Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.
“Pleading” is defined in the Code of Civil Procedure as meaning plaint or written statement. (Order VI, Rule 1).
ADVERTISEMENTS:
Plaint is the statement of a claim, in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars.
Written statement is the statement of defence in writing and filed by the defendant in which he deals with every material fact alleged by the plaintiff in the plaint and also states new facts which may be in his favour, adding such legal objections as he wishes to make to the claim.
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In some cases a plaintiff, having filed his plaint, may, with the leave of the court, file a statement or the court may require him to file a written statement. In such cases the written statement forms part of the plaintiff’s pleadings. Similarly, there are cases in which the defendant having filed his written statement may, with the leave of the court, file an additional written statement or the Court may require him to do so.
In such cases the additional written statement also forms part of the defendant’s pleadings. The plaintiff’s written statement and the defendant’s additional written statement are termed supplemental pleadings.
ADVERTISEMENTS:
Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings to civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes of action must take.
Object of pleadings:
The whole object of the pleading is to narrow the parties to definite issues and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.
It is no doubt true that rules of pleadings are meant to help the court in narrowing controversies, but it is equally true that pleadings in this country are not to be construed too technically. The object of pleadings is generally to see where the parties differ, so that each side may be fully alive to the questions in issue in order to be able to bring forward appropriate evidence.
ADVERTISEMENTS:
The pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case.
As pleadings form the foundation of claim of a litigating party, no amount of proof can substitute pleading. The plea as to adverse possession not raised in pleadings, so proof about it cannot be argued.
It was observed by the Supreme Court of India on March 25, 1972, while disposing of a petition praying for certain amendments in an election petition, that rules of pleadings are intended as aids for a fair trial and for reaching just decisions.
An action at law should not be equated to a game of chess. Provisions of law are not mere formulas to be observed as rituals. Beneath the words of a provision of law, generally speaking, there has to be a juristic principle. It is the duty of the court to ascertain that principle and implement it.
Rules of pleadings:
The law of pleadings may be tersely summarised in four words “Plead facts not law”. It is the duty of the parties to state only the facts on which they rely for their claim. It is for the court to declare the law arising out of those facts.
The rules regarding pleadings are as under:
1. A pleading must state facts and not law.
The first fundamental rule of pleadings, observes Mogha in “The Law of Pleadings in India”, is that neither provisions of law nor conclusions of mixed law and fact, should be alleged in a pleading. The pleadings should be confined to facts only, and it is for the Judge to draw such inferences from those facts as are permissible under the law, of which he is bound to take judicial notice. Any assertion without showing on what facts his claim of right is founded is bad.
2. It must 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.
3. It must state only the material facts on which the party pleading relies for his claim or defence, and not the evidence by which they are to be proved.
4. The material facts must be in the form of a statement in a concise form, but in aiming at conciseness precision should not be sacrificed. The pleadings, when necessary, shall be divided into paragraphs, numbered consecutively, each allegation being so far as is convenient, contained in a separate paragraph. Dates, sums and figures shall be expressed in figures as well as in words. [Order VI, Rule 2],
Effect of absence of pleadings:
Where there was no clear plea regarding sub-tenancy in written statement and no evidence was led in relation thereto, which could be looked into, held that defendant could not build up his case on sub-tenancy.
Departure from earlier pleadings could not be allowed:
Where in a suit for recovery of money on promissory note. Defendant had earlier taken plea of total denial of claim but by any of additional written statement had changed to that of renewal of earlier debt. Held, that such departure from earlier pleading could not be allowed and as such acceptance of subsequent plea was not proper.
5. Allegations in anticipation of the opponent’s answer should not be made. The pleadings should be confined to what is material at the present stage of this suit.
6. Facts necessary for the enforcement of legal right or duty must be mentioned. Thus in a suit for breach of contract on account of the negligence of the defendant, it has to be stated specifically what kind of duty the defendant owed to the plaintiff and how was he negligent.
7. Performance of a condition precedent being implied in every pleading it need not be alleged; the opposite party must specify distinctly the conditions, the performance or occurrence of which he intends to contest.
8. Where the contents of any documents are material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible, without setting out the whole or any part thereof, unless the precise words of the document or any part thereof, are material. [Order VI, Rule 9],
9. Facts which the law presumes in one’s favour or as to which the burden of proof lies upon the opponent need not be pleaded, unless the same has first been specifically denied. [Order VI, Rule 13],
10. The party should not plead conclusions of law. The pious obligation of a Hindu son to pay his father’s debts need not be pleaded. But foreign law and certain customs and usages are not judicially taken notice of by courts and they must be pleaded as facts.
11. Legal inferences should never be pleaded. A pleading that the plaintiff is the legal heir of the deceased is an inference of law and should not be pleaded. The plaintiff should show how he is connected with the deceased, and should also account for other relations nearer to the deceased than the plaintiff.
12. Legal pleas such as estoppel, limitation and res judicata may be pleaded.
13. In cases where the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, particulars shall be stated in the plaint. [Order VI, Rule 4].
14. Every pleading shall be signed by the party and his pleader (if any). (Order VI, Rule 14).
Order V, Rule 15 (as amended by U.P Act 37 of 1972 and U.P. Act 57 of 1976) are valid law.
Defect of signature—effect-prejudice to public:
Suit by bank was filed for recovery of loan and claim of bank was justified. It would be travesty of justice if suit is dismissed on ground of plaint not signed and verified by competent person. The public interest cannot be allowed to be defeated on mere technicality. On the basis of the evidence on record, the court might see that the Bank had expressly or impliedly ratified the act of signing of pleadings by its officer.
Facts, not evidence:
The material facts consist of the facts which the party is required to prove. They are termed as facta probanda, i.e., the facts require to be proved. The material facts should be stated in the pleadings. The facts or evidence by means of which they are to be proved are facta probantia and they need not be stated in the pleadings as they are not the facts in issue, but only relevant facts required to be proved at the trial in order to establish the facts in issue.
