Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings . Pleadings are the case of the Plaintiff or the Defendant in Plaint And Written statement respectively. An amendment can be by way of altering something, modifying something or deleting something.
Order 6 Rule 17 of the
Code of Civil Procedure runs as under,
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.
Above provisions makes it ample clear that Order 6 Rule 17
commences with the words "the court may at any stage of the
proceedings" and thereafter, goes on to confer a power to allow either
party to alter or amend his pleadings, where it appears to the court that the
amendment is necessary for the purpose of determining the real questions in
controversy.
The proviso, however, qualifies the prohibitory expression by the use of the words "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" thereby clarifying that the embargo is not absolute and the court, may if circumstances so permit, allow an amendment after the commencement of the trial.
Due Diligence :- "Due
diligence" means reasonable diligence; it means such diligence as a
prudent man would exercise in the conduct of his own affairs. It is clear
that unless the party takes prompt steps, mere action cannot be accepted
and file a petition after the commencement of trial.”
Commencement of Trial :- The moment the
first witness to be examined in the case entered the witness box, and the
Court started recording the evidence, the trial of the suit
commenced.
However, with the introduction of process of filing of
affidavits in lieu of chief-examination, the occasion for the Court to apply
its mind at the stage of chief-examination would arise only when the documents
mentioned in the affidavit are taken on record, after satisfying itself as
to admissibility and relevance.
The safest approach seems to be that the trial of the suit can be
said to have commenced when the trial Court makes the chief-examination of
the first witness in the suit presented in the form of an affidavit, as
part of record, after verification of its content, and on an examination
of the documents mentioned therein
from the point of view of admissibility, and when such witness
is available for cross-examination by the opposite party.
In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (UOI) AIR 2005 SC 3353.Chief Justice Y.K. Sabharwal speaking for the Bench observed as under :-
" Order 6 Rule 17 of the Code 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 inspite 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 has to be shown that in spite of due diligence, such
amendment could not have been sought earlier. The object is to prevent
frivolous applications which are filed to delay the trial. There is no
illegality in the provision."
Factors to be taken into consideration while dealing with
applications for amendments :-
In Revajeetu
Builders & Developers Vs Narayanaswamy & Sons & Others (2009) 10
SCC 84 the Supreme Court on
critically analyzing both the English and Indian cases formulates certain basic
principles which ought to be taken into consideration while allowing or
rejecting the application for amendment. They are
(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 lead to injustice or lead to multiple
litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally
changes the 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.
Costs:-
The Courts have consistently laid down that for unnecessary delay
and inconvenience, the opposite party must be compensated with costs. The
imposition of costs is an important judicial exercise particularly when the
courts deal with the cases of amendment. The costs cannot and should not be
imposed arbitrarily.
In Revajeetu
Builders & Developers Vs Narayanaswamy & Sons & Others (2009)
10 SCC 84 the Supreme Court
formulates the following parameters that must be taken into consideration
while imposing the costs. These factors are illustrative in nature and not
exhaustive. They are
(i) At what stage the amendment was sought?
(ii) While imposing the costs, it should be taken into
consideration whether the amendment has been sought at a pre-trial or
post-trial stage;
(iii)The financial benefit derived by one party at the cost of
other party should be properly calculated in terms of money and the costs be
awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic;
(v) The delay and inconvenience caused to the opposite side must
be clearly evaluated in terms of additional and extra court hearings compelling
the opposite party to bear the extra costs.
(vi) In case of appeal to higher courts, the victim of amendment is
compelled to bear considerable additional costs.
All these aspects must be carefully taken into consideration while
awarding the costs.
Cases where amendment of pleadings (plaint and written statement)
was allowed after the commencement of trial :-
The Apex Court in Peethani
Suryanarayana V. Repaka Venkata Ramana Kishore AIR 2009 SC 2141 held that Court holds power to allow
such amendment, provided the application is bonafide and does not cause
injustice to either side and does not affect the rights already accrued to the
other side.
It was on facts in the suit for partition amendment of plaint
saying some typographical error is there as to subject matter that requires
correction when it causes no prejudice to the so called pendentelite purchasers
of suit land by correction of survey Nos.462 and 463 from what plaint
originally described of Survey No.165, when that Survey No.165 is reassigned as
463 and the mentioning is to correct the typographical mistake.
The court concludes that the amendment sought is for the purpose
of bringing to the record the real question in controversy between the parties
and refusal to permit the amendment would create needless complications at the
stage of execution in the event of the appellant-plaintiff succeed in the suit.
Recently, in J.Yadagiri
Reddy and others vs. J.Hemalatha and others 2016 (3) ALT 211, the High
Court of Judicature at Hyderabad observed that even in cases where an
application for amendment is filed after commencement of trial, the amendment
should be allowed if the amendment sought does not require any evidence to be
led specifically or additionally by either of the parties to decide the rights
of the parties as the object of the Court should be not to punish a party for
any mistake committed in filling the plaint initially.
