AMENDMENT OF PLEADINGS 2018

DR. RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY, LUCKNOW
2017-2018

DRAFTING OF PLEADINGS AND CONVEYANCING

FINAL DRAFT
ON
“AMENDMENT OF PLEADINGS”

UNDER THE GUIDANCE OF SUBMITTED BY

Dr. SHAKUNTALA SANGAM SMITA PATEL
RMLNLU Enroll No. – 150101139
6th SEMESTER

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ACKNOWLEDGEMENT
Apart from the efforts of mine, the success of this project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my deep
gratitude and sincere thanks to Asst. Prof. Shakuntala Sangam who guided me and taught
everything so well. I take this opportunity to express my deep sense of gratitude for her
invaluable guidance, constant encouragement, immense motivation, which has sustained my
efforts at all the stages of this project work.

I can’t forget to thanks my parents for providing me best of the facilities, support and
encouragement. I will remain indebted to them.

Besides, I would like to thank the authorities of Dr. Ram Manohar Lohiya National Law
University for providing us with a good environment and facilities to complete this project.

I would also like to acknowledge my classmates who helped me and provided valuable
advice which helped me to carry out this project successfully.

THANK YOU

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 AMENDMENT OF PLEADINGS 2018

Table of Contents
AIM AND OBJECTIVE ................................................................................................................. 4
RESEARCH METHODOLOGY.................................................................................................... 4
INTRODUCTION .......................................................................................................................... 4
DEFINITION OF AMENDMENT OF PLEADINGS ................................................................... 5
GUIDELINES FOR AMENDMENT OF PLEADINGS ................................................................ 6
GROUNDS FOR ALLOWING AMENDMENT OF PLEADINGS............................................ 10
GROUNDS FOR REFUSAL OF AMENDMENT OF PLEADINGS ......................................... 10
CONCLUSION ............................................................................................................................. 12
BIBLIOGRAPHY ......................................................................................................................... 12
Books ................................................................................................................................................ 12
Websites ............................................................................................................................................ 12

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 AMENDMENT OF PLEADINGS 2018

AIM AND OBJECTIVE

The aim and objective of the present study is to look into details of Amendment of Pleadings.
The definition of amendment of pleadings, rules governing the amendment, grounds for
allowing or refusal of the amendment of pleadings will be discussed and explained in the
final project.

RESEARCH METHODOLOGY
The method which will be followed for this study would be purely Doctrinal in nature. This
study would be a descriptive and analytical one describing the effect of amendment of
pleadings on the protection and enforcement of rights. The project is completed with the help
of use of cases, books, articles and other web sources.

INTRODUCTION

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 Written Statement
respectively. An amendment can be by way of altering something, modifying something,
deleting something.

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.

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Amendment of pleadings is basically for the purpose of bringing about final adjudication in a
suit and to avoid multiplicity of proceedings. It is in the interest of justice that a suit shall be
decided on all points of controversy and accordingly, it is needed that the party shall be
allowed to alter or amend their pleadings during the pendency of the suit. There can be a
situation where there is change of circumstances in the course of pendency of a proceeding
and if a matter in issue arises upon such change of circumstance, then amendment becomes
necessary.

DEFINITION OF AMENDMENT OF PLEADINGS

Amendment of pleadings is the process by which a party to litigation may add, subtract, or
modify causes of actions and other matters set forth in the pleadings. 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 Written Statement respectively. An amendment can
be by way of altering something, modifying something, deleting something.

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."

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. Further in the leading case of Cropper v. Smith, the object underlying

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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”.