The aforesaid aspect is well illustrated by the principle laid down in the case Borradaile v. Hunter, 5 Mau and Gr. 693. It was a case of insurance. One of the terms of the policy was that it would become void if the policy-holder “died by his own hand” and the defendant Insurance Company wanted to defend the claim on that ground.
It was alleged in defence that the policy-holder had, for weeks, been in a moody miserable state, that he had brought a pistol the day before his death, and that a letter was found with him addressed to his wife stating that he intended to kill himself. It was held that all these facts were merely evidentiary facts and should not be alleged in the pleading, but it was sufficient to say that the assured “died by his own hand”.
The general rule is that all the material facts should be pleaded. The rule requires: (a) that the party pleading must plead all material facts on which he intends to rely; and (b) that he must plead material facts only, and no fact which is immaterial should be pleaded nor the evidence.
Every fact is material for the pleading of a party, which the party is bound to prove at the trial before he can succeed in his claim or a defence. Facts which are not necessary to establish either a claim or a defence are not material.
Under Order VI, Rule 4, C.P.C., particulars have to be furnished of the plea of fraud or misconduct raised in accordance with Order VI, Rule 2, C.P.C. and it is not permissible to introduce by way of particulars a plea of fraud or misconduct other than that raised in the pleadings.
Acquisition of land was challenged and set aside for non-compliance of certain rules. Particulars of such non-compliance were absent in the petition. The order setting aside land acquisition for non-compliance of those rules is not maintainable. No notice can be taken on an allegation which is devoid of any particular.
Exceptions: (1) Condition precedent:
The performance or occurrence of any condition precedent necessary for the case of any party need not be alleged, as its averment shall be implied in his pleading. If the other party wants to contest the performance or occurrence of such condition he is bound to raise the plea distinctly in his pleading.
But the case is otherwise, if the notice be one imposed by statute, e.g., notice of suit against Government, or a railway administration, or consent of the Advocate-General and, now after the 1976 amendment, with the leave of the court, for a suit about public nuisance or public charitable trust or one imposed by agreement of parties.
For instance, the giving of a notice under section 80, C.P.C. before initiating a case against the Government is a condition precedent, but it must be pleaded as section 80, C.P.C. lays down that the plaint shall contain a statement that such notice has been delivered.
2. Matters of Legal Presumption:
Only those pleadings need not be pleaded which a court “shall presume” within the meaning of the Indian Evidence Act, but, as observed by Mogha in “the Law of Pleadings in India”, the fact which a court may presume should be pleaded.
3. Prefatory Statements:
Sometimes a plaint commences with introductory allegations about the parties, the business they carry on, their relationship inter se, and other surrounding circumstances leading up to the dispute. Even though they are not material facts, they are allowed in England to explain the subsequent events, termed in law as “matters of inducement”. The introduction of prefatory statement in India is not a necessary requirement and can be avoided.
Particulars:
It has been stated above that in cases where the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default or undue influence, particulars shall be stated in the plaint. Particulars may be described as the details set up by a party to a suit.
The pleading must be concise; it must also be precise and definite. For this purpose all necessary particulars must be embodied in the pleadings. If the particulars stated in the pleadings are not sufficiently specific, the other party may apply for further and better particulars.
The plea of negligence:
The plea of negligence is to be followed by a plea to that effect, at least as an alternative case without a plea and proof of negligence, and on the Court discrediting the plea of the plaintiff that he suffered loss due to malicious acts of the deceased, the trial court was right when it held that there is no plea of negligence and so that plaintiff cannot be heard to contend that defendants Nos. 2 to 6 being the legal representatives of the deceased are liable in damages for the negligent act of the deceased.
Rule 4 of Order VI provides that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items, if necessary) shall be stated in the pleading.
Plea of Undue Influence:
Plea of undue influence cannot be made out from the general allegations in the plaint if not specifically pleaded. While it is true that ‘undue influence’, ‘fraud’ and ‘misrepresentation’ are cognate vices and may in part overlap in some cases, they are in law distinct categories and are in view of Order VI, Rule 4, read with Order VI, Rule 2, C.P.C. required to be separately pleaded with specificity, particularity and precision.
A general allegation in the plaint that the plaintiff was a simple old man of ninety who had reposed great confidence in the defendant, was much too insufficient to amount to an averment of undue influence of which the High Court could take no notice, particularly when no issue was claimed and no contention was raised on that point at any stage in the trial court or even before the first appellate court.
Doctrine of finality of litigation—extent and limitation:
The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. A person whose case is based on falsehood, has no right to approach the Court.
He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.
Vague or general plea of undue influence—effect:
A vague or general plea of undue influence can never serve the purpose of narrowing the controversy to precise issues; the party pleading must, therefore, be required to plead the precise nature of the influence, and the unfair advantage obtained by the other. The rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise.
The plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific, the court should before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.
Plea of Fraud:
Where fraud is alleged against the defendant, the plaintiff must set forth the particulars of the fraud which he alleges. It is not enough to use such general words as “fraud”, “deceit”, “bogus”, “collusion” or “machinations”. A plea of fraud must be raised in clear specific terms and at the earliest opportunity.
A fraud is an act of deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
Plea of Misrepresentation:
In a case of misrepresentation it should be stated whether the representation was verbal or in writing.
In case of breach of trust the pleading must specify the act constituting the alleged breach of trust.
In an action for slander the plaintiff must give particulars of the names of the persons to whom the alleged slander was communicated.
Plea of negligence, misconduct and agreement:
In cases of negligence, misconduct and agreement, the pleading should state full details of the acts on which the party pleading relies as constituting negligence, the acts of misconduct and the date of the agreement and the names of the parties to it.
Plea of malice, fraudulent intention, knowledge and other condition of mind:
Where it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it is sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred. (Order VI, Rule 10).
Pleadings Triable Issues—Full cause of Action:
Election petition challenging election on the basis of corrupt practice raised triable issues of corrupt practice by averments in it read with its Annexures. Part of such election petition cannot be struck down under Order VI, Rule 16 on that ground that no triable issues were raised therein.
