AMENDMENT OF PLEADING

8/3/2019 AMENDMENT OF PLEADING

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AMENDMENT OF PLEADING.

INTRODUCTION.

It is an essential requirement of pleading that material facts and necessary particulars

must be stated in the pleadings and the decisions can not be based on grounds outside the

pleadings. But many a time the par ty may find it necessary to emend his pleadings before or

during the trial of the case. Rule 17 of Order VII deals with the provision of amendment of the

plaint1.

ESSENTAILS OF PLEADING.

In law as practiced in countries that follow the English models, a pleading is a formalwritten statement filed with a court by parties in a civil action, such as a complaint, a

demurrer, or an answer.

ORDER 6 of the Civil Procedure Code,1908 deals with pleadings in general. A plaint

is the first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the

relevant allegations of fact that give rise to one or more legal causes of action along with a

prayer for relief.

It can be seen that Rule 12 defines pleading; Rule 23 lays down the fundamental 3

principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.

Rules 14 and 15 require the signing and ver ification of pleadings. Rule 16 empowers a

117. Amendment of pleadings.

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 question in controversy

between the parties.

Provided that no application for amendment shall be allowed after the trial has

commenced, unless the Court conies to the conclusion that in spite of due diligence, the party

could not have raised the matter before the commencement of trial.21. Pleading.

"Pleading", shall mean plaint or written statement.

32. Pleading to state material facts and not evidence.

(1) 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.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each

allegation being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.


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court to strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to

amendment of pleadings.

14. Pleading to be signed.

Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable

to sign the pleading, it may be signed by any person duly authorized by him to sign the same

or to sue or defend on his behalf.

15. Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be

varied at the foot by the party or by one of the parties pleading or by some other person

proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the

pleading, what he verifies of his own knowledge and what he verifies upon information

received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on whichand the place at which it was signed.

(4) The person verifying the pleading shall also furnish an affidavit in support of his

pleadings.

17. Amendment of pleadings.-

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 question in controversy

between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced,

unless the Court conies to the conclusion that in spite of due diligence, the party could nothave raised the matter before the commencement of trial.

AMENDMENT AND ITS OBJECT:

As stated earlier, essential details have to be mentioned in the plaint and unnecessary

details have to be struck out.

The paramount object behind Amendment 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 the other side4.

Ultimately, the courts exist for 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 parties5.

Provisions for the amendment of pleading are contained to promote end of justice and

4

Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559.

5 Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.


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not for defeating them6. Further in the leading case ofCropper v. Smith, the object underlying

the amendment of pleadings has been laid down by Bowen, L.J. in the following words:

I think it is well-established principle that the object of the courts is to decide the

rights of the par ties and not to punish them for mistakes they make in the conduct of

their cases by deciding otherwise than in accordance with their rights.7

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 parties to be raised in pleadings, where the amendment will

occasion no injury to the opposite party and can be sufficiently compensated for by costs or

other terms to be imposed by the order8.

InKisandas v. Vithoba9, Batchelor J. observed as follows:

All amendments ought to be allowed which satisfy the two conditions (a) of not

working in justice to the other side, and (b) of being necessary for the purpose of

determining the real questions in controversy between the parties.

Therefore the main points to be considered before a party is allowed to amend his

pleading are:firstly, whether the amendment is necessary for determination of the real

question in controversy; and secondly, can the amendment be allowed without injustice to the

other side.

Thus, it has been held that where amendment is sought to avoid multiplicity of

suits10 , or where the parties in the plaint are wrongly described11, or where some

properties are omitted from the plaint by inadvertence12, the amendment should be

allowed.

6 Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91: AIR 1978 SC 484.

7 (1884) 29 Ch D 700.

8 Tildersley v. Harper, (1878) 10 Ch D 393.

9 [1909] I.L.R. 33 Bom. 644; 11 Bom.L.R. 1042.

10 Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357

11

Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.

12 Someshwari v. Mahshwari, AIR 1936 PC 332.


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LEAVE TO AMEND WHEN REFUSED.

