principles of the justice, equity and good conscience.

FAILURE TO AMEND THE PLEADINGS: ORDER 6 RULE 18


If a party, who has obtained an order for leave to amend, does not amend accordingly within the time specified for that purpose in the order or if no time is specified then, within 14 days from the date of the order, he shall not be permitted to amend after expiry of the specified time or of 14 days unless the time is extended by the court. It does not, however, result in dismissal of the suit. Again, the court has discretion to extend the time even after the expiry of the period originally fixed. In an appropriate case, the court may allow the amendment to be carried out by the party in spite of his default on payment of further costs.

"This article is authored by Ms. Pooja Mankoji (pursuing law), you can reach out to her at poojamankoji97@gmail.com"

Comments

  1. Useful information presented in simplest form . Great Work Madan

    ReplyDelete
  2. Great work by the author! Good researched, well put, easily understandable information and it covers almost the whole topic of amendment of pleading.

    ReplyDelete
  3. Is there any restriction on amendment of pleadings when the evidence has been lead?

    ReplyDelete
    Replies
    1. You can't introduce new facts while leading evidence. You have to argue on what is stated in your pleadings. If you dont have averments in your pleadings you can't argue on it. Court has discretionary powers, if the court is satisfied that you are not changing the nature of the suit then may be court may allow for amendment.

      Delete
  4. Mohinder Kumar Mehra vs Roop Rani Mehra

    ReplyDelete
  5. After reading this article my knowledge in this particular section is increased, Now I can say I have some knowledge regarding the amendment of pleading....
    Simple language great knowledge
    Thank You Mam(Author)

    ReplyDelete
  6. Clear and easy to understand..

    ReplyDelete
  7. This Article enumerates indepth knowledge of discretionary power of court to allow amendment of pleading. It just made this topic easily understandable.
    Quite enlightening.
    Well done! Keep it up!

    ReplyDelete
  8. Very informative. Good work

    ReplyDelete
  9. Nice information. Explained in simplest the form.

    ReplyDelete

Post a Comment

Popular Posts