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Amendment of a Pleadings

AN ASSIGNMENT ON

Amendment of Pleadings

SUBMITTED BY:

SHUBHAM TRIPATHI

ROLL. NO. 143070057 CLASS:7th SEMESTER, BOM.LL.B (HONS.)

OF

FACULTY OF LAW,

DR. SHAKUNATALA MISRA NATIONAL REHABILITATION UNIVERSITY,


LUCKNOW

IN

APRIL, 2017

UNDER THE GUIDANCE OF

PROF. DR. GULAB RAI

(ASSISTANT PROFESSOR)

FACULTY OF LAW

(DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY, LUCKNOW.)

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Amendment of a Pleadings

ACKNOWLEDGEMENT
I, SHUBHAM TRIPATHI, I feel myself highly elated, as it gives me tremendous pleasure to
come out with work on the topic Amendment of Pleadings , I started this project two weeks
ago on its completion I feel that I have not only successfully completed it but also earned an
invaluable learning experience.

First of all I express my sincere gratitude to my Professor Dr.Gulab Rai who enlightened me
with such a wonderful and elucidating research topic. Without Him, I think I would have
accomplished only a fraction of what I eventually did. I thank him for putting his trust in me
and giving me a project topic such as this and for having the faith in me to deliver. His sincere
and honest approach have always inspired me and pulled me back on track whenever I went off-
track. Sir, thank you for an opportunity to help me grow. I also express my heartfelt gratitude to
everyones help for the completion of this project.

Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I would thank my brother for guiding me.

I also express my gratitude to all the class mates for helping me as and when required and must
say that working on this project was a great experience. I bow my head to the almighty for being
ever graceful to me

SHUBHAM TRIPATHI

B.Com.LL.B (Hons.),

7th Semester

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Amendment of a Pleadings

Table of Content

o INTRODUCTION.
o ESSENTAILS OF PLEADING.
o AMENDMENT AND ITS OBJECT
o LEAVE TO AMEND WHEN GRANTED.
o LEAVE TO AMEND WHEN REFUSED.
o EFFECT OF AMENDMENT.
o CONLUSION.
o BIBLIOGRAPHY.

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Amendment of a Pleadings

INTRODUCTION.

It is an essential requirement of pleading that material facts 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 emend his pleadings before or during the trial of
the case.

Rule 17 of Order VII deals with the provision of amendment of the plaint1.

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17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party o alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall be made as may be necessary for
the purpose of determining the real question in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the
Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter
before the commencement of trial.

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Amendment of a Pleadings

ESSENTIALS OF PLEADING.

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 12 defines pleading; Rule 23 lays down the fundamental
principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.

3. Forms of pleading

The forms in Appendix A when applicable, and where they are not applicable forms of
the like character, nearly as may be, shall be used for all pleadings.

4. Particulars to be given where necessary

In all cases in which the party pleading relies on any misrepresentation, fraud, breach of
trust, wilful 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.

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1. Pleading

"Pleading", shall mean plaint or written statement.

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2. Pleading to state material facts and not evidence

(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the
party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be
proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation
being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
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Rules 14 and 15 require the signing and verification of pleadings. Rule 16 empowers a court to
strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of
pleadings.

14. Pleading to be signed

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

Provided that where a party pleading is, by reason of absence or for other good cause,
unable to sign the pleading, it may be signed by any person duly authorized by him to
sign the same or to sue or defend on his behalf.

15. Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading
shall be varied at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the
pleading, what he verifies of his own knowledge and what he verifies upon information
received and believed to be true.

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

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

17. Amendment of pleadings.-

The Court may at any stage of the proceedings allow either party o alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the real question in
controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court conies to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial.
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AMENDMENT AND ITS OBJECT:

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

The paramount object behind Amendment is that the courts should try the merits of the
cases that come before them and should consequently allow all amendments that may be
necessary for determining the real question in controversy between the parties provided it does
not cause injustice or prejudice to the other side4.

Ultimately, the courts exist for doing justice between the parties and not for punishing
them, and they are empowered to grant amendments of pleadings in the larger interest of doing
full and complete justice to parties5.

Provisions for the amendment of pleading are contained to promote end of justice and not
for defeating them6. Further in the leading case of Cropper v. Smith, the object underlying the
amendment of pleadings has been laid down by Bowen, L.J. in the following words:

I think it is well-established principle that the object of the courts is to decide the rights of the
parties and not to punish them for mistakes they make in the conduct of their cases by deciding
otherwise than in accordance with their rights7.

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

4
Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559.
5
Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.
6
Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91: AIR 1978 SC 484.
7
(1884) 29 Ch D 700.
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party and can be sufficiently compensated for by costs or other terms to be imposed by the
order8.