Pleadings—Full cause of Action Absent—liable to struck down. Order VI, Rule 16—Full cause of action:
Election petition was filed challenging election on ground of corrupt practice without containing averments in pleadings all constituent parts of corrupt practice. The election petition was liable to be struck down as such pleadings do not constitute pleading of full cause of action.
In election petition the pleadings are liable to be struck down when averments were deficient of all constituent parts of corrupt practice. In such case election petition does not constitute pleading of full cause of action and, therefore, had to be ignored and struck out in accordance with Order VI, Rule 16.
However, there being a specific allegation in particular para 9, the election petition relating to the returned candidate himself based on his speech, to that extent a triable issue had been raised and had to be decided.
Object of Particulars:
The object of particulars is to prevent surprise at the trial by informing the opposite party what case he has to meet, to define and narrow the issue to be tried and so save unnecessary expense. It ensures a fair trial by giving notice of the case intended to be set up to the other side.
Application for better particulars:
Where the matter pertains to evidence and it was not necessary for the purpose of filing of written statement, held that in the guise of calling particulars was trying to protract the proceedings in the matter of maintenance. Therefore, such particulars cannot be demanded as better particular.
Failure to comply with order for supplying particulars:
If the order directing a party to give particulars is not obeyed, then on the default of the plaintiff his action shall be stayed and even dismissed if necessary and on the default of the defendant his defence shall be struck out.
Alternative and Inconsistent Pleadings:
A plaintiff may rely upon several different rights alternatively though they may be inconsistent and a defendant may also raise as many distinct and separate as also inconsistent defences as he may think proper. A person may rely upon one set of facts, if he can succeed in proving them and he may rely upon another set of facts, if he can succeed in proving the other.
Thus a plaintiff can claim a declaration that a bond was not executed by him, or, in the alternative, a declaration that it was void for want of consideration. But the plaintiff cannot be permitted to allege two absolutely inconsistent sets of facts, each of which is destructive of the other.
The court has also the power to strike out from the plaint or written statement alternative pleadings when they are embarrassing or tend to delay the fair trial of a suit. In alternative pleadings, the facts ought to be distinctly stated and should not be mixed up.
The suit raising an alternative independent plea cannot be considered as relitigation of the same issue or an absurd process of court.
Pleadings how construed:
It has been laid down by their lordships of the Judicial Committee as a salutary rule that the substance of the pleading and not the form should be considered. As pleadings in India, it has been further observed by their lordships, lack conciseness or state immaterial facts; they should not be strictly construed.
But where a party sets up a technical defence against a just claim his pleadings must be construed strictly. So must the pleadings be strictly construed where a plaintiff is a practising lawyer and he is represented by a pleader?
Rule 6 of Order VI lays down that an averment of the performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his pleading.
Rule 8 of Order VI further lays down that a bare denial of a contract by the opposite party shall be construed only as a denial in fact of the express contract alleged or of the matters of fact from which the same may be implied, and not as a denial of the legality or sufficiency in law of such contract.
Rule 5 of Order VIII also lays down that every allegation or the fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Read as a whole:
In construing a pleading or a like petition, the Court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter.
Variance between pleadings and proof:
It is a well settled principle of law that where a claim has never been made in the pleadings presented on a question of fact, no amount of evidence can be looked into upon a plea which was never put forward.
It is well settled that the decision of a case cannot be based on grounds outside the plea of the parties, and that it is the case pleaded which has to be found.
Amendment of pleadings:
The Court may at any stage of the proceeding 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. (Order VI, Rule 17).
Failure to amend after order:
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for the purpose by the order, or if no time is thereby limited, then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.] (Order VI, Rule 18).
The object of this rule is to enable the real question in issue between the parties to be raised on the pleadings for the purpose of adjudication between the parties. It also prevents multiplicity of suits and shortens litigation. The rule permits amendment at any stage and it does not matter whether the original omission arose from negligence or carelessness, for the courts exist for the determination of the rights of the parties and for doing substantial justice to them and not for punishing them for their mistakes in the conduct of cases. The powers of amendment vested in court under this rule are very wide.
But such amendments are allowed only when they occasion no injury -and cause no injustice to the opposite party or where they can be sufficiently compensated for by costs or other terms to be imposed by the court.
It is now well settled that a court should adopt a liberal attitude in allowing amendment of pleadings unless the nature of the amendment is such as to alter the basis of the suit or introduce a new ground.
Granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made.
The appellant cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court.
Object of amendment of pleadings and power of court to allow amendments:
The object of Order VI, Rule 17 is that the court should get at and try the merits of the cases that come before them. All amendments that may be necessary for the purpose of determining the real question in controversy between the parties should therefore be allowed, provided it can be done without causing injustice to the other side.
A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid multiplicity of suits, if there has been no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is affected and the application is not made mala fide and no injustice is done to the other side.
It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is
Discretionary Power:
The power given to the courts is entirely discretionary. The discretion has to be used judicially on a consideration of the special circumstances of each case. It is worthwhile to reproduce here the observations in the case of Clarapede v. Commercial Union Association: “However negligent or carelessness may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.” Bowen, L.J., in Cropper v. Smith, observed:
“I have found in my experience that there is one panacea which heals every sore in litigation and that is costs”.
Jai Jai Ram Manohar Lai v. National Building Material Supply, Gurgaon (AIR 1969 SC 1267):
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or- even infraction of the rules of procedure.
The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that, by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.
However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.
All amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.
Bona fide Application:
In order to allow an amendment of a Plaint or a written statement, the first point to the considered is whether the application has been made bona fide.
Another rule for allowing amendment is that no amendment of a plaint should be allowed if its effect is to take away a valuable right that has accrued to the opposite party by lapse of time. In the present case, when the application for amendment was made the time for filing the suit for pre-emption had already expired and a valuable right had accrued in favour of the vendees.
Thus where averments in the eviction petition that the respondent alone was the tenant and that the letting was for residential purpose are not contested in the application for leave to appear and defend, they cannot be allowed to be amended subsequently to set up a case of joint tenancy and to state that the purpose of letting was also commercial.
