Amendment to pleadings: the

judicial trend
Project submitted to
Dr. Swati Mehta
(Faculty: DPC)

Project submitted by
Arindam Ghosh
Roll no.23
Semester Eighth
Submitted on 26 th February, 2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

TABLE OF CONTENTS

Amendment to Pleadings: The Judicial Trend

Acknowledgements

List of Abbreviations

Table of Cases

Scope & Objectives of Study

Research Methodology

Introduction

Chapters

9-17
Amendment to Pleadings
The Judicial Trend A Case Law Analysis

Conclusion & Suggestions

17

Bibliography

18

ACKNOWLEDGMENTS
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At the outset, I would like to express my heartfelt gratitude and thank my teacher, Dr. Swati
Mehta, for putting her trust in me and giving me a project topic such as this and for having the
faith in me to deliver. Thank you for an opportunity to help me grow.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and IT Lab that was a source of great help for the completion of this project.

- Arindam Ghosh

(Semester Eight)

List of Abbreviations
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Amendment to Pleadings: The Judicial Trend

1. Art
2. All
3. Bom
4. Co
5. Ch.D.
6. Del
7. Ed.
8. ILR
9. MLJ
10. OUP
11. PC
12. QB
13. QBD
14. SCC
15. SCR
16. Sec
17. v.
18. Vol.

Article
Allahabad
Bombay
Company
Chancery Division
Delhi
Edition
Indian Law Reports
Madras Law Journal
Oxford University press
Privy Council
Queens Bench
Queens Bench Division
Supreme Court Cases
Supreme Court Reports
Section
Versus
Volume

Table of Cases
1. Cropper v. Smith[1884] 26 Ch. D. 700
2. Kisandas v. Vithoba. (1909) ILR 33 Bom 644
3. Ganga Bai v. Vijay Kumar.1974 SCR (3) 882
4. Edevian v. Cohen...[1889] 41 Ch. D. 563
5. Steward v. North Metropolitan Tramways Co. .(1886) 16 QB 178
6. Weldon v. Neal. (1887) 19 QBD 394
7. Patasibai v. Ratanlal.1990 SCC (2) 42
8. Ramesh Kumar Agarwal vs. Rajmala Exports P.Ltd.& Ors(2012) 5 SCC 337
9. Surender Kumar Sharma v. Makhan Singh..(2009) 10 SCC 626
10. NER Administration, Gorakhpur v. Bhagwan Das (dead) by LRS (2008) 8 SCC 511
11. Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil1957 SCR 595
12. Usha Devi v. Rijwan Ahamd and Others (2008) 3 SCC 717
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13. Baldev Singh v. Manohar Singh2006 (4) Suppl. SCR 259
14. Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others. (2006) 4 SCC 385
15. Revajeetu Builders and Developers v. Narayanaswamy&Sons& Ors. (2009) 10 SCC 84
16. Rajkumar Gurawara v. S.K. Sarwagi& Co. Pvt. Ltd.& Anr. (2008) 8 MLJ 307 (SC)
17. Brij Kishore v. Smt. Mushtari Khatoon AIR 1976 All 399

SCOPE & OBJECTIVES OF STUDY

The scope of this topic is to study the amendment of pleadings under CPC and the approach that
the judiciary has shown from time to time. The objectives of the study are as follows:
To analyze the scope of amendment of pleadings under the provisions of CPC.
To analyze the approach of the Judiciary in amendment of pleadings A case law

analysis.

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RESEARCH METHODOLOGY
The scope of this topic is to study the amendment of pleadings under the provisions of CPC as
well as to analyze the approach of the Judiciary in amendment of pleadings.
This research is doctrinal in nature. Both, secondary and primary resources have been largely
used to gather information and data about the topic. Secondary resources include the
commentaries on the Civil Procedure Code, 1908 while primary resources include the actual act
and its bare provisions.
Books and other reference as guided by Faculty of DPC have been primarily helpful in giving
this project a firm structure. Websites, dictionaries and articles have also been referred.
Footnotes have been provided wherever needed, to acknowledge the source.

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INTRODUCTION
The most challenging problem facing the administration of justice in India is the backlog and
resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme
Court. One of the provisions which contribute to it is provision related to amendment of
pleadings given in Order VI, rule 17 of the Code of Civil Procedure.1
Pleadings are statement in writing delivered by each party alternately to his opponent, stating
what his contentions will be at the trial, giving all such details as his opponent needs to know in
order to prepare his case in answer. It is an essential requirement of pleading that material fact
and necessary particulars must be stated in the pleadings and the decisions cannot be based on
grounds outside the pleadings. But many a time the party may find it necessary to amend his
pleadings before or during the trial of the case. Rule 17 of Order VI deals with the provision of
amendment of the plaint. Order VI, Rule 17 of the Code of Civil Procedure deals with
amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and
1 Murali Manohar, Conveyancing and Pleading, (2004), EBC, p.89.
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Written Statement respectively. An amendment can be by way of altering something, modifying
something, deleting something.2
Order VI Rule 17 reads as under:
"17. Amendment of pleadings - The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may be just, and
all such amendments shall be made as may be necessary for the purpose of determining the real
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."3