In Sampath Kumar
Vs. Ayyakannu AIR 2002 SC 3369, Application
for amendment made 11 years after the date of the institution of the suit to
convert through amendment a suit for permanent prohibitory injunction into a
suit for declaration of title and recovery of possession was allowed holding,
the basic structure of the suit is not altered by the proposed amendment and if
it is permissible for the plaintiff to file an independent suit, why the same
relief which could be prayed for in a new suit cannot be permitted to be
incorporated in the pending suit by allowing the amendment that would curtail
multiplicity of legal proceedings.
In Mahila Ramkali Devi And Ors vs Nandram Thr. Lrs.& Ors (2015)
13 SCC 132 an amendment was allowed after 40 years from the date of
institution of the suit. The issue involved in the said case was that as per
the law prevailing at the time when the suit was instituted, the right of a
land-owner (bhumiswami) to transfer his land by way of a will was not
recognized by law when the land was transferred by way of will dated 21.01.1961
and under the said background, the plaintiff had prayed for amendment to add
the name of minor sons and for alternative relief of succession de- hors the
will, which was ultimately allowed by the Hon'ble Apex Court.
In P.Durga Reddy
and another v. B.Yadi Reddy, 2016 (2) ALT 63, It was observed that delay itself is
not a ground to reject the amendment when it can be allowed on other
considerations. Delay can be compensated by costs in such cases.
Amendment of pleadings after the commencement of trial has also
been allowed in the following cases :-
Davinder Singh vs Surjit Malhotra 126 (2006) DLT 102
Harish Chander vs Bharti Bhardwaj 118 (2005) DLT 112
State of AP v. Pioneer Builders, 2007 (1) ALT 43 (SC)
Rajesh Kumar Aggarwal & Ors vs K.K. Modi & Ors (2006)
4 SCC 385
Veluri Raja Rajeswari v. Veluri Santhansagar Reddy, 2014 (2) ALT
526.
Sarabjit Kaur vs Joginder Singh Bamra 2016(1) PLR 719
Sameer Suresh Gupta v. Rahul Kumar Agarwal, (2013) 9 SCC 374
In Sajjan Kumar
vs. Ram Kishan [2005 (13) SCC 89] Three-Judge Bench of Supreme Court
allowed amendment even at the stage of execution.
Amendment of pleadings at an appellate stage:-
In Ishwardas V.
The State of Madhya Pradesh & Ors., AIR 1979 SC 551 while considering a case of amendment
under Order 6 Rule 17 seeking amendment in the written statement at an
appellate stage, the Apex Court held as under:- “There is no impediment or bar
against an appellate court permitting amendment of pleadings. So as to enable a
party to raise a new plea, all that is necessary is that the appellate court
should observe the well known principles subject to which amendments of
pleadings are usually granted.
" Naturally, one of the circumstances which will be taken
into consideration before an amendment is granted, is the delay in making the
application, and if amendment is made at appellate stage, the reason why it was
not sought in the trial court."
" If the necessary material on which the plea arising from
the amendment may be decided is already there, the amendment may be more
readily granted than otherwise. But, there is no prohibition against an
appellate court permitting an amendment at the appellate stage merely because
the necessary material is not already before the Court.”
In North Eastern
Railway Administration, Gorakhpur V. Bhagwan Das (D) by L.Rs., 2008 AIR SCW
3159, the Court held that
amendment of pleadings at an appellate stage is permissible if it does not
cause injustice to other party and is necessary to determine the question in
contravention.
In Nagappa Vs
Gurudayal Singh & Ors., AIR 2003 SC 674, the Supreme Court held that amendment
can be allowed even at an appellate stage in a case where the law of limitation
is not involved and the facts and circumstances of the particular case so
demand, in order to do justice to the parties.
The case involved therein was under the provisions of Sections
166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not
provide for any limitation with respect to filing the claim petition, the
amendment at the appellate stage was allowed. A right accrued in favour of a
party by lapse of time cannot be permitted to be taken away by amendment.
Amendment can also be allowed at the appellate stage. Introduction
of an entirely new case, displacing admissions by a party is not
permissible. (See: Pirgonda Hongonda Patil V. Kalgonda Shidgonda
Patil & Ors., AIR 1957 SC 363; Nanduri Yogananda Laxminarsimhachari &
Ors. V. Sri Agasthe Swarswamivaru, AIR 1960 SC 622; M/s Modi Spinning &
Weaving Mills Co. Ltd. V. M/s Ladha Ram & Co., AIR 1977 SC 680; Ishwardas
V. State of M.P., AIR 1979 SC 551; and Mulk Raj Batra V. District Judge,
Dehradun, AIR 1982 SC 24)
In Kankarathanammal
V. V.S. Longanatha Mudaliar & Anr., AIR 1965 SC 271; and M/s. Ganesh Trading Company
V. Mauji Ram, AIR 1978 SC 484, it
was held that amendment Application can be moved at any stage of the
proceedings, even at the appellate stage.
