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Law on Amendment of Pleadings in India

Pleadings are an integral part of the first stage of the suit and form the backbone on which the future of the suit rests. The counsel on behalf of the plaintiff files a statement in writing detailing his contentions regarding the case. It is on basis of this statement that the defendant files a written statement with his defence as well as explaining why the contentions raised by the plaintiff will not hold up/prevail in Court.

There are instances where after filing the plaint the plaintiff may with leave of the court file a statement or the Court may direct him to file a statement in writing. These statements are also considered a part of the pleadings by the plaintiff.

The same may be done/required of the defendant and would form a part of the defendants’ pleadings. Pleadings are defined as a written statement or a plaint under Order VI Rule 1 of the Code of Civil Procedure, 1908 (herein after the Code). Pleadings function as a tool to narrow down on the relevant issues and help in fast tracking the proceedings. It enables both parties to raise the required arguments and evidence by providing details from both sides on the point in dispute.

As a general rule counsels of both parties are expected to concentrate on the material facts in their respective cases as opposed to raising contentions regarding the applicable laws, crisp and concise presentation is expecting while presenting these pleadings. The rule of pleadings may be summarised into a simple statement – Plead facts not law.

There may be circumstances where a party may not be able to contain all material facts in their pleadings either due to these facts arising/coming to the attention of the party at a stage after filing the pleading. Corrections to the plain or the written statement are essential in such cases. It is for this purpose that the Code includes provisions (namely Rules 17 and 18 of Order VI) that enable parties to make certain amendments.

Order VI Rule 17 bestows the power on Courts to permit parties to alter, modify or amend their respective pleadings at any stage of the proceedings, this would however be permissible only in cases where the amendment is necessary to resolve the dispute between the parties. The objective of allowing amendments is to meet the ends of justice not to defeat the law.[1] The object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes.[2]

The proviso to Rule 17 states that amendments are not to be allowed post the commencement of the trial, at the same time the Court is given the discretion to allow the same in case it comes to the conclusion that all material/relevant facts (necessary to the case) could not have not been raised prior to the commencement of trial.

Another provision of the Code that deals with amendments is Section 153 of CPC entitled General power to amend which provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

The Supreme Court in the case of Gurdial Singh & Ors vs Raj Kumar Aneja & Ors [3]enumerates general practices to be followed while making an amendment. An amended writ or pleading must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge, master or registrar by whom any order authorizing the amendment was made and the date of the order; or, if no such order was made, the number of the rule in pursuance of which the amendment was made.

The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red.[4] In the same judgement the Apex Court also reprimanded its subordinate Courts regarding the loose practices followed while entertaining and dealing with application for amendments stating that if the same is to continue it is likely to thwart the course of justice

Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. [5]and Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors[6] are two judgements by the Apex Court of India dealing with the scope of amendment of pleadings before or after the commencement of the trial and also provide an illustrative list (to be noted : not exhaustive) of factors that need to be given due consideration while dealing with an application for amendment.

Before considering the aforementioned factors it is to be noted, as in all scenarios where the Court is given discretionary powers; although the power to allow amendments is undoubtedly wide and may be exercised at any stage (notwithstanding the law of limitation)[7] keeping in mind the interests of justice, the wider the discretion the greater the care and circumspection on the part of the Court.[8]

Certain principles emerge after analyzing both English as well as Indian cases and can be summarized into the following points:
  1. The amendment sought must be imperative for allowing proper and effective adjudication of the dispute and must be bona fide in nature. The Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide (example; to delay proceedings) and dishonest amendments. Parties should be allowed to alter or amend their pleadings in a manner and on terms that are just.
     
  2. Whether the nature of the suit (constitutionally or fundamentally) changes by permitting an amendment, such as where an amendment would result in introducing a new cause of action likely to prejudice the other party.
     
  3. The amendment if allowed should not cause any kind of prejudice to the other side that may not be adequately compensated monetarily.

Generally, Courts should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

Amendment cannot be claimed as a matter of right and under most circumstances, the Courts should apply a liberal approach as opposed to a hyper-technical approach where the possibility of compensating the other party with costs exists.

Refusing amendments should not lead to injustice or lead to multiplicity of litigation which must be avoided at all costs.

The judicial trend that has developed seems to be that the delay in filing for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.[9]

There are two parts that form the amendment of pleadings under Order VI Rule 17: the may and the shall.

As observed in the case of Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors [10] the may in the first part of provision is what gives the Court the discretionary power to either allow or disallow applications preferred for amendment of pleadings. The shall in the second part functions more as a direction (obligatory) to the Courts to allow the application if the amendment in question is vital to determine the real issue at the centre of the dispute between the parties (real controversy as explained by the Court in the same case).

The question regarding amendments to written statements by the defendant is answered by the Court in the case of B.K-Narayana Pillai vs Pararneswaran Pillai & Anr while holding that The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements[11] while making it clear that they however stand on a slightly different footing.

The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event[12] the same was further clarified by the Court in the case of Usha Balasahed Swami v. Kiran Appaso Swami stating that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.[13]

The expression consequential amendment is also judicially recognised. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party.[14] The same finds mention and application in the case of Bikram Singh & Ors. Vs. Ram Baboo & Ors.[15]

To conclude it can be said that the mechanism of amendment of pleadings is to benefit the parties and functions as a means to correct bona fide mistakes and to ensure that justice can be accorded to both parties.

End-Notes:
  1. In M/s.Ganesh Trading Company v.Moji Ram [1978 (2) SCC 913]
  2. Cropper v. Smith (1884) 26 Ch.D. 700
  3. AIR 2002 SC 1003
  4. ibid
  5. (2008) 14 SCC 364
  6. (2009) 10 SCC 84
  7. State of A.P. v. Pioneer Builders (2006) 12 SCC 119
  8. Smt.Ganga Bai v. Vijay Kumar & Ors. [1974 (2) SCC 3931
  9. [1999] INSC 419
  10. AIR 2002 SC 1003 (1010) :(2002) 2 SCC 445.
  11. [1999] INSC 419
  12. ibid
  13. (2007) 5 SCC 602, also see: Baldev Singh (2006) 6 SCC 498
  14. Gurdial Singh & Ors vs Raj Kumar Aneja & Ors
  15. AIR 1981 SC

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