Amendment to Pleadings
Amendment of pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written
statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an
answer. Order 6 of the Civil Procedure Code, 1908 deals with pleadings in general. A plaint is the
first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the relevant
allegations of fact that give rise to one or more legal causes of action along with a prayer for
relief. It can be seen that Rule 1 defines pleading; Rule 2 lays down the fundamental principles
of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.4
2 KS Gopalakrishnans Pleadings and Practice, (2004), ALT Publications, p.79.
3 Code of Civil Procedure, 1908.
4 C Agarwal & GC Mogha, Moghas Pleading, (2006), EBC, p.58.
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The Court may at any stage of the proceedings allow both party to alter or amend his pleadings
in such manner and on such terms as may be just and all such amendments shall be made as may
be necessary for the purpose of determining the real question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.5 The general power of amendment of the
court is under section 153 of CPC.
Amendment and its objectives
As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have
to be struck out. The paramount object behind Amendment is that the courts should try the merits
of the cases that come before them and should consequently allow all amendments that may be
necessary for determining the real question in controversy between the parties provided it does
not cause injustice or prejudice to the other side. Ultimately, the courts exist for doing justice
between the parties and not for punishing them, and they are empowered to grant amendments of
pleadings in the larger interest of doing full and complete justice to parties. Provisions for the
amendment of pleading are contained to promote end of justice and not for defeating them. 6
Further in the leading case of Cropper v. Smith, the object underlying the amendment of
pleadings has been laid down by Bowen, L.J.7
Leave to amend when granted
The Rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a
general rule, leave to amend will be granted so as to enable the real question in issue between
parties to be raised in pleadings, where the amendment will occasion no injury to the opposite
party and can be sufficiently compensated for by costs or other terms to be imposed by the order.

5 Justice Thakker, Code of Civil Procedure, (2007), EBC, p.96-98.

6 KS Gopalakrishnans Pleadings and Practice, (2004), ALT Publications, p.81.
7 [1884] 26 Ch. D. 700.
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In Kisandas v. Vithoba8, Batchelor J. observed as follows: All amendments ought to be allowed
which satisfy the two conditions:
1.
2.

of not working in justice to the other side, and

of being necessary for the purpose of determining the real questions in controversy
between the parties.

Therefore the main points to be considered before a party is allowed to amend his pleading
are: firstly, whether the amendment is necessary for determination of the real question in
controversy; and secondly, can the amendment be allowed without injustice to the other side.
Thus, it has been held that where amendment is sought to avoid multiplicity of suits, or where
the parties in the plaint are wrongly described, or where some properties are omitted from the
plaint by inadvertence, the amendment should be allowed.9
Leave to amend when refused
It is true that courts have very wide discretion in the matter of amendment of pleadings. But the
wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power and
no legal power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai v. Vijay
Kumar10, the Supreme Court has rightly observed: The power to allow an amendment is
undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the
law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is
governed by judicial considerations and wider the discretion, greater ought to be the care and
circumspection on the part of the court. Generally, in the following cases, leave to amend will
be refused by the court11:
1.

Leave to amend will be refused when amendment is not necessary for the purpose of
determining the real question in controversy between the parties. The real controversy

8 (1909) ILR 33 Bom 644.

9 Dr. Amit Sen, Legal Language, Legal Writing and Legal Drafting,(2006), Kamal Law House, p.64.
10 1974 SCR (3) 882.
11 GC Mathur, Shiva Gopals Conveyancing, Precedents and Forms, (2004), EBC, p.87.
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test is the basic test. In Edevian v. Cohen12, the application for amendment was rejected
2.

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

Leave to amend will be refused if it introduces a totally different, new and inconsistent
case or changes the fundamental character of the suit or defence. In Steward v. North
Metropolitan Tramways Co.13, the plaintiff filed a suit for damages against the tramways
Company for negligence of the company in allowing the tramways to be in a defective
condition. The company denied the allegation of negligence. It was not even contended
that the company was not the proper party to be sued. More than six months after the
written statement was filed, the company applied for leave to amend the defence by
adding the plea that under the contract entered into between the company and the local
authority the liability to maintain tramways in proper condition was of the latter and,
therefore, the company was not liable. On the date of the amendment application, the
plaintiff's remedy against the local authority was time barred.

3.

