Author: Sivapuram V.L. Thejaswini Student, Alliance University
Introduction :
Pleadings generally means the statements which lays the foundations for a suit. It includes both the plaint and the written statement. Pleadings also include rejoinder, counter-claim, set-off and additional written statement etc.,
Amendment of pleadings means an amendment made in a specific/particular case by the court to the pleadings of either of the parties in order to find the dispute going on between the parties.
Importance of Amendment of pleadings :
This is primarily to make the suit more precise so as to have an effective & proper decision made in the suit.
Sometimes even after application of due diligence by the parties, they may not be able to put up certain cause of action, relief (or) specific matter in issue which is very important/essential to make a proper decision in the suit.
So if such matters, issues are not raised initially then it becomes problematic for the parties as these are not raised at the earliest possible opportunity/first instance.
Thus, to resolve this problem the civil court has power to allow the parties to amend, alter, modify & change their pleadings at any stage of proceedings.
It is mainly to serve the ends of the justice.
Provision under C.P.C, 1908 – Amendment of pleadings is provided under Order VI Rule XVII. It provides discretion to the court to alter/amend the pleadings at any stage of the proceedings. Amendment is done before the judgement has been passed on application of either of the parties.
Proviso to this Rule XVII – The word “shall” which is used in this proviso makes it compulsory for the courts not to allow any application by the courts to amend the pleadings if once the trial has been commenced. That is after the settlement of issues, only if the court comes to a conclusion even after the application of due diligence the parties were unable to raise these issues before the commencement of trial, only then the court allows for the amendment of pleadings.
The court may not allow for the application of amendment of pleadings after the trial has been started unless it concludes that parties has not raised the relevant facts before the commencement of the trial.
This proviso provides the discretionary power to court to decide on the matter of amendment of pleadings after the trial has been commenced.
If the court gives permission and allows the parties to amend then they have to amend such pleadings with in the time fixed by the courts. If the court does not fix any time as such then it has to be amended within 14 days from the date of such order. Once the time has been lapsed the parties may not be allowed to amend the pleadings unless the time has been extended by the court.
Judicial Approach :
In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors., it was decided that Order VI Rule XVII has two parts. The first part consists of “may” which is of discretionary nature. So court has the power to amend the pleadings here. The second part consists of “shall” which is of imperative nature. It provides the duty to the court to allow for the amendment of pleadings which are necessary to determine the real question in dispute between the parties[1].
In Weldon v. Neal, the main dispute here is sometimes the parties may have been negligent (or) they may have acted as bonafide and if the court is satisfied that in order to serve the ends of justice then they may allow for the amendment of pleadings.
Amendment shall be allowed with the payment of costs if such damages caused to the opposite party can be compensated & reparable. If such payment of costs is not possible that is if they cannot be compensated & irreparable then such amendment shall not be allowed.
Principle – There is no injustice if the parties can be compensated by costs
After such amendment, the court will clearly examine the opposite party i.e., the extent to which such party may get affected after allowing such amendment of pleadings[2].
If the opposite party can be compensated in costs, then it is not problematic (or) it does not cause injustice to amend the pleadings. It could not be allowed only when proper compensation cannot be allotted (or) if it is not possible to determine the issues between the parties, only then amendment of pleadings will not be allowed. All those amendments which are necessary to determine the issues/controversy between the parties have to be allowed. It should not be checked whether those errors are accidental (or) not[3].
In Andhra Bank v. Abn Amro Bank N.V. and Ors, it was held that if during the course of proceedings some rights were allotted to the parties and if the amendment of pleadings were also allowed then such amendment may result into injustice to such parties. Sometimes their rights also get defeated, even compensation by money can also not be done. So for these matters, amendments cannot be allowed.
Thus, the amendments are to be made only for adding, altering any matter in issue/relief claims which are very essential to determine the issues between the parties[4].
In Sampath Kumar v. Ayyakannu, it was held that while the court conducts a hearing on the application for amendment of pleadings, then the court shall not look into the merits of the case[5].
In State of Andhra Pradesh & Ors. v. M/S. Pioneer Builders, it was held by the Honorable Supreme Court that an order for the amendment of pleadings has to be a reasoned order (or) speaking order. That means the court has to record reasons either to allow (or) not allow for such amendment of pleadings[6].
In Salem Advocate Bar Association, Tamil Nadu v. Union of India, it was held by the Apex court that through the amendment of 2002, proviso has been added to Order VI Rule XVII. This proviso puts a burden upon the applicant to the amendment of pleadings that even after applying due diligence they could not raise such issues before the commencement of trial.
This is mainly to avoid/prevent the false & frivolous applications that delay the proceedings of the court. If there is an undue delay caused by the parties in seeking amendment then the parties has to explain the court with reasons for such delay[7].
Bramwell LJ in Tildesley v. Harper, held that – He would allow for the amendment of pleadings only if satisfied that the parties who are applying do not have any mala fide intention[8].
It was laid down by the Privy Council in Charan Das v. Amir Khan, that under certain exceptional circumstances the court may allow the amendments even if such claims are barred by the limitation period[9].
Key points :
No appeal can be filed against the order of Order VI Rule XVII. Only revision application can be made to the High court under Section 115.
Doctrine of relating back – Amendment of pleadings will relate back to the date when original pleadings were raised. That means those amended pleadings will be considered as if they were raised at the time of original pleadings. Under some circumstances, an act which is done at a later time will also be considered to have done at an earlier time.
This doctrine is generally to ensure that the limitation period is being followed which is very essential under CPC & also the Limitation Act of 1908.
Conclusion :
Thus, we can conclude that this amendment of pleadings under Order VI Rule XVII of CPC cannot be claimed by the parties as their sole right. Because it is mostly the discretion of the courts either to allow for such amendment (or) not. Even the courts cannot reject such application arbitrarily without any reasons as it is a speaking (or) reasoned order. Merely to delay the proceedings of the court the parties shall not make any false/frivolous applications to amend the pleadings.
[1] (2006) 4 SCC 385.
[2] (1887) 19 QBD 394, 396.
[3] Mulla, CPC (abridged) 14th edition, writer-Vinay Kumar Gupta, page 812.
[4] Appeal (civil) 2946 of 2007.
[5] Appeal (civil) 5839 of 2002.
[6] Appeal (civil) 6114 of 1999.
[7] AIR 2005 SC 3353.
[8] 1878 10 CD 393, 396
[9] 47 Ind App 255, (1925) 48 Cal 110.