It is true that courts have very wide discretion in the matter of amendment of pleadings. But

the wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power

and no legal power can be exercised improperly, unreasonably or arbitrarily.

In Ganga Bai v. Vijay Kumar13, the Supreme Court has rightly observed:

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.

Generally, in the following cases, leave to amend will be refused by the court:

1. Leave to amend will be refused when amendment is not necessary for the purpose of

determining the real question in controversy between the parties. The real controversy

test is the basic test. InEdevian v. Cohen14, the application for amendment was rejected

since it was not necessary to decide the real question in controversy.

2. Leave to emend will be refused if it introduces a totally different, new and

inconsistent case or changes the fundamental character of the suit or defence. In

Steward v. North Metropolitan Tramways Co.15, the plaintiff filed a suit for damages

against the tramways Company for negligence of the company in allowing the

tramways to be in a defective condition. The company denied the allegation of

negligence. It was not even contended that the company was not the proper party to be

sued. More than six months after the written statement was filed, the company applied

for leave to amend the defence by adding the plea that under the contract entered into

between the company and the local authority the liability to maintain tramways in

proper condition was of the latter and, therefore, the company was not liable. On

the date of the amendment application, the plaintiff's remedy against the local

authority was time barred. Had the agreement been pleaded earlier, the plaintiff could

have filed a suit even against the local authority. Under the circumstances, the

amendment was refused.

13 1974 AIR 1126, 1974 SCR (3) 882.

14

(1889) 43 Ch. D 187.

15 (1886) 16 QB 178.


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3. Leave to amend will be refused where the effect of the proposed amendment is to take

away from the other side a legal right accrued in his favour16. Every

amendment should be allowed if it does not cause injustice or prejudice to the other

party.

In Weldon v. Neal17 the original action was simply for slander, and the plaintiff

was non-suited. Later she sought to amend her claim by setting up, in addition

to the claim for slander, fresh claims in respect of assault, false imprisonment and

other causes of action, which at the time of such amendment were barred by

limitation though not barred at the date of the writ. Here, then, the amendment

sought to setup fresh claims, claims which had never been heard of until they had

become bar red; yet even in so strong a case as this Lord Esher M.R. refusing leave to

amend intimated that the decision might have been the other way if there had existed

special circumstances to justify it.

4. Leave to amend will be refused where the application for amendment is not made in

good faith.18The leave to amend is to be refused if the applicant has acted mala fide. In

Patasibai v. Ratanlal19, it was observed that there was no ground to allow the

application for amendment of the plaint which apart from being highly belated,

was clearly an afterthought fur the obvious purpose of averting the inevitable

consequence of rejection of the plaint on the ground that it does not disclose any cause

of action or raise any triable issue.

EFFECT OF AMENDMENT.

Where an amendment is allowed, such amendment relates back to the date of the suit as

originally filed. In Brij Kishore v. Smt. Mushtari Khatoon it was held that the Court must

take the pleadings as they stand after amendment and leave out of consideration

the unamended ones. The court must look to the pleadings as they stand after the

amendment and leave out of consideration unamended ones20.

CONCLUSION.

It can be concluded that the amendment of pleading is necessary to avoid multiplicity of

16 Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357.17 (1880) 19 Q.B.D. 89.4; 66 L.J.Q.B. 621; 35 W.R. 820.

18 Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.

19

1990 SCR (1) 172, 1990 SCC (2) 42.

20 Brij Kishore v. Smt. Mushtari Khatoon, AIR 1976 All 399.


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civil suits. But, the court cannot grant the leave of amendment at its whims and fancies.

There has to certain criterion for granting or refusing the leave, which has been laid down

in case laws.

FURTHER REFERENCES.

1. Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law

Agency, Faridabad.

2. C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow.

3. M.P Jain, the Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company,

Nagpur.

4. Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company,

Nagpur.

5. http://indiankanoon.org/doc/468319/

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AMENDMENT OF PLEADING