Conditions for Amendment—Liberal Justice and necessity:
Rules of procedure are handmaid of justice and are not to be utilised as by traps for unwary suitors and prayer for amendment of the written statement should not be considered with the same rigour and strictness as prayer for amendment of the plaint. It is also no doubt true that all amendments ought to be allowed which satisfy the two conditions:
(a) Of not working injustices to the other side, and
(b) Of being necessary for the purpose of determining the real questions in controversy between the parties.
The oft quoted dictum of Lord Justice Bowen in Cropper v. Smith may be quoted:
“It is well established principle that the object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. I know of no kind of error or mistake which is not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party.
Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace…… It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.” In M/s. Modi Spinning and Weaving Mills Co. Ltd. v. M/s. Ladha Ram and Co., it was observed:”
“……..The defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case.
It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement ”
In Biva’s Pvt. Ltd. v. West Bengal Khadi and Village Industries Board, it was held: “that by the proposed amendment the defendant tries to make out a new claim and to set up a new case than what was made in the earlier written statement. Moreover, by this proposed amendment the defendant is attempting to negative the admission that they were the sole agents of the products of the plaintiff.” In Sheikh Maston Sahib v. Balarami Reddi, it was held:
“Where by the proposed amendment the respondent sought to negate his own admission in the written statement it should not be
Clarification of Statement already made:
A prayer for amendment clarifying the statement already made can be allowed and where the statement has been made under a mistake, the court ought to be liberal in allowing amendment. In Aintha Swain’s case the defendant by mistake stated the year of execution of the promissory note to be 1963 instead of 1962. During the course of argument in appeal, the mistake transpired.
So, an application for amendment of the written statement was made. The defendant contended that the mistake had escaped his notice and was due to inadvertence. The appellate Judge having rejected the prayer, the matter came to the High Court, and the High Court held:
“…… It can hardly be denied that the defendant was not vigilant nor diligent. But the amendment cannot be rejected in all cases where there is a lack of vigilance or diligence on the part of defendant. The crucial test is whether what the defendant avers now is true or not.” In Surji Dibya v. Achytananda Biswal, G.K. Misra, CJ, held that the inconsistency was on account of inadvertence and it was not a case of unequivocal admission which the defendants were being allowed to resile from and the true position was supported by the plaintiff’s case.
Plaintiff is allowed to introduce through amendment averments regarding plaintiff’s readiness and willingness to perform his part of contract in a suit for specific performance of contract for sale. This causes no change in cause of action.
In a suit for declaration of title and confirmation of possession, the defendants filed an application for amendment of written statement and took the stand thereby that the property of both the branches (the ancestors of defendants) was never partitioned and the branch which transferred the property to the plaintiffs had only two annas share in the property.
Earlier they had taken the stand in the written statement that though there was a partition, the branch which transferred the property to the plaintiff had got 8 annas share in the property. Thus the stand taken in the amendment conflicted with the stand already taken. Moreover, the defendants did not plead for substitution of stand nor did they plea that the stand already taken by them was erroneous.
Thus the amendment proposed was a complete volte face and both the stands could not co-exist. It was more so when those were not alternative pleas. Further, there was no plea of inadvertence or mistake.. The amendment sought in such circumstances was rejected.
Where the plaintiff in second appeal is allowed to amend his plaint, the defendant must also be given an opportunity to file an additional written statement before passing a decree.
Withdrawal of Admission:
An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.
In a suit for partition the defendants admitted 7 out of 10 properties as joint family property in, written statement and contested only 3 properties as exclusively belonging to them. Later on they wanted to withdraw through amendment earlier admission made regarding 7 properties. Such withdrawal of admission would displace plaintiff’s case and his right to get preliminary decree. Hence amendment was not allowed.
Firm Sriniwas Ram Kumar v. Mahabir Prasad:
As stated above, a plaintiff may rely upon different rights alternatively and there is nothing in the Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief there under in the alternative.
Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet.
But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.
A demand of the plaintiff based on the defendant’s own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.
Amendment mandatory—when necessary to determine real controversy:
It is clear from the above that while under the first part of Rule 17 of Order VI, it is left to the discretion of the court to amend or not, the second part of the rule makes it imperative on the court to make all such amendments as may be necessary for determining the real matter in controversy between the parties.
As soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy it is as much a matter of right on his part, as it is duty on the part of the court, to have it corrected, especially when the amendment does not cause any prejudice to the other party or substitute a totally new case for the original case.
Ganpat Singh v. Sher Bahadur Singh:
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.
The main point in considering whether leave should be granted to any party to amend his pleading is whether the amendment is necessary for the determination of the real question is controversy. But the court will not allow an amendment that would involve a complete change of front in the defence.
Courts must be careful not to allow a Volte face which would completely change the complexion of the pleading and confront the defendant with a surprise attack, for which he cannot be expected to be prepared.
Appellate Court:
An amendment of the pleadings can be allowed at any stage of the proceeding where the sole result of the refusal would be to drive the plaintiff to a separate suit, to avoid which is one of the principal objects of the much wider rule as to amendment.
An amendment which is not of such a character as to be objectionable either as changing the subject-matter of the suit or as being otherwise unfair is within the competence of the court under Order VI, Rule 17, and can be made even in appeal.
A court of second appeal can order amendment of a plaint, provided it does not prejudice the accrued right of the party and the conduct of the applicant or the error is bona fide. But amendment involving an entire change in the form and character of a suit cannot be allowed in second appeal.
The rules with regard to amendment were discussed elaborately by Batchelor, J. in Kisandas Rupchand v. Rachappa Viihaba Shiwant. As to the principles of amendment, his lordships observed: “They are contained in Order VI, Rule 17 of the Code, which is substantially identical with Order XXXVIII, Rule 1, of the English Rules of the Supreme Court.
From the imperative character of the last sentence of the rule it seems clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions, viz., (a) of not working injustice to the other side (b) and of being necessary for the purpose of determining the real questions in controversy between the parties.”
His lordships added that the case appeared to him to afford an instance of that undue technicality, that excessive attention to form and deficient attention to “the real questions in controversy between the parties”, which occasionally besets the subordinate courts and hampers the success of their work in a country where the competent legal advice is not always readily obtainable.
