By Kanthi Kiran Mamidanna, NALSAR University, Hyderabad
“Editor’s Note: The court system in a nation usually operates to do justice. In light of this argument, until a few years ago, the parties to a suit had unfettered opportunities to amend the pleadings under Rule 17, Order VI of the Civil Code Procedure. However, objections were raised and it was said that such amendments not only delay the proceedings, but also cause prejudice to the other party. Therefore, by the Code of Civil Procedure (Amendment) Act, 1999, this provision was deleted. But this move led to widespread protests from the public as well as the legal community. This is why it was reintroduced by the Code of Civil Procedure (Amendment) Act, 2002, but with a proviso. This paper seeks to examine these developments and analyse the scope and extent of amendment of pleadings, as it stands today.”
The Code of Civil Procedure, 1908 prescribes the provisions through which the amendments to pleadings can be introduced during the trial process. Since the bygone era, the belief of almost all the legal systems was that the courts must have unrestricted and unguided power to amend the pleadings so as to further the cause of justice without causing an iota of injustice to the adversary party. Rule 17 of Order VI provides for the powers to the courts in India to allow the amendments. Adding to this, the Privy Council, the Supreme Court and other Courts in India have been implementing this practice since the ages. In 1990s, a lot of concerns were raised as to the extent of usage of this facility in almost all the cases litigated till then. Various reports found that no stone has been unturned not to utilize this provision and hence there is a need for a re-look[i].
By the Code of Civil Procedure (Amendment) Act, 1999, this provision relating to amendment of pleadings was deleted. Justice Malimath Committee recommended that the rule 17 of this order be deleted to avoid delay and to ensure speedy disposal of cases[ii]. This amendment act received the assent of the President but was not brought into force. Due to a lot of uproar in the Country and opposition from lawyers, the government reconsidered the question and revived the rule by the next amendment act in 2002 with a proviso. However, it was reintroduced by the Code of Civil Procedure (Amendment) Act, 2002, but with a proviso and was brought into effect from July 1, 2002.
In this backdrop, it is important for us to understand the discourse by which this law on amendment of pleadings has been developing either by way of the legislative enactments or by way of judicial activism.
Order VI deals with pleadings in general. Rule 1 of that Order defines pleadings as a plaint or written statement. Plaint is used to notify the opposite party of the case that is filed against him or her. Framing of pleadings is the most fundamental and must be dealt with a lot of caution. The reason is that, once the pleadings are framed, no one has the power to amend them expect for the judge on his discretion. In the absence of the pleadings, if any evidence is produced by the parties, that cannot be considered. It is a settled law that no party must be allowed to venture beyond the pleadings. There is a lot of litigation in this area as to the scope and extent of the liberty to amend the pleadings. In the Common law, the pleading practice was a mechanical and rigid exercise such that misspellings of minor details were not allowed.[iii] The object and purpose of the pleadings is to make the opposite party acquaint with the case he has to face in the due course of time. The whole object of the pleadings is to bring parties to the definite issues, reduce costs and to ensure the speedy delivery of justice. This also results in the conduct of the fair and flawless trial and the pleadings must contain all the essential material facts so that the adversary party is not taken away by surprise. The parties are normally expected to confine to the pleadings.
One of the most important objects of allowing the amendment to pleadings is to prevent multiplicity of suits. If the amendment is sought seeking an ancillary relief is not allowed, then the party might have a remedy to raise the same in the subsequent case. The amendments relating to constructive res judicata must not be allowed by the courts.
Order VI, Rule 17 of the Code of Civil Procedure provides for the “Amendment of pleadings.” The provision enumerates that a court may allow any party at any stage to amend the proceedings if it considers that to be just. All such amendments which are necessary for the purpose of determining the real questions in controversy between the parties shall be made by the court. A proviso has been added to this provision through the CPC (Amendment) Act, 1999, which intends to limit the powers of the court’s discretion of amendment of pleadings. It says that no application for the amendment shall be allowed by the court after the commencement of the trial, unless the court is of the opinion that notwithstanding the parties’ due diligence, they could not have raised the matter before the commencement of the trial.
