AMENDMENT OF PLEADINGS: ORDER VI RULE 16- 18 CIVIL PROCEDURE CODE,1908

A SEMINAR REPORT

Submitted by: Twinkle ChopraClass : 5th yr,

INTRODUCTION

Order VI of the Civil procedure Code 1908 (hereinafter refer as CPC) deals with pleading in general. Pleading are statements in writing drawn up and filed by each party to a case, stating what his contentions will be at the trail and giving all such details as his opponents needs to know in order to prepare his case in answer. According to Order VI Rule 1 Pleading is defined as plaint or written statement. Plaint is the statement of a claim, in writing and filed by the plaintiff in which he sets out his cause of action with all necessary particulars while Written statement is the statement of defense in writing and filed by the defendant in whom he deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which may be in his favor adding such legal objections as he wishes to take to the claim. In Virendhra Kashinath v. Vinayak N. josh, A.I.R 1999 SC 162 --the Supreme court held the object of the pleading in twofold first, to afford other side intimation regarding the particular facts of his case so that they may be met by the other side, second is to enable the court to determine what is the really issue between the parties. Pleading provide a guide for the proper mode of trail. They demonstrate upon which party the burden upon which party burden of the proof lies, and who has the right to open the case. Pleading do not only define the issues between the parties for the final decision of the Court at the trail, they manifest and exert their importance throughout the whole process of the litigation. They determine the range of admissible evidence which the parties should adduce at the trail. They also lay down limit on the relief that can be granted by the court.The fundamental rule of pleading is that party can only succeed on the basis of what he has pleaded and proved. He cannot succeed on a case not set up by him. He also cannot be permitted to change his case at the stage trail if it is inconsistent with his pleadings. Such variation would come surprise and confusion and is always looked upon by courts with considerable disfavor and suspicion.BASIC RULES OF PLEADING : ORDER VI RULE 2Sub- rule (1) of the Rule 2 lays down the fundamental principles of pleadings. It reads as under: 2(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for the claim of the defense, as the case may be, but not the evidence by which they are to be proved.On analysis, the following general principles emerge:(i) Pleadings should state facts and not law- It is duty of the parties to state only the facts on which they rely upon for their claims. In Syed Dastagir v. T. R. Gopalkrishna , AIR 1999 SC 3029 SC held -- It is for the court to apply to the law to the facts pleaded.(ii) The facts stated should be material facts- It means all facts upon which the plaintiffs cause of action or the defendants defence depends. In Udhav Singh v. Madhav Rao Scindia 1976 A.I.R 744 SC held All the primary facts which must be proved at the trail by a party to establish the existence of a cause of action or his defence are material facts.(iii) Pleadings should not state the evidence- the pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved. In Virender Nath v. Satpal Singh , AIR 2007 SC 581 SC held - The pleading should contain facta probanda not facta probantia(iv) The facts should be stated in concise form- the pleading should be drafted with sufficient brevity and precision. They should be definitely stated and should not be left to be inferred from vague or ambiguous expression.

AMENDING OF THE PLEADING: ORDER VI RULE 16-18 CPC

In the Pleadings necessary material facts and particulars must be stated and decision cannot be based on the grounds outside the pleadings. But many a times the party may find it necessary to amend his pleadings before or during the trail of the case. There are different occasions that gives raise to amendment of pleadings before or during the trails. Like for adding or striking out parties, striking out pleadings or where the fresh information has come to hand etc. Rule 16-18 of Order VI of CPC 1908 deals with the provision of amendment of the pleadings.

RULE 16Striking out pleadings - The court may at any stage of the proceedings order to be struck out or amended any matter An any pleading(a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or(c) which is otherwise an abuse of the process of the court.In Sathi Vijay Kumar v. Tota Singh, (2006) 13 SCC 353 SC held the court is empowered to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious, or tends to prejudice, embarrass or delay the fair trail of the suit or is otherwise an abuse of the process of the court.Generally, a court does not advise parties as to how they should draft their pleadings. But this is subject to the rider that the parties do not offend the rules of pleadings by making averments or introducing pleas which are unnecessary, which may tend to prejudice, embarass or delay fair trail.However, In Abdul Razak v. Mangesh, (2010) 2 SCC 436 The power to strike out pleading is extraordinary in nature and must exercised by the court sparingly and with extreme care , caution and circumspection.