His lordship did not for a moment suggest that forms should be disregarded, and he admitted that no hard and fast line could be drawn for all cases, but it did seem to him that the importance of forms was sometimes set in very incorrect perspective so that on occasions the trial of a suit was apt to wear too much the appearance of a resolute attempt by the presiding Judge to come at justice on “the real questions in controversy between the parties”.
There must, of course, be no over-reaching or surprise of one party by the other and it is very important that parties should be kept to their pleadings, and not allowed to alter their case according to their shifting interest in Courts of Appeal; but this is pre-eminently a reason why the trying court should spare no pains to ascertain precisely the real character of the dispute and of the case made by each party.
Nothing is more calculated to imperil the justice of a case than negligence or carelessness in these essential preliminaries, as nothing conduces more to a right decision than to have these points firmly determined at the outset.
Subject to these and similar considerations, the mofussil courts would do well to bear in mind, added his lordship, that the rules of procedure have no other aim than to facilitate the task of doing justice.
On this subject the following words of Lord Penzance in Randall v. Hamilton, should have perennial interest for Subordinate Judges trying original suits: “Procedure”, said his lordship, “is but the machinery of the law after all the channel departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even extinguish, legal rights, and is thus made to govern where it ought to subserve.
” Directions not less emphatic and of even closer application to the subject under notice were conveyed by the Judicial Committee in Hanoomanpersaud Pandey v. Musumat Babooee, Munraj Koonweree, where their lordships laid down “that it is of the utmost importance to the right administration of justice in these Courts” that is, the Courts in India, “that should be constantly borne in mind by them that by their very constitution they are to decide according to equity and good conscience; that the substance and merits of the case are to be kept constantly in view; that the substance and not the mere literal wording of the issues is to be regarded; and that if, by inadvertence or other cause, the recorded issues do not enable the Court to try the whole case on the merits, an opportunity should be afforded by amendment, and, if need be, by adjournment, for the decision of the real points in dispute.”
It is well settled law that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.
There is no injustice if the other side can be compensated for by costs. A plaintiff may add a new cause of action and the defendant may add a new defence. Even a new case may be allowed to be introduced. The court has to take into consideration even subsequent events. A further principle which is also usually considered is that as far as possible multiplicity of suits should be avoided.
Where, therefore, the plaintiff sought permission merely to add a prayer for possession which did not alter the cause of action or change the essential nature of the suit, and the effect of the refusal of the amendment would have been to drive the plaintiff to a fresh suit, the amendment should be allowed.
The object underlying Order VI, Rule 17, C.P.C. is obviously to avoid multiplicity of litigation and if the object can be achieved by making an amendment in the pleadings in the suit which is already in progress, the courts should be liberal in permitting necessary amendment sought to be made instead of leaving them to file a separate suit subsequently especially when the other side can be adequately compensated by awarding costs.
Amendment about events during pendency of case:
If something has happened during the pendency of the litigation that can certainly be permitted to be brought on record by way of amendment under Order VI, Rule 17, C.P.C.
In a suit for a prohibitory injunction restraining the defendant for making construction on a joint site, a decree for mandatory injunction cannot be granted without amendment of the plaint. Such amendment can be allowed even at the stage of second appeal.
Amendment changing nature of case—not allowed.
M/s. Modi Spinning and Weaving Mills Ltd. v. M/s. Ladha Ram and Co:
The defendant appellants approximately three years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for amendment of two paragraphs and for substitution of two new paragraphs.
The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court was that the defendants wanted to resile from admissions made in one of the paragraphs. The trial court said that the repudiation of the clear admission was motivated to deprive the plaintiff of the valuable right accrued to him and it was against law.
The High Court on revision affirmed the judgment of the trial court and said that by means of amendment, the defendant wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.
Their lordships of the Supreme Court observed that the decision of the trial court was correct. The defendants could not be allowed to change completely the case made in the written statement and substitute an entirely different and new case.
It was true that inconsistent pleas could be made in pleadings but the effect of substitution of the paragraph was not making inconsistent and alternative pleadings but it was seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement.
If such amendments were allowed the plaintiff would be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court. For the foregoing reasons the appeal must fail.
When the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, courts cannot allow such application for amendment.
A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a new case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case.
Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened.
It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances. This is more so when the application for amendment is an afterthought and, therefore, lacks bona fide.
New Plea—Not changing nature of case—Amendment Allowed:
There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the well-known principles subject to which amendment of pleadings is usually granted.
Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the court.
Grounds for Refusal of Amendment mala fide and change of nature of Case:
An application for amendment filed under Order VI, Rule 17, C.P.C. is liable to be dismissed on well recognised grounds, which are either that the amendment is mala fide or that it would materially change the nature of the suit.
An amendment can also be refused if the court finds that the amendment, if allowed, will permit the parties to resile from the admission made. In the suit the plaintiffs had simply asserted that since their claim had become barred by time, they did not want to make a claim of the same in the plaint.
This was not an admission of any fact, and permitting the plaintiff to amend the plaint, filed even at the stage of the revision, would not have resulted in allowing them to resile from any admission made by them.
It is also settled that while deciding an application for amendment, a court is not entitled to consider the truth or falsity of a statement through the amendment. If an amendment is false, the plaintiff will fail in the suit. As such, the court below was wrong in examining the merits of the amendment and rejecting the same on the ground.
Plea barred by res judicata:
A plea which is barred by principles of analogous to res judicata cannot be allowed to be raised by way of amendment in second petition. As first petition was filed challenging examination and re-evaluation of answer books.
By interim orders the answer books were re-valued and petitioner was called for interview but was not selected and his name was placed in reserve list. Second writ was filed challenging the selection. Petitioner sought to raise plea that key answer paper was wrong which ought to have been raised in first petition. Such plea was not allowed to be raised by amendment as it is barred by principles analogous to res judicata.
Amendment to catch up with evidence:
It is improper to allow repeated amendment applications in election petition. It is more improper to permit pleadings to be amended to bring them in conformity of evidence already taken on record.