Leave to amend will be refused where the effect of the proposed amendment is to take
away from the other side a legal right accrued in his favour . Every amendment should be
allowed if it does not cause injustice or prejudice to the other party. In Weldon v. Neal14
the original action was simply for slander, and the plaintiff was non-suited. Later she
sought to amend her claim by setting up, in addition to the claim for slander, fresh claims
in respect of assault, false imprisonment and other causes of action, which at the time of
such amendment were barred by limitation though not barred at the date of the writ.

4.

Leave to amend will be refused where the application for amendment is not made in
good faith. The leave to amend is to be refused if the applicant has acted mala fide.
In Patasibai v. Ratanlal,15 it was observed that there was no ground to allow the
application for amendment of the plaint which apart from being highly belated, was
clearly an afterthought fur the obvious purpose of averting the inevitable consequence of

12 [1889] 41 Ch. D. 563.

13 (1886) 16 QB 178.
14 (1887) 19 QBD 394 at 395.
15 1990 SCC (2) 42.
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rejection of the plaint on the ground that it does not disclose any cause of action or raise
any triable issue.
Kinds of Amendments
There are mainly four kinds of amendments and they are as follows:
1. Amendment as to form signature, description of names etc,
2. Amendments as to substance scandalous or irrelevant things,
3. Amendment as to relief where several reliefs can be prayed and
4. Amendment as to parties to a suit.16
Types of Amendments
It is basically of two types which includes on the application of the opposite party in relation to
objectionable part (rule16) or it does not disclose any cause of action or where it abuses the
process of the court. Secondly, it can be suo moto by the court to file better particulars (Sec.151
of CPC to order plaintiff to amend plaint) or to file additional statements required for the
determination of the issue in the case. Other than this, there can be amendments by filing further
particulars or by additional pleadings.17The Ex-Chief Justice of India K.G. Balakrishnan has
revealed that about 39 lakh cases including 32 lakh civil and 7.71 lakh criminal are pending in
high courts. Subordinate courts have 76 lakh civil and 1.89 crore criminal matters to decide. The
average disposal per judge comes to 2,504 cases in the HCs and 1,138 in subordinate courts, if
calculated on the basis of disposal in 2008 and working strength of judges as on December 31,
2008.18

16 Arun Mohan, JUSTICE, COURTS AND DELAY (2009), Universal Publishing, p.78.
17 CR Datta, MN Das, D Souzas Conveyancing, (1999), Eastern Law House, p.24.
18 DK Gupta, A Guide to Conveyancing, Drafting and Deeds, Vol. 1, (2005), Kamal Law House, p.37.
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The Judicial Trend: A Case Law Analysis

Chief Justice P. Sathasivam and Justice J. Chelameswar of Supreme Court of India in the case of
Ramesh Kumar Agarwal vs. Rajmala Exports P.Ltd.& Ors.19 The court discussed the principles
governing the Amendment of pleadings and held that "It is clear that while deciding the
application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and
necessary amendments and should never permit mala fide and dishonest amendments. The
purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his
pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a
matter of right and under all circumstances, but the Courts while deciding such prayers should
not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in
cases where the other side can be compensated with costs. Normally, amendments are allowed in
the pleadings to avoid multiplicity of litigations."20
This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down
the principles to be applicable in the case of amendment of plaint which are as follows:
1.

Surender Kumar Sharma v. Makhan Singh,21 at para 5:

"5. As noted here in earlier, the prayer for amendment was refused by the High Court on two
grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one,
we are of the view that even if it was belated, then also, the question that needs to be decided is
to see whether by allowing the amendment, the real controversy between the parties may be
resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide
powers and unfettered discretion have been conferred on the court to allow amendment of the
pleadings to a party in such a manner and on such terms as it appears to the court just and proper.
Even if, such an application for amendment of the plaint was filed belatedly, such belated
19 (2012) 5 SCC 337.
20 MT Tijoriwala & SN Vimadalal, Law and Practice of Conveyancing, (2002), Snow White Publications,
p.62.
21 (2009) 10 SCC 626.
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amendment cannot be refused if it is found that for deciding the real controversy between the
parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in
making the application for amendment cannot be a ground to refuse the amendment."
2.

North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS,22 at

para16:

"16. Insofar as the principles which govern the question of granting or disallowing amendments
under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well
settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings.
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil23 which still holds the field, it was
held that all amendments ought to be allowed which satisfy the two conditions:
a. of not working injustice to the other side, and
b. of being necessary for the purpose of determining the real questions in controversy between
the parties. Amendments should be refused only where the other party cannot be placed in the
same position as if the pleading had been originally correct, but the amendment would cause
him an injury which could not be compensated in costs."
3.