Rule 16 of the same Order provides for the striking out of the pleadings. This was also subjected to the amendment in the year 1976. It provides that the Court may at any stage of the proceedings order to amend or remove any part of the pleading which is unnecessary, scandalous, frivolous or vexatious etc. The Court may also modify at any stage any matter that delays the fair trial or abuses the process of the court.
The rules of interpretation to be followed in interpreting this provision are very simple. The provision can be divided into two parts. The first part is discretionary (“may”) and gives wide and unfettered discretion to decide on case-to case basis whenever it appears to be just. The court may or may not allow the amendment to the proceeding for determining the real questions of controversy. The approach of the Court should be liberal and not hypothetical[iv]. Hence, the amendment to proceedings is not a right; rather it is in the discretion of the court.
The second part is mandatory (“Shall”) and orders the court to accept all the applications necessary for the purpose of determining the real issue between the parties if it finds that the parties could not have raised the issue in spite of the due diligence before the commencement of the trial. However, such discretion must be exercised by applying the judicial mind according to the well-established principles.
The primary object of the rule is that the Courts should try the case based on the merits and should subsequently allow the amendments which are must for assessing the real controversy between the parties. This ensures that the injustice is not caused to the either side based on minute omissions by the parties. The Supreme Court in the case of Haridas Girdhardas vs. Vasadaraja Pillai[v] held that “however negligent or careless the first omission may have been, and however late the proposed amendment, the amendment should be allowed if it does not cause any injustice to the other side.” A suit must be instituted before the remedy under this rule is availed. The Supreme Court through Jai Jai Ram Manohar vs. National Building Material Supply[vi] expressed that courts are meant for the purpose of doing justice and not for punishing them for minor mistakes.
The object underlying the amendment of pleadings was laid down by Bowen, L.J, in the case of Cropper vs. Smith[vii] “Now, I think it is a well-established principle that the object of 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. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding maters in controversy, and I do not regard such amendment as a matter of favor or of grace.”
Nature and Scope
The concept of amendment of pleadings can be traced back to the decision of the Privy Council in the case of Ma Shwe Mya vs. Maung Mo Huang.[viii] The Court observed that the rules of Courts are nothing but provisions intended for securing the ends of justice and all those rules must be subordinate to achieve that purpose. For that to be achieved, full powers of amendment must be enjoyed and liberally exercised by the courts and it has added a caveat that an amendment cannot be made to substitute one cause of action for another.
Order I, Rule 10 confers the power to the court either to add or strike off a party to the suit. The right of the court either to add or subtract the parties can be exercised either suo moto or by an application of the party.
The situations wherein the amendments to the pleadings should or should not be allowed cannot be laid down by a court of law in a straight jacket formula. It must be decided on case-by-case basis. However, this rule applies to other proceedings such as execution proceedings, arbitration proceedings, petitions under Special Marriage Act etc.
The general rule is that the leave to amend will be granted so as to enable the real question on issue between the parties to be raised in the pleadings, where the amendment does not cause any injury to the opposite party[ix]. Now let us look at the approach of the judiciary in solving this issue. This job helps us in tracing the evolution of the law relating to the amendment of proceedings.
Generally, the courts grant the leave to amend the proceedings if such allowance enables the court to decide the real matter in controversy. Provided that, it does not cause injustice to the other party. In Suraj Prakash vs. Raj Rani[x], the Supreme Court held that liberal principles should guide the court in the exercise of discretion in allowing amendment. It said that the multiplicity of proceedings should be avoided and the amendments which might change the character of the case must not be allowed. It also added a caveat that the subject matter of the suit must not be changed by that.
Though the courts were granted unfettered discretion to decide whether to grant the amendment or not, but it is subjected to misuse. The classic rule is, the wider the discretion, the greater the misuse. This power of the courts must be exercised properly, reasonably and non-arbitrarily.