In Kisandas v. Vithoba9, Batchelor J. observed as follows:

All amendments ought to be allowed which satisfy the two conditions (a) of not working
in justice to the other side, and (b) of being necessary for the purpose of determining the
real questions in controversy between the parties.

Therefore the main points to be considered before a party is allowed to amend his pleading are:
firstly, whether the amendment is necessary for determination of the real question in controversy;
and secondly, can the amendment be allowed without injustice to the other side.

Thus, it has been held that where amendment is sought to avoid multiplicity of suits 10, or
where the parties in the plaint are wrongly described11, or where some properties are omitted
from the plaint by inadvertence12, the amendment should be allowed.

LEAVE TO AMEND WHEN REFUSED.

It is true that courts have very wide discretion in the matter of amendment of pleadings. But the
wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power and
no legal power can be exercised improperly, unreasonably or arbitrarily.

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

The power to allow an amendment is undoubtedly wide and may at any stage be
appropriately exercised in the interest of justice, the law of limitation notwithstanding.
But the exercise of such far-reaching discretionary powers is governed by judicial

8
Tildersley v. Harper, (1878) 10 Ch D 393.
9
[1909] I.L.R. 33 Bom. 644; 11 Bom.L.R. 1042.
10
Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357,
11
Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.
12
Someshwari v. Mahshwari, AIR 1936 PC 332.
13
1974 AIR 1126, 1974 SCR (3) 882.
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considerations and wider the discretion, greater ought to be the care and circumspection
on the part of the court.

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

1. Leave to amend will be refused when amendment is not necessary for the purpose of
determining the real question in controversy between the parties. The real controversy test is the
basic test. In Edevian v. Cohen14, the application for amendment was rejected since it was not
necessary to decide the real question in controversy.
2. Leave to emend will be refused if it introduces a totally different, new and inconsistent
case or changes the fundamental character of the suit or defence. In Steward v. North
Metropolitan Tramways Co.15, the plaintiff filed a suit for damages against the tramways
Company for negligence of the company in allowing the tramways to be in a defective condition.
The company denied the allegation of negligence. It was not even contended that the company
was not the proper party to be sued. More than six months after the written statement was filed,
the company applied for leave to amend the defence by adding the plea that under the contract
entered into between the company and the local authority the liability to maintain tramways in
proper condition was of the latter and, therefore, the company was not liable. On the date of the
amendment application, the plaintiff's remedy against the local authority was time barred. Had
the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local
authority. Under the circumstances, the amendment was refused.
3. Leave to amend will be refused where the effect of the proposed amendment is to take
away from the other side a legal right accrued in his favour16. Every amendment should be
allowed if it does not cause injustice or prejudice to the other party.
In Weldon v. Neal17 the original action was simply for slander, and the plaintiff was non-
suited. Later she sought to amend her claim by setting up, in addition to the claim for slander,
fresh claims in respect of assault, false imprisonment and other causes of action, which at the
time of such amendment were barred by limitation though not barred at the date of the writ.

14
(1889) 43 Ch. D 187.
15
(1886) 16 QB 178.
16
Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357.
17
(1880) 19 Q.B.D. 89.4; 66 L.J.Q.B. 621; 35 W.R. 820.
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Here, then, the amendment sought to setup fresh claims, claims which had never been heard of
until they had become barred; yet even in so strong a case as this Lord Esher M.R. refusing leave
to amend intimated that the decision might have been the other way if there had existed special
circumstances to justify it.

4. Leave to amend will be refused where the application for amendment is not made in good
faith18. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai v.
Ratanlal19, it was observed that there was no ground to allow the application for amendment of
the plaint which apart from being highly belated, was clearly an afterthought fur the obvious
purpose of averting the inevitable consequence of rejection of the plaint on the ground that it
does not disclose any cause of action or raise any triable issue.

EFFECT OF AMENDMENT.

Where an amendment is allowed, such amendment relates back to the date of the suit as
originally filed. In Brij Kishore v. Smt. Mushtari Khatoon it was held that the Court must take
the pleadings as they stand after amendment and leave out of consideration the unamended ones.
The court must look to the pleadings as they stand after the amendment and leave out of
consideration unamended ones20.

CONCLUSION.

It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil
suits. But, the court can not grant the leave of amendment at its whims and fancies. There has to
certain criterion for granting or refusing the leave, which has been laid down in case laws.

18
Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.
19
1990 SCR (1) 172, 1990 SCC (2) 42.
20
Brij Kishore v. Smt. Mushtari Khatoon, AIR 1976 All 399.
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BIBLIOGRAPHY.

Books Referred:

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

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

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

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

URLs.

http://indiankanoon.org/doc/468319/
www.jusprudentia.com/jusacademics

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