Usha Devi v. Rijwan Ahamd and Others,24 at para 13:

"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in
Baldev Singh v. Manohar Singh.25 In para 17 of the decision, it was held and observed as follows:
(SCC pp. 504-05)
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be allowed when the trial of the suit has already
commenced. For this reason, we have examined the records and find that, in fact, the trial has not
yet commenced. It appears from the records that the parties have yet to file their documentary
22 (2008) 8 SCC 511.
23 1957 SCR 595.
24 (2008) 3 SCC 717.
25 2006 (4) Suppl. SCR 259.
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evidence in the suit. From the record, it also appears that the suit was not on the verge of
conclusion as found by the High Court and the trial court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the
limited sense as meaning the final hearing of the suit, examination of witnesses, filing of
documents and addressing of arguments. As noted hereinbefore, parties are yet to file their
documents, we do not find any reason to reject the application for amendment of the written
statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered
discretion on the court to allow an amendment of the written statement at any stage of the
proceedings."
4.

Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others,26 at paras 15 & 16:

"15. The object of the rule is that the courts should try the merits of the case 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.
16. Order 6 Rule 17 consists of two parts; the first part is discretionary (may) and leaves it to the
court to order amendment of pleading whereas the second part is imperative (shall) and enjoins
the court to allow all amendments which are necessary for the purpose of determining the real
question in controversy between the parties."27
5.

Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others,28 at para
63

"63. On critically analyzing 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;
26 (2006) 4 SCC 385.
27 Murali Manohar, Conveyancing and Pleading, (2004), EBC, p.93.
28 (2009) 10 SCC 84.
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(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.29
Conditions
The Honble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi
and Co. Pvt. Ltd. and Anr.30 It is settled law that the grant of application for amendment be
subject to certain conditions, namely,
(i) when the nature of it is changed by permitting amendment;
(ii) when the amendment would result introducing new cause of action and intends to prejudice the
other party;
(iii)

When allowing amendment application defeats the law of limitation. The plaintiff not only
failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits
his claim is liable to be rejected.
Procedure

29 Justice Thakker, Code of Civil Procedure, (2007), EBC, p.101.

30 (2008) 8 MLJ 307 (SC).
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The Procedure to be followed is quite simple and it includes that the application has to filed with
an affidavit and necessary particulars and then the court will serve notice on the opposite party
and apply its discretion whether to allow or not and give it period of 14 days to amend.
Effects
Where an amendment is allowed, such amendment relates back to the date of the suit as
originally filed. In Brij Kishore v. Smt. Mushtari Khatoon31 it was held that the Court must take
the pleadings as they stand after amendment and leave out of consideration the unamended ones.
The court must look to the pleadings as they stand after the amendment and leave out of
consideration unamended ones.32No appeal shall lie against an order allowing or disallowing
amendment of pleadings. Again where the party fails to amend under rule 18 of order 6 within a
period of 14 days then he shall not be allowed to amend later unless the court extends the time or
he pleads to extend it. The suit also cannot be rejected on this ground.
Conclusion & Suggestions
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.

31 AIR 1976 All 399.

32 GC Mathur, Shiva Gopals Conveyancing, Precedents and Forms, (2004), EBC, p.94-96.
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Before I conclude I would like to opine with the former Attorney General of India Mr. Soli
Sorabjee that
Justice delayed will not only be justice denied, it will also destroy the Rule of law, - a basic
feature of our Constitution. However, let us gird up the loins to protect and preserve it.

BIBLIOGRAPHY
Statute:
1. The Code of Civil Procedure, 1908.
Books:
1.
2.
3.
4.
5.

Murali Manohar, Conveyancing and Pleading, EBC, (2nd Edn. 2004).

KS Gopalakrishnans Pleadings and Practice, ALT Publications, (2nd ed., 2004).
C Agarwal & GC Mogha, Moghas Pleading, EBC, (17th Edn. 2006).
Justice Thakker, Code of Civil Procedure, EBC, (5th Edn. 2007).
Dr. Amit Sen, Legal Language, Legal Writing and Legal Drafting, Kamal Law House, (2nd

Edn. 2006).
6. GC Mathur, Shiva Gopals Conveyancing, Precedents and Forms, EBC, (6th Edn. 2004).
7. CR Datta, MN Das, D Souzas Conveyancing, Eastern Law House, (13th Edn. 1999).
8. DK Gupta, A Guide to Conveyancing, Drafting and Deeds, Kamal Law House,( 2nd Edn.
2005 ).
9. MT Tijoriwala & SN Vimadalal, Law and Practice of Conveyancing, Snow White
Publications, (4th Edn-2002).
Articles:
1. Arun Mohan, Amendment to pleadings: The approach of Judiciary, Indian Bar Review,
Vol.78, Issue-9 (2001).
2. K. Singhania, The Amendment of pleadings, Indian Bar Review, Vol.82, Issue-9 (2002).
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