The amendment can be simply refused when it is not necessary to determine the real question in controversy. The leading decision on this point is Edwian vs. Cohen[xi]. In this case, A’s furniture was wrongfully removed by B and C. A filed a suit against B for damages and later he sued C for the same wrong. Later, C sought an amendment that judgment against B is bar against the suit against him. The application was rejected as it was not necessary to decide the real issue in controversy.
The application to amend will be rejected if that seeks to introduce new and different case. Steward vs. North metropolitan Tramways Company[xii]. In this case, the plaintiff filed a suit against the company for negligence in running the tramways in defective condition. It was not contended that the company was not the proper party to be sued. Six months later, the company made an application that the duty to maintain the tramways is in the jurisdiction of the local authority under the contract. At the time of amending the application, the remedy against the local authority was time barred. Had the agreement been shown earlier, the plaintiff would have sued the local authority. In the present case, the amendment was rejected and the company was held liable. This case laid down the rule that if the amendment of the written statement wholly displaces the position of the plaintiff, then the amendment should not be allowed.
In K. Venkateswara Rao vs. B.N. Reddi[xiii], the Supreme Court held that the courts have wide powers to amend the plaint under order XI Rule 17, but those powers are subject to Law of Limitation. Material facts and important particular must be included in the pleadings based on which the Court ventures ahead to decide the suit. But, most of the times, the parties find it inconvenient not to amend the pleadings. They seek to adduce new evidence, to add fresh information, which are exclusively gathered by them. It might be a case where one party must amend the pleadings in view of the documents disclosed by the opposite party, thus chiseling his claim or defense.
The application to amend will be refused if it proposes to take away the legal rights of the other party accrued in his favour. The English case on this subject is Weldon vs. Neal[xiv]. In this case, A filed a suit against B for slander. Later, he sought to amend the plaint adding the additional charges of assault and false imprisonment. But, they were barred by limitation on the date of application. This proposed amendment was refused since it would take away the other party’s legal right i.e the defense under the law of limitation.
This particular rule is not a universal one but is subjected to certain restrictions as dealt in the above chapter. The Privy Council in Charan Das vs. Amir Khan[xv] held that the courts no doubt have undisputed power to amend the pleadings, but there are situations where the questions of law of limitations are outweighed by the special circumstances of the case. In this particular case, the plaintiffs sued the defendants and claimed only the title of over the disputed property, but they did not claim consequential relief of possession. Hence, Privy Council, even though the application was submitted after the limitation period expired, accepted it holding that there is no ground where the plaintiffs could have acted with mala fide intention.
The case of Kishan Das vs. Rachappa [xvi] was one where the amendment was allowed on the ground that circumstances of the case are very particular that it should be considered as an exception to the general rule. The facts are that A alleging that he brought a capital of Rs. 4000 to the partnership firm operated with B and sues for dissolution of partnership and the accounts. After the examination of the proceedings in the court of first instance by the Bombay High Court, it felt that A initially intended to plead for recovery of money and not dissolution. Here, the evidence was taken and the issues were framed only with reference to the recovery of money. The same court refused to allow the amendment as it found that the agreement between A and B does not constitute partnership. Later, he appeals from that decree seeking to amend the plaint but at that date, the laws of limitation came into action. The Court felt that the amendment should be allowed for the point of limitation could not have been taken if the pleading was not defective. The other amendments which cannot be allowed by the court of law are the ones forbidden by law and the ones which are not bona fide.
For instance, in Shiv Gopal Shah vs. Sita Ram Sarongi[xvii] , the case was that the defendant set up the claim of rival title on the basis of sale of property through sale deed. The plaintiffs along with co-plaintiffs, remained silent for more than 15 years after getting the sale deed of the defendant stating that it is bogus. The Supreme Court refused to entertain their claim as it found that to be time barred. The Court found that the delay was very substantial and that the plaintiffs were negligent. The court laid down a rule that there has to be valid explanation and basis made out in the application.