Granting of amendment of plaint and seeking to introduce alternative relief of mandatory injunction for payment of specified amount is bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding in the appellate court or the second appellate court.
Costs of Amendment and opportunity to meet Amendment:
M/s. Ganesh Trading Co. v. Moji Ram:
It is clear from rules 2, 4, 5, 6, 7 and 17 of Order VI, C.P.C. that provision for the amendment of pleadings, subject to such terms as to costs and giving to all parties concerned opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them.
Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure the rights accrued.
It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the court will refuse to permit it if amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time.
But mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit.
If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission had been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action.
This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent.
Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the court should, ordinarily, refuse prayers for amendment of pleadings.
Alteration of cause of Action—effect:
In Ganesh Trading Co. v. Moji Ram, the Supreme Court observed:
“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
” In that case an application for amendment of the plaint with a view to altering the cause of action itself and to introduce indirectly through an amendment of the pleadings an entirely new or inconsistent cause of action in place of what was originally there, was rejected by the High Court and the plaintiff’s revision petition to the High Court did not meet with success.
The Supreme Court granted the application for amendment simultaneously observing that even though it would not ordinarily interfere with interlocutory orders, the Court felt compelled in order to promote uniform standards and views on questions basic for a sound administration of justice and in order to prevent very obvious failures of justice, to interfere even in such a matter in a very exceptional case such as the one that was before the Court.
In Haracharan v. State of Haryana, the Supreme Court, while referring to the aforesaid decision of Ganesh Trading Co., observed that the position before them was far better than the situation was before the Court in the aforementioned case.
The appellant had sought amendment relying upon the decision of the High Court itself and the decision provided a comparable yardstick for effectively disposing of the real controversy before the High Court proceeded to dispose of the appeal.
Accordingly the Supreme Court while allowing the appeal and setting aside the order of the High Court rejecting the application granted, in the interest of justice, the amendment application and remitted to the High Court with permission to the respondent to raise any contention permissible in law and for disposal of the appeal on merits.
Subsequent Events—Court takes Notice to do full Justice:
In M/s. M. Laxmi and Co. v. Dr. Anand R. Deshpande, it was held:
“It is true that Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate, by subsequent events, the Court can take notice of such changes.
If the Court finds that the judgment of the Court cannot be carried into effect because of changes of circumstances the Court can take notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event.
If the property which is the subject-matter of suit is no longer available the Court will take notice of such event. The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to sub serve the ends of justice.”
In Pasupuleti Venkateswarlu v. Motor and General Traders, the Supreme Court observed:
“It is basic to our procedural jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process.
If a fact, arising after the list has come to the Court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy.
Equity justifies bending the rules of procedure, where no specific provisions or fair play is violated, with a view to promote substantial justice, subject, of course, to the absence of other disentitling factors or just circumstances.
We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.
” In Rameshwar v. Jot Ram, the Supreme Court observed:
“It is basic to our procedural jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right.
The Court’s procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. Courts can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances. Rights vested by virtue of a statute cannot be divested by this equitable doctrine.”
The above principles were followed in Ayesha Khatoon v. Durga Sahaya. In the latter case the Calcutta High Court observed that no doubt the plaintiff was seeking to introduce a cause of action which was not in existence when the suit was filed, but if the courts are empowered to take note of the subsequent facts, there is no reason why the plaintiff should be prohibited from taking advantage of such cognizance by amending his plaint. The amendments asked for were expected to shorten the proceedings and to prevent multiplicity of proceedings.
Costs of Amendment:
It is well settled that while deciding a matter the Court should as far as possible take into consideration subsequent events so as to do full justice to the parties.
The well settled law is that the provisions for the amendment of the pleadings, subject to such terms as costs and giving all parties concerned necessary opportunity to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. In the words of Lord Buckmaster in Ma Shwe Mya v. Maunh Mo Hnaug:
“All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to the purpose, so that full power of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another nor to change, by means of amendment, the subject-matter of the suit.”
Amendment causing Prejudice and Injury—Not Allowed:
The said principle is however subject to the countervailing rule of practice that an amendment will be refused when if it were made, it will result in prejudice or injury which cannot be properly compensated by costs. As observed by the Judicial Committee in Charan Das v. Amir Khan:
“That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases, see, for example, where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one.”
Ordinarily, therefore, an amendment should not be allowed where a valuable right has accrued to the opposite party by lapse of time.
Discretion-New cause of action or Change of nature of suit:
Another limitation on the exercise of discretion by the Court which is equally well recognised is that a party should not be permitted to substitute a new cause of action or to change the nature of the suit except where the Court thinks it just and necessary. The legal position in this respect was enunciated by the Supreme Court in A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation:
“The general rule, no doubt, is that a party is not allowed-by amendment to set up a new case or a new cause of action particularly when a suit on a new case or cause of action is barred: Weldon v. Neal. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.”
Unnecessary, irrelvant or vexatious Amendment:
Under Order VI, Rule 17, the court was bound to examine if the amendment sought was “necessary for the determination of the real question in controversy between the parties” and to disallow if it was unnecessary, irrelevant or vexatious.
It could not award costs and allow amendment without deciding whether in the case the point sought to be raised by the amendment arises for determination or not, as otherwise it would be deciding irrelevant questions and the trial of the suit or proceeding would become iterminable.
Unnecessary Amendment:
Where an issue can be pressed without resorting to express amendment of plaint, such amendment is unnecessary and can be refused by the court. The preliminary issue was whether the defendant was benamidar and property belonged to joint family.
Amendment was sought that the defendant was trustee of property on behalf of joint family. The legal effect of benami transaction and defendant being transfer of property can be pressed even without express amendment of plaint. Suit amendment was unnecessary at all.
Plaint was returned for presentation to proper court. In such plaint is not necessary to seek amendment of plaint. It is treated to be a fresh plaint. It cannot be dismissed for the reason that it contained averments not made in original plaint.
The Court should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side: Haridas Aildas Thadani and others v. Godraj Rustom Kermani.
