This article is written by Vishwajeet Singh Shekhawat who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.
Table of Contents
Introduction
A Pleading is a formal document in which a party to a legal proceeding (esp. a civil lawsuit) sets forth or responds to allegations, claims, denials or defenses. It forms an important part in the resolution of dispute between parties as it contains fact which forms the basis on which the rights and liabilities of the party to the suit are ascertained.
The provisions with regards to Pleading are found under Order VI of the Code of Civil Procedure, 1908 (hereinafter, the Code). The term pleading is not defined in the code, but under Order VI Rule 1 is stated in the following manner:
“Pleading”, shall mean plaint or written statement.
Plaint as stated above contains the statement of facts which are provided by the plaintiff in order to prove his claim against the defendant. On the other hand, written statements are the statement of defence by the defendant in response to the facts alleged for a claim by the plaintiff. The provision in relation to plaint is provided under Order VII and that of written statement is found under Order VIII of the Code.
Further, every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
The term material fact has been not been defined under the code, but has been interpreted and explained by the courts to mean “all facts upon which the plaintiff’s cause of action or the defendant’s defence depends, or in other words, all those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written statement”.
This article aims to give an overview of the concept of amendment of pleadings, in addition to highlighting the need, object & history behind the provision. In the latter part, the article looks at the various interpretations given by the courts to be adopted on case to case basis, as well as to ensure that the provision intended for the purpose of providing complete justice, is not adverted to by the parties to cause unnecessary delay in delivering justice.
Amendment of Pleadings
In certain circumstances, the parties to the case may feel the need to amend the pleadings submitted to the court for reasons ranging from coming into the light of new information which was previously unknown, or facts which are necessary for the determination of the question in controversy between the parties, among other reasons.
For reasons stated hereinbefore and others, the law provides for the amendment of pleadings by the parties under Order VI Rule 17, which is reproduced as below:
“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 trial.
This provision under the code has had a checkered history. The provision has been adopted and interpreted a number of times by the apex court as well as the different High Courts in order to allow the parties to present their complete claims as well as to bring an end to litigation. We will look at the same under the various heads hereinafter.
Interpretation of the Rule
Firstly, the provision under the order and the particular rule can be interpreted to mean that the court has discretionary power to allow any party to the matter, at any stage, to amend the pleadings by way of alteration, deletion, or addition. The court may or may not allow the parties to amend the pleadings. Further, the court has the power to decide on case to case basis the manner and terms on which the parties may be allowed to amend the same. Therefore, it can be said that the amendment of pleadings is not a right vested with the parties, but is at the discretion of the court.
Secondly, the other part of the Rule 17 of Order VI leaves no discretion to the court but is mandatory. It orders the court to allow only all such applications for the amendment of pleadings, which are necessary to determine the real questions in controversy between the parties. It is to be noted that the rule allows the court to exercise the discretion before the commencement of trial.
Lastly, the proviso to the rule states that the court shall not allow permission to any application for the amendment of pleadings after the commencement of trial. The second part of the provision states that an application for amendment can be allowed even after the commencement of trail if 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.
Object of Rule 17 Order VI
The purpose for which the amendment of pleadings is allowed by the court is essentially to administer equitable justice to the parties without giving too much emphasis on following the procedural laws, which are means for delivering justice and not the end themselves. The absence of any fact which is material to the issue and the chances of the same causing prejudice to any party to the controversy would render the delivery of justice incomplete. However, the same power is also exercised by the court to settle the matter in its entirety, so as to bring an end to the litigation and avoid multiplicity of proceedings.
The concept of amendment of pleadings can be traced back to the decision of the Privy Council in the case of Ma Shwe Mya vs. Maung Mo Huang, where “the Court observed that the rules of Courts are nothing but provisions intended for securing the ends of justice and all those rules must be subordinate to achieve that purpose. For that to be achieved, full powers of amendment must be enjoyed and liberally exercised by the courts and it has added a caveat that an amendment cannot be made to substitute one cause of action for another.”
For the same reason the courts were provided with the power to allow the parties to amend or alter their pleadings at any stage of the proceeding. Also, in Haridas Girdhardas vs. Vasadaraja Pillai, the Supreme Court had in relation to the amendment of pleading observed that “however negligent or careless the first omission may have been, and however late the proposed amendment, the amendment should be allowed if it does not cause any injustice to the other side.”
The same powers given to the courts without any restrictions were misused by the litigants as a result of which a considerable amount of delay in disposal of the cases were observed, resulting in pendency of cases. With a view to counter this problem of delay an amendment, a committee headed by Justice Malimath recommended the deletion of the provision under Rule 17 with a view to avoid delay and to ensure speedy disposal of cases.
The Parliament with a view to give substance to the recommendation of the committee introduced the Code of Civil Procedure (Amendment) Act, 1999, as a consequence of which the provision under Rule 17 was deleted. However, the amendment made was not notified. Later in 2002, another amendment to the code was made which reintroduced the deleted rule and added a proviso in order to curtail the misuse of the provision, thereby giving it the present form. The same was later notified and came to force on 1st July, 2002.