GUIDELINES FOR AMENDMENT OF PLEADINGS

 Cause of action in a suit cannot be altered by amendment of pleadings. The cause of action
will not be allowed to be substituted in totality and the reason being that the cause of
action is the very basis of a suit. If a new/distinct cause of action is there, the parties are
always free to go to the Court with such cause of action in an independent suit. But there
can be cases where the cause of action has got further aggravated by any further violation
or some continuing cause of action which can be joined in the present suit due to
subsequent change of circumstances. In such cases, the Court in its discretion is free to
allow the amendment as that would not be a case of substitution of cause of action.
 The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue
before the Court. The matter in issue is essential for the determination of the suit and
therefore amendment can be made. Similarly, relief also can be amended. In such cases, if
the amendment is not allowed, the bar of res judicata or as the case may be, the bar of
Order II Rule 2 of the Code of Civil Procedure, 1908 may apply. Therefore, the Court
should try to bring a balance between the injustice that might be caused to the applicant in
case of refusal to grant relief and at the same time, in case of allowing the application, the
requirement of injustice caused to the other party in the present suit.
 If a right has already accrued in pleadings to the opposite party, then the Court shall
normally be reluctant to allow the Amendment of pleadings. However, in such cases, if the
loss that will be caused to the other party can be adequately compensated for by cost then
amendment shall be allowed.1
 When the court hears the application for Amendment of pleadings it does not go into the
merits of the case. While considering the prayer for amendment of the pleadings, the Court
cannot go into the issue of merits vis-à-vis maintainability of the suit, but can consider
only whether the amendment is necessary to determine the real controversy between the
parties2

1
J. Samuel and Ors. v Gattu Mahesh and Ors [2012 (1)SCALE 330]
2
Andhra Bank v ABN Amro Bank N.V. & Ors [AIR 2007 SC 2511]

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 If there is an undue delay in the filing of the application for amendment, without there
being sufficient cause shown to condone the delay, then the Court may normally not allow
the amendment.
 Change of law: The law can be a change of substantive law either prospective or
retrospective. If it is a prospective change then it normally not effect cause of action and
matter in issue in the pending suit and therefore, amendment is not needed. Whereas it is a
retrospective change, amendment might be needed and shall be allowed. If it is a change
of procedural law then normally pleadings will not be allowed to be amended but the court
shall itself take note of the change of procedural law.3

Further, Order VI rule 18 of the Code of Civil Procedure, 1908 casts a duty on the party to
carry out the amendment, if allowed by the Court, within the time limited for the said purpose
by the order and if no time is thereby stated, then within 14 days from the date of the order. In
case the party fails to carry out amendment within the said period, he shall not be permitted to
carry out the amendment after the expiration of time limited, unless the time is further
extended by the Court4

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 Singh5
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 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 laches in making the application for amendment cannot be a ground to

3
Omprakash Gupta v Ranbir B. Goyal [AIR 2002 SC 665]
4
Delhi Development Authority v S.S. Aggarwal and Ors [AIR 2011 SC 3265]
5
[1884] 26 Ch. D. 700

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refuse the amendment."
2. North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead)6:
In so far 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 Patil 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 Others7:
"Mr Bharuka, on the other hand, invited our attention to another decision of this Court in
Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as
follows: (SCC pp. 504-05)
"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 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 Others8
"The object of the rule is that the courts should try the merits of the case that come before

6
1909) ILR 33 Bom 644
7
1974 SCR (3) 882
8
[1889] 41 Ch. D. 563

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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.
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."
5. Revajeetu Builders and Developers v Narayanaswamy and Sons and Others9:
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 withapplication 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.

Conditions:
The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K.
Sarwagi And Co. Pvt. Ltd. And Anr.10 “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

9
(1886) 16 QB 178
10
(1887) 19 QBD 394 at 395

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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.”

GROUNDS FOR ALLOWING 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.

In Kisandas v Vithoba, Batchelor J. observed as follows: “All amendments ought to be

allowed which satisfy the two conditions:

1. of not working in justice to the other side, and

2. 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.

GROUNDS FOR REFUSAL OF AMENDMENT OF PLEADINGS

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 Kumar, 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 court:

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1. Leave to amend will be refused when amendment is not necessary for the purpose of
determining the real question in controversy between the partie. The real controversy test is
the basic test. In Edevian v. Cohen, the application for amendment was rejected since it was
not necessary to decide the real question in controversy.

2. 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., 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 totake
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. Neal 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. 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
faith. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai v.
Ratanlal, 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

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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.

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.
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
Books
 Code of Civil Procedure by Y.P. Bhagat and Kumar Keshav
 Textbook on Pleading, Drafting and Conveyance by Dr. A.B. Kafaltiya

Websites
 www.indianlawjournal.com
 www.dnaindia.com
 www.indialawyers.com
 www.indiankanoon.org
 www.lawyersclubindia.com
 www.lawteacher.net
 http://www.legalblog.in/2011/08/amendment-of-pleadings-broad-principles.html

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