DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
ACADEMIC YEAR – 2017-18
SUBJECT – Drafting, Pleading and Conveyance
AMENDMENT OF PLEADINGS
SUBMITTED TO:
Ms. Shakuntla Sangam,
Associate Professor (Law)

SUBMITTED BY:
Kirti Sharma
Enrollment No.: 150101071
BA LLB (HONS) VI SEMESTER
INDEX

1) Introduction
2) Order VI, Rule 17-Amendment of Pleadings
3) Amendment and its objectives
4) Leave of Amendment when granted
5) Leave of Amendment when refused
6) The rule in the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons
and Others
7) Conclusion
INTRODUCTION

According to Black law Dictionary “Pleadings are written allegations of what is affirmed on the one side,
or denied on the other, disclosing to the court or jury having to try the cause the real matter in
disputes between the parties.”

Pleadings are statements in writing drawn up and filed by each party to a case stating what his contentions
will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in
answer.

Pleading is defined in the Code of Civil Procedure as meaning a plaint or written statement.(Order VI,
Rule 1).

The whole object of the pleadings is to narrow the parties to definite issues and thereby diminish expense
and delay, especially as regards the amount of testimony required on either side of the hearing.

The Fundamental Rules regarding pleading are:

1) A pleading must state facts and not law.

2) It must contain only material facts on which the parties relies for his claim or defence.
3) It must state only the facts on which the party pleading relies for his claim or defence, and not the
evidence by which they are to be proved.
4) The facts must be in form of a concise statement but in aiming at conciseness, precision should
not be sacrificed.
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 and keeping in mind the importance of pleadings
Rule 17 of Order VI of C.P.C provides with the provision of amendment of pleading.

Order VI, Rule 17- Amendment of Pleadings

"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."

The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision
was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to
prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at
any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due
diligence, such amendment could not have been sought earlier.1

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. 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 rights”.

Thus the purpose and object of Order VI, Rule 17 is to allow either party to alter or amend his pleadings
in such a 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 outer side
can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity
of litigations.

LEAVE TO AMEND WHEN GRANTED

In the case of State of M.P v. U.O.I. it was said that Among various rules of pleading in Order XXVI we
are concerned about Rule 8 which reads as under:

“ The court may, at any stage of the proceedings, allow either party to amend his pleadings in such
manner and on such terms as may be just, but only such amendments shall be made as may be necessary
for the purpose of deterring the real question in controversy between the parties.”

The above provision, which is similar to Order VI, Rule 17 of the Code prescribes that at any stage of the
proceedings, the Court may allow either party to amend his pleadings. However, it must be established

1
(2006) 4 SCC 385
that the proposed amendment is necessary for he purpose of determining the real question in controversy
between the parties.

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. Vithoba2, 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.
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 .”

Same was held in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil.

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.

LEAVE OF AMENDMENT WHEN NOT GRANTED

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:

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

2
(2008) 3 SCC 511
 Edevian v. Cohen, the application for amendment was rejected since it was not necessary to
decide the real question in controversy.
2. 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 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 trivial issue.

THE RULE IN THE CASE OF REVAJEETU BUILDERS AND DEVELOPERS V.

NARAYANASWAMY AND SONS AND OTHERS

"63. 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.

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. Therefore it is for the Courts to decide whether an amendment of
pleading is necessary for the cause of justice or curbing the delay. After all the basic aim of the
judiciary is to strive for ends of justice so it has to maintain the balance accordingly.