Amendment of Plaint

1. INTRODUCTION 6

Statement of Problem7 Objectives of the Study 7 Hypothesis of the Study 7 Research Methodology 7

2. ANALYSIS OF THE RULE “AMENDMENT TO PLAINT”8

Rules to Amend Plaint 9 Leave of Court when not granted 9 Effect of Amendment 10 Amendment second time 10 Principles of Amendment 11

3. JUDICIAL INTERPRETATIONS 12

4. CONCLUSION 14

Introduction The 22 Act of 2002 instituted the provision of amendment of Plaint under Order VI Rule 17 of the Code of Civil Procedure.[1] Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') enables the parties to make amendment of the plaint which 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." It confers wide discretion on a Court to allow either party to amend or alter his pleadings at any stage of the proceedings on such terms as it deems fit. This discretionary power to court must, however, be exercised in consonance with the judicial principles, existing laws and with reasoned decisions. The object of the Rule is that the Courts should try merits of the cases that come before them and allow all such amendments that helps in determining the real questions of disputes between the parties of the suit and is a step towards achieving ends of justice, provided it does not cause injustice to other party. The provisions of Rule 17 are not exhaustive in nature i.e. it does not limit the powers of court to grant amendments in specific circumstances. The courts are completely empowered to exercise their discretion in granting the application of amendments in the light of said rule. However, where in cases where parties cannot use this rule and the court faces difficulty application of the said rule, section 151 of the Code acts as resort to the Courts that deals with the inherent powers of the Court. The institution of this Rule in the amendment was subject to certain restrictions, unlike the previous rule and determines one of the very strong civil right (with the leave of Court) as well as remedy to the parties. The upcoming part of the article shall deal with the instances and case laws that dealt with the questions relating to amendment of plaint and the related aspects attached to the said topic. STATEMENT OF PROBLEM The Rule with respect to amendments of pleading seems an easily available right on the face of it. But the circumstance under which it has been exercised does not make it easily accessible. The problem lies in the wide discretionary powers of court conferred on them under this rule. There are cases where court has denied this right in the light of various situations that came across. Therefore the study will try to figure out the actual application of the said rule and intricacies involved in it. OBJECTIVE

1. To study the logic behind Order VI Rule 17.
2. To understand its better implementation.
3. To understand the discretionary power laid down in the said rule and its application.

HYPOTHESIS The remedy of amendment of plaint is easily available option and can be exercised anytime with regards to trial procedure. RESEARCH METHODOLOGY The research work is confined to the cases of Indian Judiciary with regard to analysis of the application of the discretionary power of the Courts and is is an exploratory doctrinal and library based research that involves case descriptions and their landmark judgments that has vital importance. Number of books has been referred and the online databases information was a part of it. ANALYSIS OF THE RULE “AMENDMENT TO PLAINTS” As a general rule, material facts and arguments must be generally stated in a plaint but many a times party may find it necessary to amend such pleadings in order to increase the accuracy of facts and make the case stronger. It is rightly said “Fresh information has come to hand; interrogatories have been fully answered by his opponent; documents whose existence was unknown to him have been disclosed which necessitates reshaping his claim or defense. Or his opponent may have raised some well founded objections to his Pleadings, in case it will be advisable for him to amend his pleadings before it’s too late.”[2] The provisos that came up were 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. To some extent, it 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 Amendment cannot be claimed as a matter of right, but still the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, provided that the other side can be compensated with costs. One of the aims of such rule is to prevent multiplicity of suits with same cause of action.[3] Application of the Rule on other proceedings: The Rule 17 apply to several other proceedings such as execution proceedings, insolvency proceedings, arbitration proceedings, election matters, proceedings under the land acquisition act, claim petitions etc. This means that this rule is not restrictive in nature to specific proceedings but the application is universal in nature in the civil legal system. Even when the provisions of the Code are not applicable, courts and tribunals are competent to devise their own procedure consistent with and based on the general principles of justice, equity and good conscience. Rules to Amend 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. The rule does not lay down the straight jacket formulae as to when an amendment can be allowed. Due to this judiciary has taken various views and points that can be considered for when to grant leave for amendment. Following are certain principles:

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. This keeps check on the rights of the opposite parties.
4. Refusing amendment would in fact lead to injustice or lead to multiple litigation.
5. Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case.

These are the general rules of amendment of plaint that are allowed by court. Later in the next section, the article shall deal with various judgments that dealt with this subject. When the Leave of Court shall not be granted: This section is rather more important to understand to clear the distinction between when the Court shall grant the leave and when it shall not. It is perceived that the amendment is easily accessible right providing discretion of Court. But there are instances where in the Courts have disallowed the application for amendment due to different reasons. Some of the instances of not allowing the application are:

1. When amendment is not necessary for the purpose of determining the real question in controversy between the parties as the real controversy test is the basic test.
2. If it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence.
3. Where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favor.
4. Where the application for amendment is not made in good faith and the applicant has acted mala fide.