The proceedings cannot be amended if the party introduces a new case or lets in new evidence and if the court feels that the amendment leads to unnecessary complications. The court may refuse to allow the amendment if it feels that the party had several opportunities and had slept over his rights. The amendment in a pleading cannot be claimed as a matter of right[xviii].
While considering the application for amendments should or should not be allowed, the courts should not go into the correctness or falsity of the case in the amendment. When the amendment application is accepted by the court, then normally an opportunity should be given to the opposite party to file objections of the same. But of the amendment is formal in nature, then the notice is not necessary[xix].
Interpreting at any stage of proceedings
Under Order 6, Rule 17, the courts were given power to amend the proceedings “at any stage of the proceedings” which simply means that the amendment applications are not governed by the law of limitations Narayana Pillai vs. Parameswaran Pillai[xx] . The object of inserting such clause is to serve the ends of justice by determining the exact controversy between the parties. The court may accept the application of amendment before, during or after the trial, after the decree, in first appeal or in the second appeal or in the revision or in the High Court or in the Supreme Court. That list even extends to the execution proceedings. The court must keep in mind that complete justice must be done to the parties. Therefore, delay in making the application is not fatal. But, if there is a gross delay and latches on the part of the amendment, and if the court feels that permitting such amendment causes serious prejudice to the other party, which however cannot be compensated in terms of costs, then the courts may not allow such an amendment. The Supreme Court in Gauri Shankar vs, Hindustan Trust ltd[xxi] held that “not raiding the plea for the span of eight years, a great prejudice was caused to the appellant”.
The proviso adduced to the provision by way of amendment in 2002 merely limits the power of the court and does not allow the court to allow amendment after the commencement of the trial unless it comes to the conclusion that in spite of due diligence, that matter could not be raised by the party before the commencement of the trial.
Re-trial amendments are more liberally allowed the post-trial amendments. The reason is that in the formal cases, it is assumed that the opposite party is not said to be prejudiced as he has full opportunity of meeting the case put forward by his opponent. In the latter cases, the question of prejudice may arise and must be dealt carefully[xxii].
If an amendment is incorporated in a pleading, the Court has the power to direct in appropriate cases that such particular amendment does not relate back to the date of the institution of the suit in the interest of justice. This was stated by the Supreme Court in the case of Sampath Kumar vs. Ayyakanu[xxiii]. The Supreme Court made it mandatory that the party seeking to amend the pleading should mention in the application specifically as to what is to be altered or substituted in the original pleadings[xxiv]. After a close scrutiny by Court, the Court can in its discretion relate it to the original one.
In Sjjan Kumar vs. Ram Kishan[xxv] , the question was whether to permit the amendment relating to the mis-description of the suit. The claim was that the description given about the rent note was wrong and it was repeated in the plaint and this was after the commencement of the trial. Here, the Supreme Court stated that notwithstanding that the application to amendment was proposed after the commencement, the proposed amendment is needed for bringing into the fore the real controversial between the parties. The Madras High Court in the case of Hi Sheet Industries vs. Litelon Ltd[xxvi] said that the proviso to the rule is applicable only to the pleadings instituted with effect from 01-07-2002 and not in prior to this.
The Supreme Court in the case of Laxmidas vs. Nanabai[xxvii] explained the law on the amendment of the pleadings. It said that the court can refuse to entertain the application for amendment if it feels that it restraints the other party’s legal rights which are accrued to him by lapse of time. But, it said that this rule could be applied only when fresh allegations are added by the process of amendments and not in the cases where amendments are sought to clarify an existing pleading where it does not add or subtract any substantial material relevant to the proceeding. Hence, the law before the 1999 amendment was that the court has unlimited power of allowing the amendments to be made in the cases where it merely clarifies the original pleading. Hence, in a case of mis-description of plaintiff, the plaint can be amended at any time for the purpose of rectifying it and the question of limitation does not arise in that case[xxviii].