RULE 17Amendment 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.

a) ObjectThe object of the Rule is that the court 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 the 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 (1884) 29 Ch D 700, 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.

b) Discretion of the CourtThe 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 Usha Balashaheb v. Kiran Appaso, AIR 2007 SC 1663 J. rightly observed All amendments ought to be allowed which satisfy the two condition (a) of not working injustice to other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.However, the Leave to amend can be refused:1) when amendment is not necessary for the purpose of determining the real question in controversy between the parties2) when 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, (1886) 16 QB 178(CA)., 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 defense 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) When the effect of the proposed amendment is to take away from the other side a legal right accrued in his favor. Every amendment should be allowed if it does not cause injustice or prejudice to the other party.In Weldon v. Neal (1887)19 QB 394(CA) -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) When 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.

c) Who may apply?

It is the plaintiff or the defendant who may apply for amendment of the pleadings. Where there are two or more plaintiffs or defendants in a suit, one or more plaintiffs or defendants may make such application. However, when an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an objection against such prayer. But, if the amendment is purely formal or technical in nature, no issuance of notice is not material.

d) Recording of reasons

While deciding the application for amendment of pleading, the court must apply its mind and should record reasons for allowing or not allowing the amendment.

e) PrinciplesProvisions relating to amendment of pleading must be liberally construed with a view to promote the ends of justice and not to defeat them.

In Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, (2006) 4 SCC 385, at paras 15 & 16:"15. 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.16. 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 and 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.

In Pirgonda HongondaPatil v. Kalgonda Shidgonda Patil ,AIR 1957 363 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

Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626, at para 5:"5. As noted herein 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 refuse the amendment."

Ordinarily, in Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84 -the following principles should be borne in mind in dealing with the applications for amendment of pleadings:i) all amendments should be allowed which are necessary for the determination of the real controversies in the suit.ii) The proposed amendment should not alter and be substitute for the cause of the action on the basis of which original lis was raisediii) Inconsistent and contradictory allegation in negation to the admitted position of facts or mutually destructive allegation would not allowed to be incorporatediv) Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costsv) Amendments of claim or relief barred by time should not be allowed vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of timevii) no party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between the partiesviii) the delay in filing petition for amendments of pleadings should be properly compensated for by costs;ix) error or mistake which is not fraudulent should not be made a ground for rejecting the application for the amendments of pleadingsx) the above principles are illustrative and not exhaustive

f) At any stage of proceedings Leave to amend may be granted before, or at, or after the trail, or in First Appeal or in Second Appeal or in Revisions or in Supreme Court, however proviso to Rule 17, reads no such amendment should be allowed after the commencement of the trail unless it comes to conclusion that in spite of due diligence, the matter could not have been raised by party before the commencement of the trail. No period of limitation is prescribed either in the CPC or in the Limitation Act for making an application of amendment. But it is a well-settled ordinarily, an amendment of the pleading should be allowed if the effect of such amendment is to deprive a party of a right which he has acquired by virtue of the law of limitation.

g) Successive applicationsAs a general rule, once an application for amendment is rejected on merits, second application on the same averments is not maintainable. But, if there is change in circumstances, an application for amendment may be filed provided no prejudice is caused to the other side. Similarly, a fresh application would also lies if earlier one is withdrawn or dismissed for default or not decided on merits.

h) On such terms as may be just

The rule confers discretion on the court as to the terms to be imposed while granting an amendment of pleadings. Generally, amendment will be allowed on payment of the costs to the opposite party by the party amending his pleadings. The cost awarded, however, should be reasonable and not exemplary. In Bijendra Nath v. Mayank Srivastava, 1994 AIR 2562 - the SC held that the doctrine of estoppel precluding the party from challenging an order of amendment would apply where the party has accepted the costs as condition precedent to the amendment. This principle cannot be invoked in case where discretion issued for payment of costs is independent of the exercise of discretionary power of the court.

RULE 18Failure to amend after Order -If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be unless the time is extended by the court.

If a party, who has obtained an order for leave to amend, does not amend accordingly within the time specified for that purpose in the order or if no time is amend after the expiry of the specified time or of 14 days unless the time is extended by the courts. Again, the court has discretion to extend the time even after the expiry of the period originally fixed.

In Bachraj Factories (P) Ltd. V. Paramsukhdas, AIR 1993 Bom 175 -The reason is simple. We cannot be oblivious of facts of life, namely, the parties in courts are mostly ignorant and illiterate- unversed in law. Sometimes their counsel are also inexperienced and not properly equipped and the court should endeavor to ascertain the truth to do justice to the parties.

CONCLUSION

In view of the aforesaid, it can be concluded that the amendment of pleadings cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily. However, the discretion to be exercised by the Court is guided by the principles mentioned hereinabove and depends on the facts and circumstances of each case. Thus, rational behind the provision of Order VI Rule 17 of the Code of Civil Procedure, 1908 can be summarized as "Court shall allowapplication of amendment if granting of an amendmentreally subserves ultimate cause of justice and avoidsfurther litigation

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