Understanding Amendment of Pleadings

Posted by Legalopedia on November 20, 2021

PLEADINGS

This article tries to understand the concept of Amendment of Pleadings and the principles governing it. But to comprehend it, it is essential to know the concept of pleadings. Order VI of the Civil Procedure Code speaks about pleadings. Pleadings can be generally understood as written transactions between parties of a suit without the interference of the court which are intended to inform the court about the material facts of the case. Pleadings make up the foundation of a suit which help the court comprehend the circumstances of the case, respective positions and requirements of the parties based on which the issues are framed and decided upon. The court shall not consider any material fact that are not pleaded by the parties in their respective pleadings. They majorly consist of plaint and written statement, but can also include pre suit notices, admissions etc.

As these pleadings form the foundation of the suit, any subsequent changes in the facts pleaded if not brought to the attention of the court shall cause injustice. Thus, on the principles of public policy CPC allows for the Amendment of Pleadings under Order 6 rule 17 1.

AMENDMENT OF PLEADINGS

  1. Deconstructing Order 6 Rule 17 – elements
    2.

    “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”
    1. Substantial Elements
      2.
      1. Discretionary Power of the court – ‘may’ allow the application

        2. Amendment of Plaint is not a matter of right that can be demanded. The amendment may be allowed at the discretion of the court after considering the objective element and equity.

      2. Time Period – ‘at any stage of the proceeding’ subject to proviso.

        3. Building on the 1st element, The amendment may be allowed at any stage of the suit at the discretion of the court. But for an amendment after the commencement of the trial shall be allowed the only after proving inability to raise the pleading inspite of the due diligence taken on the part of the party applying for the amendment.

      3. Equity Conditions – ‘in such manner and on such terms as may be just’.

        4. Building on the prior elements, The amendment shall be allowed at the discretion of the court at any stage of the suit after ensuring due diligence taken by the party applying on such equitable conditions as to compensate the opposite party for grievance caused or on the grounds of public policy.

      4. Objective – amendment may be allowed after ensuring such amendment ‘may be necessary for the purpose of determining the real questions in controversy between the parties’

        5. Building on the prior elements, the amendment shall be allowed at the discretion of the court at any stage of the suit after ensuring due diligence taken by the party applying on such equitable conditions after ensuring the objective that such amendment may be necessary for the purpose of determining the substantial issue between the parties. The cardinal or basic test shall be used to determine if the amendment is necessary or not.

      Supreme Court in the case Rajesh Kumar Aggarwal vs KK Modi 2 has observed the first two elements of Amendment of Pleadings

      “Order 6 rule 17 consist 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(objective).”
    2. Procedural Elements – to be observed in allowing amendment of pleadings
      3.
      • Opportunity to Objections – to the application shall be allowed to the opposite parties.
      • Reasoned Order – the Order allowing the amendment of the pleadings shall be substantiated with the reasons for granting the permission.
      • Merits the application shall not be considered in exercising the Discretion – Supreme Court in the case Sampath Kumar vs Ayyakannu 3 has held -

        • “The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment.”
  2. Grounds for refusing an application to amend pleadings
    3.

    1. If the amendment leads to injustice, or lead to violation of legal rights of other parties or is in contravention to public policy
    2. Not necessary for determining the substantial issue in the dispute
    3. If the amendment tends to introduce a new cause of action or changes the nature of the case.
    4. Amendment is sought with malafide intentions such as to delay the suit, obstruct proceedings or execution of a decree etc.
    5. Amendment leads to inconsistent pleadings.

GOVERNING PRINCIPLES

Analysing the procedural and substantive elements in addition to the grounds for refusal from a birds eye view, the said principles can be inferred to govern the concept of amendment of pleadings.

  1. Principle of Equity –

    2. Equity can be observed to be an over-arching principle that governs the concept of amendment of pleadings. This can be seen from the substantial elements such as equity conditions imposed by the court over the person seeking amendment. SC in the case Raghu Thilak D.John vs S.Rayappan 4 held equity as the overarching purpose behind the amend provisions

    “The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just.”
  2. Principle of Due Diligence –

    3. Due diligence is also seen to be a essential principle governing this concept. Due diligence is is expected to be applied by the courts in exercising its discretion in allowing or disallowing the amendment while it is expected to be taken by the person seeking amendment.

1 “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”

2 (2006) 4 SCC 385

3 (2002)7 SCC 559

4 (2001)2 SCC 472