The principles that apply to amendments of pleadings also apply to the written statements.[xxix] The Supreme Court in Usha Balasahed Swami vs. Kiran Appaso Swami.[xxx] explained the law relating to the applicability of law relating to amendment of pleadings to the amendments of written statements. It said that the prayer relating to the amendment to the plaint and that of written statements stand on different levels. The general principle is that amendments should not be allowed which substitute a cause of action in the nature of the claim. The Supreme Court said that there is no counterpart in the principles relating to the amendment of the written statement. Hence, the Court said that addition or substitution of written statement would not be objectionable whereas adding or subtracting the cause of actions by the plaint may be objectionable.
Hence the Apex Court in this case held that the courts should be more liberal in allowing the applications for the amendment of the written statements that in the case of plaints as question of prejudice would be more in the former case See also Narayana Pillai vs . Parameswaran Pillai[xxxi].
The question which always perturbed the judicial minds is whether amendments can be allowed on the basis of events which happened subsequent to the suit. The law is well settled that though the rights of the parties have to be decided on the date of the suit, the courts can in the interest of the justice take notice of the subsequent events and make appropriate amendments. The Andhra Pradesh[xxxii] and Madras High Courts[xxxiii] have said that applications for amendments which seek to oust the jurisdiction of the courts must not be allowed.
On the recommendation of the law commission, the CPC was amended in 2002, limiting the power of courts in granting the amendments after the commencement of the trial. With the intention of shortening the litigation and for the speedy disposal of the cases, order 17 was omitted by the 1999 amendment. The legislators felt that this rule was in the statute book since ages and there is no single case where this rule was not used. The provision was restored back in 2002 in view of the protests, agitations and strikes all over the country, but with a caveat in the form of the proviso. The new proviso provides that no application for amendment must be processed by the court after the commencement of the trial, unless the courts come to the conclusion that in spite of the due-diligence of the parties, they could not have raised before the commencement. But, the issue of deciding whether the parties in spite of due diligence could have raised the prayer or not depends on the facts and circumstances of the each case. This amendment is trying to limit the powers of the court to some extent, nonetheless, the courts have unfettered powers in the cases of the unforeseen situations. This provision has been already subjected to the judicial scrutiny by the courts in India. The Andhra Pradesh High Court in the case of E. Prasad Goud vs. B. Lakshamana Goud[xxxiv] held that the proviso is not a complete bar nor shuts out entertainment of any later application if the court finds that a party in spite of due diligence could not raise the plea. The Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India[xxxv] upheld the validity of the provision and said that its object is to prevent frivolous applications filed to delay the process of trial. The Supreme Court in Baldev Singh case[xxxvi] held that the term “commencement of the trial” must be used in limited sense as meaning final hearing of the suit, examination of the witnesses, filing of the documents and addressing the documents.
In Sampath Kumar vs. Ayyakannu[xxxvii] , the plaintiff filed a suit against the defendant for prohibitory injunction. But, before the commencement of the trial, he was dispossessed of the property and after eleven years, he moved an application seeking amendment of the plaint claiming possession. The defendant claimed that this would change the nature of the suit and thathe had the perfect title by adverse possession and this particular claim is barred by law of limitation. The trial court and the high court rejected the application of the plaint but the Supreme Court allowed it saying that: “We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.”
The court also placated the defendant by saying that “in the interest of the defendant, the new reliefs sought for are considered by the court to be deemed to be made on the date on which the application seeking amendment was filed”
In another interesting case Nagappa vs. Gurdayal Singh[xxxviii], the facts are that plaintiff suffered injuries in an accident and filed an insurance claim of one lakh. But, in the Apex Court he enhanced his claimed to five lakh. The Supreme Court granted him relief stating that when there is sufficient evidence on record justifying the enhanced compensation for medical treatment, the same should be granted. In this type of cases, the court said that there is no question of introducing a new or inconsistent cause of action. Hence, the courts, in case they want to do justice to the parties, do not consider themselves to be restricted by any legislation.