Provisions for the amendment of pleadings subject to such terms as to costs and giving to all parties concerned necessary opportunities to meet exact situations resulting from amendment are intended for promoting the ends of justice and not for defeating them Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties and to prevent deviations from the course which litigation on particular causes of action must take. An admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.
Prejudice to another case by Amendment—It cannot be refused:
The mere fact that a co-defendant may be prejudiced in some other litigation on account of the amendment sought is not really relevant for disposing of the prayer for amendment made in the suit. Courts, it is settled law, are generally liberal in permitting the amendment of pleadings unless any irretrievable harm is caused to the opposing party.
Addition of facts already on Record—Amendment allowed:
Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. Processual justice requires that the events and developments subsequent to the institution of proceedings must be taken into consideration in appropriate cases to promote substantial justice.
Meaning of ‘Cause of Action’:
In A.K. Gupta and Sons v. Damodar Valley Corporation, the Supreme Court while dealing with the ’cause of action’ observed as follows:
“The expression ’cause of action’ in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cook v. Gill, in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. and it seems to us to be the only possible view to take. Any other view would make the rule futile.”
Least Interference by Revisional Court:
The court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons or compelling circumstances.
Amendment helpful in determination of real issue between parties:
Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
Incorporation of other essential facts—allowed:
An amendment to the plaint was sought to be incorporated in the plaint to the effect that the plaintiff has performed, or has been willing to perform his part of the contract, which was not specifically averred in the plaint and therefore with a view to strengthen the pleading, amendment of the plaint was sought to have the said fact specifically incorporated in the pleadings. Addition of this fact would not bring about a new cause of action.
Therefore, the very valuable right accrued to the defendant on account of insufficient pleading would not be taken away if the amendment is allowed. The very fact that the suit is for specific performance is more than sufficient to presume that the plaintiff has pleaded some of the essential facts bringing out the cause of action and if that be so, the application seeking amendment of the plaint, incorporating another essential fact, cannot be said to be an attempt to bring out a cause of action which was conspicuous by its absence in the plaint originally filed.
Adequate Compensation by costs—Amendment allowed:
The object underlying Order VI, Rule 17, C.RC. is obviously to avoid multiplicity of litigation and if the object can be achieved by making an amendment in the pleadings in the suit which is already in progress, the courts should be liberal in permitting necessary amendment sought to be made instead of leaving them to file a separate suit subsequently especially when the other side can be adequately compensated by awarding costs.
The question of amendment of the pleadings should be considered in such a manner as to enable the court in determining the real question in controversy between the parties. The amendment should not be allowed in case the nature of the case is changed or it takes away the effect of the admission already made by the party concerned or it causes substantial prejudice to the other side.
Application for amendment in written statement allowed on payment of costs:
Where there was agreement of sale of undivided property. Applicant was found not to be entitled for decree of specific performance of agreement of sale in share of property in his favour. Suit for partition filed by defendant was pending. Plea was taken by applicant that he had spent huge sum for conducting several litigations to protect property and, to have made valuable improvements in property.
However, said claims were not included in his written statement in suit for partition as most of litigation had terminated long after filing of written statement. Prayer was made by applicant for amendment of written statement to include aforesaid claims made by him. But said application for amendment, was filed long after filing of appeal against decree in suit for specific performance. Such application was allowed on payment of costs.
Amendment of written statement could not be allowed being inconsistent with main plea:
Where defendant pleaded that he was co-owner of property seeking to amend written statement claiming acquisition of property by adverse possession and which was a better status than a co-owner. Held, that as amendment was inconsistent with main plea, hence, it could not be allowed. Moreover, it was belated appeal.
Amendment of plaint allowed in suit for partition and mesne profits:
Where amendment was sought to propound Wills by defendant. Application was filed before the commencement of trial. Said Wills were claimed to have been discovered upon death of testator. Onus of proving said Wills rested on defendants.
Held, that as the plaintiff shall have opportunity of questioning Wills and raising objections regarding their genuineness, as its effect of Will was that it sought to deprive the plaintiff of their share, hence, said plea set up was not inconsistent with plea of property of being self acquired property of testator, hence said application was allowed subject to cost.
Alternate Pleas—Allowed:
Inconsistent and alternative pleas:
It is settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. In written statement definite stand was taken that the defendant had entered into agreement of sale with the plaintiff. Subsequently an application for amendment sought to modify it that defendant had entered into agreement with plaintiff for development of suit land.
High Court allowed the amendment. High Court has committed no material irregularity in exercising its power under Section 115 C.P.C. in permitting amendment of the written statement.
Alternative relief:
Amendment in plaint to incorporate alternative relief is allowed.
When during the pendency of the suit for declaration of possession, the plaintiffs filed an application for amendment of plaint for relief in alternative for possession as owners of the suit land and in case they are not found to be in possession, a decree for possession be awarded, the prayer sought being not based on different cause of action, the application should be allowed.
Contrary Plea when not allowed:
Amendment cannot be where it seeks to introduce mutually destructive pleas, especially when no explanation is given to raise such pleas at belated stage.
Serious Injustice:
The test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other side. In the present case the plaintiff sought by way of amendment to insert a relief for recovery of possession. Neither the nature of the suit was altered nor did any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arise.
The District Judge allowed the amendment having clearly found that the amendment would not cause any grave or serious prejudice to the defendant. In the circumstances the High Court erred in law in interfering in revision by reversing the discretionary order of the District Judge.
Amendment not allowed—Bar of limitation affected:
Amendment taking away the defendant’s legal right to plead bar of limitation should not be allowed unless there are special considerations.
Time barred:
The relief of specific performance could have been asked in original suit filed for relief of permanent injunction restraining defendants from alienating, encumbering, setting, disposing of, or in any way dealing with the property.
The plaintiffs have expressly admitted in original plaint that the defendants have refused to act in accordance with terms of contract. Relief of specific performance cannot be permitted to be added by amendment after lapse of seven years when it has become time barred.
Time barred Relief:
Plaintiff-appellant in appeal cannot be allowed to amend plaint to include such unsought relief which became time barred at that stage during pendency of proceeding.