The Supreme Court in Vidyabai and others vs. Padmalatha and another had the opportunity to examine the legislative intent behind the amendment to rule 17 of Order VI, and observed in the judgment that the proviso added to the rule by the amendment is mandatory in nature. It further observed that the satisfaction of the condition under the proviso, that it must be come to a conclusion that in spite of due diligence the parties could not have raised the matter before the court, is a condition precedent before allowing the application for amendment.
Further, it was also observed by the apex court that the addition of the proviso to the rule is intended to prevent applications which are vexatious and filed to delay the trail.
Test for admissibility of application for amendment
It is to be understood that there cannot be any straight jacket formula by virtue of which the application for amendment can be allowed or rejected by the court, and the same varies on the facts and circumstances of the case. Generally speaking, the courts are vested with wide discretion to grant leave to the parties for amending the pleadings. The same power is exercised in order to resolve the real issue in the controversy between the parties and keeping in mind the fact that it will in no way cause any injury to the opposite party. Further, the courts also take into account whether any injury or prejudice caused to the other party can be sufficiently compensated by imposition of costs.
Judicial interpretation of the Rule
It is pertinent to look into the approach taken by the courts while dealing with applications for amendment of pleadings. Firstly, the Supreme Court has in numerous decisions reiterated that court should be liberal while granting leave for amendment of pleadings so as to promote the ends of justice. The courts are vested with wide powers for allowing the leave to amend the pleadings and the same should be exercised with great care and caution.
The same was also observed by the Supreme Court in Ganga Bai v Vijay Kumar, where the court said that “the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court.”
In general, the courts have allowed leave to amend the pleadings by taking note of subsequent events which the parties were not aware at the time of filing of the pleadings, or to avoid multiplicity of proceedings, or where the amendment sought is of formal nature, or it is required to clarify the matter in the pleadings, or where the description of the parties is wrong, or to rectify the mistake in the statement of case of action, or where the omission in the pleadings was bonafide etc. Similarly, the court has refused the application for amendment of pleadings where it is not necessary to determine the real matter in controversy, or amendments which change the nature of the suit or which is new and inconsistent with the previous submissions, or which has the effect of depriving the other party of rights in his favour or which is not bonafide.
Further, the Supreme Court in Revajeetu Builders and Developers v Narayanaswamy & Sons by critically analyzing numerous case laws, both Indian & English, laid down some principles which the courts should take into account while allowing or rejecting the application for amendment. These are as follows:
- The first principle is that whether the amendment sought is “imperative for proper & effective adjudication of the case”?
- Secondly, the application made is bonafide in nature or otherwise?
- That no amendment which cause prejudice to the other party and cannot be compensated adequately, be allowed.
- Whether the refusal to allow the application would cause injustice or lead to multiplicity of proceeding.
- Whether the amendment sought changes the nature of the suit
- “As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”
The Supreme Court in Usha Balashaheb Swami and Ors. v Kiran Appaso Swami and Ors. held that: “A prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement.”
It essentially means that a different grounds of defence pleaded by amendment in a written statement, which even though inconsistent with the previous pleas, are not objectionable although any plea changing the cause of action in the plaint maybe objectionable.
An amendment should not be refused where it has the potential of taking away only the pecuniary jurisdiction of the court. The same was observed in the case of Koka Venkata Ramanaiah Naidu vs. Karnam Venkata Ratnam.
Further, the “Order VI Rule 17 is applicable not only to suits, but it is also applicable to insolvency proceedings, arbitration proceedings, election matters, execution proceedings, proceedings under Land Acquisition Act, matrimonial disputes, Rent Control Acts etc.”
Another important rule to take note of is Order VI Rule 18; which provides for a scenario where a party fails to amend the pleadings after an order is made by the court, within a time is prescribed or where no time is prescribed, within 14 days. The Bombay High Court in Salmona Villa Cooperative Housing Society Ltd. vs. Mary Fernandez and others has observed that, “For the inability to carry out such amendment within the time of 14 days or within the time prescribed by the Court, the plaintiff should not be deprived of the benefit of the amendment. The inconvenience caused to the defendant may be compensated by awarding suitable costs. It is said, that the procedure under Rule 18 of Order 6 should not be applied so rigorously and with hyper-technical 11 stress that it breaks the strings of substantial justice.”
Lastly, recently the Supreme Court in M.Revanna vs Anjanamma had made the following observation in relation to allowing application for amendment after commencement of trial-
“The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier.”
Conclusion
In view of the above discussion and interpretation of the provision through various judgments, it can be said that the law in relation to amendment of pleadings has been exercised by the courts in order to secure the ends of justice and to deliver equitable justice. The same has been also exercised by the courts keeping in mind that the same is not available to the litigant as a vested right but is given at the discretion of the court which should be exercised with due care and caution. The courts also have to been observing the principles, which have been laid down under various judgments by the apex court.
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