Effect of Amendment in Plaint It is general rule that every plaint shall be determined on the facts filed on the date of institution. So as to shorten the course of proceedings, the court allows the amendment and where an amendment is allowed, such amendment relates back to the date of the suit as originally filed. Amendment to Plaint second time This is very crucial aspect with regards to second time amendment to plaint in the same suit. This generally does not occur, but what if certain facts still needs to be inserted in the plaint so as to assure proper adjudication of the matter? This might occur in practice and so it will be important here to refer the case of J. Samuel and Others v. Gattu Mahesh and Others[4], where the apex court held that “the primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief." "The term 'Due diligence' is specifically used in the Code of Civil Procedure so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial." "The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit." Therefore it becomes immaterial that how many times the amendment to plaint is demanded. If the amendment is necessary for the adjudication and does not defeat the ends of justice, then even the 2nd time amendment shall be allowed. Principles of Amendment As the aim of amendment is the effective discharge of the adjudication, so the provisions must be liberally construed and approached. The exercise of judicial discretion must be in the light of judicial considerations and with great care and circumspection. Ordinarily, following principles are followed while amendment:

1. All amendments must be allowed which are necessary for determination of real controversies.
2. The proposed amendment should not alter and be a substitute of cause of action originally raised.
3. Inconsistent and contradictory allegations that will negate the present facts instituted shall not be allowed for amendment.
4. The proposed amendment should not cause prejudice to the other party.
5. Amendment barred by limitation should not be allowed.
6. Technicalities of law should not hinder justice and so the amendment should be allowed to minimize the litigation between the parties.
7. The delay in filing amendment petitions must be duly compensated.
8. Mala fide intentions behind the amendment must be discouraged.

Thus, above are the crux of the amendments in pleadings and the views of judicial interpretations on the issue. Judicial Interpretations It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung[5] may be taken note of. The Privy Council observed: "All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit." Usha Devi v. Rijwan Ahamd and Others[6] 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. 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." Surender Kumar Sharma v. Makhan Singh[7] 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 refuse the amendment. 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." Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others[8] 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. Order 6 Rule 17 consists of two parts: Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. 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." Mashyak Grihnirman Sahakari Sanstha Maryadit V. Usman Habib Dhuka & Ors.[9] Plaintiff took our Chamber Summons for amending the plaint seeking to incorporate the relief of declaration of Conveyance Deed as illegal and malafide. Chamber Summons was dismissed by the Civil Court. Writ petition was filed in the High Court and the HC permitted the plaintiffs to amend the plaint. The issue came up with the apex court with the issue that whether the High Court committed an error of law in setting aside the order passed by the Trial Court and the SC was affirmative saying that the demand of amendment did not fulfilled the basic principles for granting leave for amendment. Conclusion From the above research on the topic is that the Courts possess high discretionary power that determines whether the leave for amendment must be granted or not. It has been seen in various judgments by courts where they have allowed amendment seeing the circumstance of each different matter. The purpose of Order VI Rule 17 is to help in effective adjudication and determination of controversy between the parties. The rights of other parties are kept in mind and so it is checked that in case of delayed amendment is suits, appropriate compensation is given to other parties. The right of amendment is not easily accessible right as court keeps check on the mala fide intention of the parties and various other cons attached with it. Thus the hypothesis proves to be wrong in this case. The amendment to plaint under the Code is an essential aspect of a suit because it is one of the inherent steps of the adjudication to make it better and effective. It is based on the phrase that Justice should not only be done but must be manifested accordingly. Therefore, the amendment forms an essential part of administration of justice in the civil legal system. 1 | Page

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[1] Available at https://www.legalblog.in/2011/08/amendment-of-pleadings-broad-principles.html , last accessed on May 6th, 2014. [2] C.K. Takwani “Civil Procedure with Limitation Act, 1963”, Eastern Book Company, 7th Edition, 2013, Pg.212. [3]Available at https://www.legalblog.in/2011/08/amendment-of-pleadings-broad-principles.html#sthash.NdOLpWZK.dpuf, last accessed on May 7th, 2014. [4] AIR 2005 SC 3353 [5] [AIR 1922 P.C. 249] [6](2008) 3 SCC 717 [7] (2009) 10 SCC 626 [8] (2006) 4 SCC 385 [9] 2013 (I) CLR (SC)

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