In a suit for mandatory injunction to comply with requirements of agreement for sale of immovable property, during pendency of suit amendment for specific performance of contract after limitation of three years cannot be allowed. Such cause of action was required to be stated initially in the plaint and after expiry of period of limitation it cannot be allowed to plead through amendment.
Beyond Limitation:
Amendment of plaint cannot be allowed where it defeats the right of defendant acquired by bar of limitation and filed beyond period of limitation.
The Court is not supposed to go into merits and demerits of the amendment and express opinion as that can be the subject-matter of scrutiny after amendment is allowed.
Amendment of written statement:
In the appeals the appellant-defendant wanted to amend the written statement by taking a plea that in case he is not held a lessee, he was entitled to the benefit of Section 60(b) of the Indian Easements Act, 1882. Learned counsel for the appellant is not interested in incorporation of the other pleas raised in the application seeking amendment.
The plea sought to be raised is neither inconsistent nor repugnant to the plea already raised in defence. The alternative plea sought to be incorporated in the written statement is in fact the extension of the plea of the respondent-plaintiff and rebuttal to the issue regarding liability of the appellant of being dispossessed on proof of the fact that he was a licensee liable to be evicted in accordance with the provisions of law.
The mere fact that the appellant had filed the application after a prolonged delay could not be made a ground for rejecting his prayer particularly when the respondent-plaintiff could be compensated by costs.
The Court did not agree with the finding of the High Court that the proposed amendment virtually amounted to withdrawal of any admission made by the appellant and that such withdrawal was likely to cause irretrievable prejudice to the respondent.
Amendment should not be allowed if it is likely to cause such injury to the other side which cannot be compensated in costs such as claim which is barred on the date of application or if it has the effect of taking away the legal right accrued to the other side by reason of lapse of time.
The amendment of the written statement which seeks only to clarify and bring on record the relevant details connected with facts already stated cannot be refused. Even new assertions or new facts can be introduced in the written statement by way of amendment if they either do not change the defence already originally taken or change the complexion of the suit.
Amendment of pleading:
The order in question by which amendment of plaint was allowed to plead subsequent facts is not revisable by the High Court by exercising powers under Section 115 of C.P.C. as none of the two conditions mentioned in clauses (a) and (b) of the proviso to section 115 was satisfied.
Granting of Amendment:
A discussion of the above judicial decisions establishes the principle that an amendment can be allowed by the court at any stage provided it satisfies the following conditions:
(1) That the proposed amendment does not work injustice to the other side, which, as said above, is not injustice if it can be compensated in money;
(2) That the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties;
(3) That the proposed amendment is not such as to turn a suit of one character in a suit of another character; and
(4) That there is bona fides on the part of the applicant.
Refusal of Amendment:
(1) Leave to amend will be refused when the amendment is not necessary for the purpose of determining the real questions in controversy between the parties, which happens where the amendment is merely technical or useless and is of no substance.
(2) Leave to amend will be refused where the effect of the amendment would introduce a totally different, new and inconsistent case which will require further evidence. An amendment of this character could not bring out the real issues in the suit.
(3) Leave to amend will be refused where the amendment would cause injustice to the opposite party as cannot be compensated for by imposing terms as to costs or otherwise.
(4) Leave to amend will be refused where the effect of the proposed amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time. The plaintiff will not be allowed to amend his plaint by adding a fresh claim or a new cause of action, which is barred by limitation at the date of the application for amendment though not barred at the date of the suit.
(5) Leave to amend will be refused where the plaintiff’s suit would be wholly displaced by the proposed amendment.
(6) Leave to amend will be refused when the party was fully aware of the facts on which he seeks to put forward a new case.
(7) Leave to amend will be refused where a plaintiff bringing a suit on a certain cause of action seeks amendment to introduce a new and independent cause of action arising subsequent to the institution of the suit.
(8) Leave to amend will be refused where the application for amendment is not made in good faith.
If a fresh suit on the amended claim is barred by the law of limitation on the date of the application, the amendment should not normally be allowed. Amendment to be allowed must be such that it should not cause injustice to the other side. It must be necessary for the purpose of determining the real questions in controversy between the parties.
Amendment should not be allowed if it is likely to cause such injury which cannot be compensated in costs such as a claim which is barred on the date of the application, etc. Amendment should not be allowed if it has got the effect of taking away the legal right accrued to the other side by reason of lapse of time.
Effect of amendment:
Where a plaint is allowed to be amended it will be effective from the date of the institution of the suit or the presentation of the plaint or application.
Amendment of opponent’s pleadings:
The court may also at any stage of the proceedings order to be struck out or amended any matter in any pleading which may be : (i) unnecessary, scandalous, frivolous, or vexatious, or (ii) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (iii) which is otherwise an abuse of the process of the court. (Order VI, Rule 16). The rule enables a party to have the opponent’s pleading amended or struck out on the above conditions applying to a case. Where a plaint is verbose, vague and unintelligible the court may either strike it off or order it to be amended. Pleadings disrespectful to the court may as well be struck out.
Failure to amend after obtaining order:
Where a party after having obtained leave to amend does not amend accordingly within the time allowed by the order, or in the absence of any specified time within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such time or of such fourteen days, as the case may be, unless the time is extended by the court. (Order VI, Rule 18). Failure to amend does not involve determination of the suit or rejection of the original plaint, but only means forfeiture of the right to amend, unless the time is extended by the court.
Their lordships of the Supreme Court while dealing with Order VI, Rule 17, relating to amendment of pleadings and section 35 relating to imposition of costs observed in Bijendra Nath Srivastava v. Mayank Srivastava, that the principle of estoppel which precludes a party from assailing an order allowing a petition for amendment subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed.
In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order.
In suit for specific performance of contract first contract was not concluded contract. High Court gave opportunity to plaintiff to amend the plaint incorporating that there was concluded contract at second meeting between the parties. The plaintiff refused to amend the plaint. Hence, no relief can be granted to the plaintiff on the basis of such second agreement.