The law of amendment of pleadings is settled by the Supreme Court. The Courts started with the rule of law that there must not be any restriction on the powers of the courts be it law of limitation or after the commencement of the proceeding, for securing the ends of justice and to minimize the harm caused to the opposite party. The Courts have been very active in this area developing the law time and again to suit to the various time frames. However, the legislators themselves thought that discretion should be granted to the courts whether to allow the amendment or not to decide the matter in issue. The courts themselves since 1908 have started crystallizing the law through guidelines which must be followed while allowing the amendments. They have laid down the principles in which the leave to amendment should be granted and the cases in which it should not be. However, the Supreme Court has been cautious and vigilant in carefully designing the guidelines to be followed by the lower courts. Gradually, as a lot of discretion is vested on the courts, there is a possibility of misuse. There was a Law Commission Report stating that this provision of the amendment was used on a large scale and hence it needs to be restricted.
In 1999, efforts were made to eliminate this provision but could not be brought into force. Due to a lot of protests from the legal practitioners, this was restored back in the 2002 CPC Amendment. But, now a small caveat was adduced to the proviso with a view to limit the unrestrained power of the courts in allowing or refusing the amendments. This was that the court shall allow the amendments to the pleadings only if it feels that the parties could not have raised before in spite of their due diligence. By the literal reading of the provision, it appears that that the power of the Courts is restricted. But, a simple glance at the judgments pronounced since 2002 discussed in the above sections shows that the Courts continued to exercise the unbridled power even after the amendment for securing the ends of justice. This is bold judicial activism that has reached great heights and did not erode the faith entrusted by the citizens in the judiciary.
Edited by Kudrat Agrawal
[iii] Holdsworth, THE HISTORY OF THE ENGLISH LAW 305 (1923).
[iv] Narayana Pillai vs. Parameshwaran Pillai, AIR 2000 SC 614.
[v] AIR 1971 SC 2336.
[vi] AIR 1969 SC 1267.
[vii] (1884) 29 Ch D 700.
[viii] AIR 1922 PC 249.
[ix] Tildersay vs. Harper, (1878) 10 Ch D 393.
[x] AIR 1981 SC 485.
[xi] (1889) 43 Ch D 187.
[xii] (1886) 16 QB 178.
[xiii] AIR 1969 SC 872.
[xiv] (1880) 19 QBD 394.
[xv] AIR 1921 PC 50.
[xvi] 4 Ind Cas 726.
[xvii] AIR 2007 SC 1478.
[xviii] Kanda vs. Waghu, AIR 1950 PC 68.
[xix] Vicco Laboratories vs. Hindustan Rimmer, AIR 1979 Del 114.
[xx] AIR 2000 SC 614.
[xxi] AIR 1972 SC 2091.
[xxii]Kanakarthanakamal vs. Loganatha, AIR 1965 SC 271.
[xxiii] AIR 2002 SC 3369.
[xxiv] Gurdial Singh vs. Raj Kumar Aneja, AIR 2002 SC 1010.
[xxv] (2005) 13 SCC 89.
[xxvi] AIR 2007 Mad 78.
[xxvii] AIR 1964 SC 18.
[xxviii] Kurapati Mallayya vs. Thoudepu Ramaswami, AIR 1964 SC 823.
[xxix] Gautam Swarop vs Leela S Jetley, AIR 2009 SC (supp) 363.
[xxx] AIR 2007 SC 1663.
[xxxi] (2000) 1 SCC 712.
[xxxii] ERR memorial High School Committee vs. P Atchaya, AIR 1957 AP 10.
[xxxiii] Singara Muralidhar vs. Govindaswami, AIR 1928 Mad 400.
[xxxiv] (2003) 3 Andh LT (386).
[xxxv] AIR 2005 SC 3353.
[xxxvi] AIR 2007 SC 2832.
[xxxvii] 2002 Supp (2) SCR 397.
[xxxviii] AIR 2003 SC 674.