TABLE OF CASES

PIRGONDA PATIL V. KALGONDA PATIL AIR 1957 SCR 559

CROPPER V. SMITH 1884 29CH D 700
USHA BALASAHEB V. KIRAN APPASO AIR 2007 SC 1663
JASWANT KAUR V SUBHASH PALIWAL AIR 2010 (2) SCC 124
REVAJEETU
BUILDERS
AND
DEVELOPERS
V.
NARAYANASWAMY AND SONS AND OTHERS AIR 2009 (10) SCC
84
VIDYABAI V.PADMALATHA AIR 2009 (2) SCC 409
ALKAPURI CO-OPERATION HOUSING SOCIETY LTD V.
JAATIBHAI NAGINBHAI AIR 2009 SC 1948
OLYMPIC INDUSTRIES V. MULLA HUSSAINY BHAI MULLA
AKBERALLYNAIR 2009 (9) SCALE 338
BALDEV SINGH V MANOHAR SINGH AIR 2006 SC 2832
WELDON VS. NEAL 1887 (19) QB 394 (CA)
SALEM ADVOCATE BAR ASSOCIATION V. UNION OF INDIA AIR
2003 (1) SCC 49
PANKAJAV. YELLAPPA AIR 2004 SC 4102
PAHELI RAUT V. KHULANA BEWA AIR 1985 ORI 165

INTRODUCTION
ORDER VI RULE 1CPC pleading is defined as plaint or written
statement.

According to Mogha, Pleadings are statements in writing drawn up and filed by

each party to a case, stating what his contentions will be at trial and giving all
such details as his opponent needs to k now in order to prepare his case in
answer.1
Pleadings are very important in civil cases. It is the duty of the lawyer to make a
proper pleading. Since a considerable percentage of litigants are either illiterate
or not conversant with law the duty of the lawyer of becomes more relevant
facts of the case from the client. All the details should be comprehended,
analysed and assimilated before drafting the pleadings. A good case may
sometimes be lost because of bad drafting.
Many times the party may find it necessary to amend his pleadings before or
during the trial of the case, fresh information has come to hand, interrogatories
have been fully answered by this opponent, documents whose existence was
unknown to him have been disclosed which necessitates reshaping his claim or
defence. Or his opponent may have raised some well-founded objections to his
pleadings, in which case it will be advisable for him to amend at once his
pleadings before it is too late.2

1. MOGHAS LAW OF PLEADINGS (1983) AT P.1

2. BULLEN, LEAK AND JACOB, PRECEDENT AND PLEADINGS (1959) AT P.61

KINDS OF AMENDMENTS
Order VI provides for two kinds of amendments-

 COMPULSORY AMENDMENTS
OPTIONAL AMENDMENTS

COMPULSORY AMENDMENTS compulsory amendments are those

which are ordered to be carried out in the pleadings of the parties at the
instance of opposite part. When the pleading of a party suffers from
defect or is incomplete, the opposite may have recourse to following
remedies (A) apply for further and better particulars
(B) apply for striking out or amending of the objectionable portion of the
opponents pleadings(ORDER VI RULE 16)
(C) apply for rejection of plaints.

OPTIONAL AMENDMENTS optional amendments are those which

are ordered to be carried out by a party in his own pleadings. When the
pleading of a party is defective or incomplete, her may himself move an
application to revise it in following ways(A) file further and better particulars
(B) file additional pleadings
(C) amend the pleadings(ORDER VI RULE17)

AMENDMENT OF PLEADINGS
In order to understand the whole concept of amendment of pleadings, we have
to analyse ORDER VI RULE 17 and 18 of CPC in a systematic manner. By

discussing different facets of the entire process of amendment of pleadings we

can have a clearer idea of the concept.

RULE 17
Order VI Rule 17 CPC provides for amendment of pleadings.
ORDER VI RULE 17 - 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 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.

OBJECTIVE OF RULE 17
So the object of the Rule 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 side. 3 Further in the
leading case of CROPPER V. SMITH4, 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 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.
3. PIRGONDA PATIL V. KALGONDA PATIL AIR 1957 SCR 559
4. 1884 29CH D700

WHO MAY APPLY

Normally, it is the plaintiff or the defendant who may apply for amendment of
his pleading i.e. plaint or written statement. Where there are two or more

plaintiffs or defendants in a suit, one or more plaintiffs of defendants may take

such application.

WHO MAY GRANT AMENDMENT

Ordinarily, it is the Trial Court which can grant an application for amendment of
plaint or written statement. But an Appellate Court or Revisional Court can also
grant such application for amendment of pleading. Even the Supreme Court
may grant an application for amendment of plaint or written statement in an
appropriate case.