However in the following cases amendment of pleadings was not
allowed after Commencement of trial
In Vidyabai &
Ors. V. Padmalatha & Anr., (2009) 2 SCC 409, the Apex Court held that
the provisions of Order 6 Rule 17 are caused in mandatory form. Therefore, the
Court may not allow the application for amendment after commencement of the
trial. (See also: Ashutosh
Chaturvedi V. Prano Devi, (2008) 15 SCC 610; and South Konkan Distilleries
& Anr. V. Prabhakar Gajanan Naik & Ors., AIR 2009 SC 1177).
The Apex Court in Chandra Kanta
Bansal v. Rajinder Singh Anand, (2005) 6 SCC 344, held
that in a suit for injunction restraining the defendant from obstructing the
lane in the suit property, defendant seeking amendment of written statement
after closure of evidence of both sides to file partition agreement that was
not brought in the course of evidence and the same when allowed by amendment to
bring in evidence tantamounts to retracting what was pleaded in the written
statement and said amendment cannot be allowed for lack of due diligence, in
saying that while exercise of discretion care should be taken to see that
injustice and prejudice of an irremediable character are not inflicted upon the
opposite party under pretence of allowing amendment. It was also held that an
amendment which appears clearly to be an afterthought to be disallowed.
(See also - S.Rajendran vs K.Kanniah & others (2010) 3
MLJ 215 ; J.Samuel & Ors vs Gattu Mhesh & Ors (2012) 2 SCC 300)
Amendment application filed at an unduly delayed stage :-
In Jayanti
Roy V. Dass Estate (P) Ltd., AIR 2002 SC 2394, the Supreme Court held that
amendment application should be moved at a proper stage. Application filed
at an unduly delayed stage should normally be rejected.
If the plaintiff wants to add certain facts, which the plaintiff
had not chosen to mention in the original plaint and the same were in his
knowledge when the plaint was instituted it can be done. However, the plaintiff
cannot be allowed to make fresh allegation of facts by way of amendment at a
belated stage. amendment of pleadings at a belated stage is not
permissible as it could not be permissible by the provisions contained in the
proviso to Order 6 Rule 17.
(See: Chaturvedi V. Prano Devi & Ors., 2008 AIR SCW 3352, Gopal Krishanamurthi V. Shreedhara Rao, AIR 1950 Mad. 32; and Gauri Shankar V. M/s Hindustan Trust (Pvt) Ltd., AIR 1972 SC 2091)
(See: Chaturvedi V. Prano Devi & Ors., 2008 AIR SCW 3352, Gopal Krishanamurthi V. Shreedhara Rao, AIR 1950 Mad. 32; and Gauri Shankar V. M/s Hindustan Trust (Pvt) Ltd., AIR 1972 SC 2091)
However in Pankaja
& Anr. V. Yellappa (Dead) by L.Rs. & Ors., AIR 2004 SC 4102, the Supreme Court held that there is
no absolute rule that amendment should not be allowed at a belated stage in a
particular case. Even if amendment sought is barred by limitation, if the Court
after examining the facts and circumstances of the case comes to the conclusion
that amendment serves the ultimate cause of justice and avoids further
litigation, the amendment should be allowed. (Also
see:- Rajesh Kumar Aggarwal & Ors. V. K.K. Modi & Ors. , AIR 2006 SC
1647).
Thus amendment of pleadings from the above is basically for the
purpose of bringing about final adjudication in a lis and to avoid multiplicity
of proceedings and shorten litigation and where it is necessary to determine
the real controversy. It is in the interest of justice that a suit shall be
decided on all points of controversy and accordingly, it is needed that the
party shall be allowed to alter or amend their pleadings during the pendency of
the suit.
According to Order VI Rule 17 of the Code of Civil Procedure,
1908, the Court may allow the amendment at any stage of the proceedings and for
such purpose it may impose conditions i.e. in the form of cost or any other
condition.
The Court has been given discretion in this regard and the mandatory
guidelines upon the Court as well as upon the party seeking amendment is that
they shall make only such amendments which are necessary for determination of
real controversy between the parties to the suit.
At the same time, the Proviso to Order VI Rule 17 puts a mandate
upon the Court not to allow such amendment after the trail has begun (i.e. if
issues have been settled), if its finds that the party could have raised the
pleadings by due diligence at an earlier point of time.
However, the Proviso need not be given a very rigid effect in all
cases as the same is subject to the discretion of the Court, for procedural law
does not come in the way to determine real matters in controversy so to permit
for rendering substantial justice between parties and to avoid multiplicity of
proceedings and life to litigation and of anticipatory future complications.
The main object of the legislation is to enable the Court to allow
amendment at any stage and thereby delay itself is not a ground to refuse, but
for not to permit where there is by such amendment changes cause of action or
tantamounts to withdrawal clear admissions unexplained or amendment plea to
introduce is mutually destructive or where claim is time barred and allowing it
causes grave prejudice and injustice to rights accrued to other side than by
refusal.