LEAVE TO AMEND WHEN GRANTED OR REFUSED

It is very clear that no amendment can be made without leave of the court.
Therefore, the party desirous of amending the pleadings is required is apply to
the court for seeking permission to amend. The amendment may be allowed by
the court at any stage of proceedings. The amendment may be allowed even
after commencement of trial if the court is satisfied that in spite of due
diligence, parties could not have raised matter earlier. So there is no straight
jacket formula to refuse or grant leave sought for amendment of pleadings.
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 order.5 The
following judgements help to understand what are the points to be considered
while granting or refusing leave to amend pleadings :
In JASWANT KAUR V SUBHASH PALIWAL6, the apex court held that the power to
allow amendment of pleadings is very wide and is to be applied liberally.
5. USHA BALASAHEB V. KIRAN APPASO AIR 2007 SC 1663
6. AIR 2010 (2) SCC 124

In

REVAJEETU BUILDERS AND DEVELOPERS V. NARAYANASWAMY AND SONS AND

OTHERS7,

the Apex court held that on critically analysing both the English and

Indian cases, some basic principles emerge which ought to be taken into
consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes
he nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the
amended claims would be barred by limitation on the date of application. These
are some of the important factors which may be kept in mind while dealing with
application filed under Order 6 Rule 17. These are only illustrative and not
exhaustive."
The above principles make it clear that courts have ample power to allow the
application for amendment of the plaint. However, it must be satisfied that the
same is required in the interest of justice and for the purpose of determination of
real question in controversy between the parties.
In VIDYABAI V.PADMALATHA8, the Supreme Court held that primary duty of court is
to decide as to whether amendment sought is necessary to decide real dispute
between the parties.
In ALKAPURI CO-OPERATION HOUSING SOCIETY LTD V. JAATIBHAI NAGINBHAI 9, there
was delay of 18years in seeking amendment for impleadment of new party. The
plaintiff was seeking to alter basic structure of the suit. The amendment
7. AIR 2009 (10) SCC 84
8. AIR 2009 (2) SCC 409
9. AIR 2009 SC 1948

application was dismissed by Civil Judge, but High Court allowed the same.
The Apex Court held that High Court was not justified in allowing belated
application for amendment.

In OLYMPIC INDUSTRIES V. MULLA HUSSAINY BHAI MULLA AKBERALLY10, the Apex

Court held that courts should be more generous in allowing amendment of
counter statement of defendant than in case of plaint.
In BALDEV SINGH V MANOHAR SINGH11, there was delay of three years in filing
application for amendment of written statement. The Supreme Court held that
mere delay of three years in filing application for amendment of written
statement could not be the ground for rejection of the same when no serious
prejudice is shown to have been caused to the plaintiff so as to take away any
accrued right.
Similarly in English case, WELDON VS. NEAL12, A filed a suit against B for
damages for slander. A thereafter applied for leave to amend the plaint by
adding fresh claims in respect of assault and false imprisonment. At the date of
application , those claims were barred by limitation though they were within the
period of limitation at the date of the suit. The amendment was refused since the
effect of granting it would be to take away from B the legal right i.e., the
defence under the law of limitation and thus would cause prejudice to him.
The rule however is not a universal one and under certain circumstances such an
amendment may be allowed by the court notwithstanding the law of limitation.
Such leave to amend to amend may be granted at any stage of the proceedings.
Such an amendment applications are not governed by any law of limitation.
Leave to amend may be granted before, or at, or after the trial, or in First appeal,
or in Second appeal, or in Revision, or in the Supreme Court, or even in
execution proceedings, provided the decree is legal, lawful and enforceable, not
otherwise.
However proviso to Rule 17, as inserted by the Amendment Act 2002, declares
that court should not allow, such amendment after the commencement of the
trial unless it comes to the conclusion that in spite of due diligence, the matter
could not have been raised by the party before the commencement of the trial.
10. AIR 2009 (9) SCALE 338
11. AIR 2006 SC 2832
12. 1887 (19) QB 394 (CA)

It was held by the Hon'ble Supreme Court in SALEM ADVOCATE CASE113, that by
the 2002 Amendment, which added the Proviso to Order VI Rule 17, the burden
of proof has been shifted upon the applicant who makes the application for

amendment after the trail has commenced, to prove that despite due diligence he
could not have raised the issue before the commencement of trail. This is for the
purpose of preventing frivolous application to delay the proceedings.
NOTICE TO OPPOSITE PARTY AND REASONS TO BE

RECORDED
When an application for amendment is made by a party to a suit, an opportunity
should be given to the other side to file an objection against such prayer. An
order granting amendment without hearing the opposite party is not legal and
valid. But, if amendment is purely formal or technical in nature non-issuance of
notice is not material. Where the plaint is amended, notice of amended plaint
must be served on the defendant.
While deciding an application for amendment of pleading, the court must apply
its mind and should record reasons for allowing or not allowing the amendment.

LIMITATION
No period of limitation is prescribed either in code of civil procedure or in the
limitation act for making an application for amendment. On the contrary rule 17
permits a party to alter or amend his pleadings at any stage of the proceedings.
But it is well settled that ordinarily, an amendment of pleading shall not be
allowed if the effect of such amendment is to deprive a party of a right which he
has acquired by virtue of the law of limitation. Also keeping in mind the proviso
to Rule 17 inserted by the amendment act 2002.
In PANKAJAV. YELLAPPA,14 Supreme court in numerous cases has held that the
dominant purpose of allowing the amendment is to minimise the litigation,
therefore, if the facts of the case so permit, it is always open to the court to
allow applications in spite of the delay and laches in moving such amendment
application.
13. SALEM ADVOCATE BAR ASSOCIATION V. UNION OF INDIA AIR 2003 (1) SCC 49
14. AIR 2004 SC 4102

APPEAL

An order allowing or disallowing an application for amendment is neither a

decree as defined in section 2(2) nor an order appealable under section 104
read with order 43 of the code. No appeal therefore lies against such an order.
An order allowing or disallowing application, however, may be attacked in an
appeal from a decree.
FAILURE TO AMEND
ORDER VI RULE 18 - If a party who has obtained an order for leave to
amend does not amend accordingly within the time limited for that 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.
It does not however result in dismissal of the suit. Again the court has discretion
to extend the time even after the expiry of the period originally fixed. The
reason is simple, we cannot be oblivious of facts of life, namely, the parties in
courts are mostly ignorant and illiterate-unversed in law. Sometimes their
counsel are also inexperienced and not properly equipped, and the court should
endeavour to ascertain the truth to do justice to the parties.15

DOCTRINE OF RELATION BACK

Normally an amendment relates back to the pleading, but the doctrine is not
absolute, unqualified or of universal application. in appropriate cases, the court
may order that the amendment would take effect from the date an application
was made or the amendment was allowed and not from the date when the plaint
or written statement was presented.

15. PAHELI RAUT V. KHULANA BEWA AIR 1985 ORI 165

AMENDING
JUSTICE

PETITIONS

DELAYS

In a major judgment that aims to thwart attempts by a large section of litigants

locked in civil cases to delay proceedings for their benefit, the Supreme Court
has said that the provision in the Civil Procedure Code (Order VI Rule 7) that
allows improvement in averments could be done away with, as this is the most
misused law for dragging the proceedings indefinitely.
The already overloaded civil courts are compelled to defer hearings, which
causes delay in disposal of disputes, the court said. Applications for amendment
lead to further delay, it said. Civil courts must adhere to certain guidelines while
granting adjournments, the court said. And they must assess whether the plea is
counter-productive to speedy dispensation system. It must be decided whether
the plea for amendment to the petition is necessary for determining the real
disputed question.
A bench of justices Dalveer Bhandari and Harjit Singh Bedi also said that
discretion must be used judiciously and the courts concerned must compensate
the other party for unnecessary delay and inconvenience caused to him.
The purpose of imposing exemplary costs, the Bench explained, was to
discourage mala fide amendments designed to delay legal proceedings. It
compensates the other party for avoidable expenses on the litigation, which had
to be incurred by him for opposing the amendment and lastly to send a clear
message that the parties have to be careful while drafting the original
pleadings.
With a view to avoid delay and to ensure speedy disposal of suits, the
government deleted the provision in 1999 on Law Commissions
recommendation. But it restored the section succumbing to public uproar.

CONCLUSION

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

multiplicity of civil suits. But, the court cannot grant the leave of amendment at
its whims and fancies. There has to be certain criterion for granting or refusing
the leave, which has been laid down in case laws. It is a well known fact that
delay in justice is one of the basic flaws of the Indian Judiciary and amendment
of pleadings is a vital reason for that.
The Court must not refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide amendments. Amendment of
pleadings cannot be claimed as a matter of right and under all circumstances,
but the Courts while deciding such prayers should not adopt a mechanical
approach. The court should adopt a liberal approach in cases where the other
side can be compensated with costs. Normally, amendments are allowed in the
pleadings to avoid multiplicity of litigations.

BIBLIOGRAPHY

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