Supreme Court of India
Srinivas Ram Kumar vs Mahabir Prasad And Others on 9 February, 1951
A plaintiff may rely upon different rights alternatively and there is noth- ing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The ques- tion, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.
In Bhagwati Prasad v. Shri Chandramaul,  1 SCR 286 a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another."
Supreme Court of India
Ram Sarup Gupta (Dead) By Lrs vs Bishun Narain Inter College & Ors on 8 April, 1987
It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and mate- rial facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair split- ting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the plead- ings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the plead- ings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.
Supreme Court of India
Sathi Vijay Kumar vs Tota Singh & Others on 8 December, 2006
16. Striking out pleadings.The Court may at any stage of the proceedings order to be struck out or amended any matter in 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.
The above provision empowers a Court to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay fair trial of the suit or is otherwise an abuse of the process of the Court. The underlying object of the rule is to ensure that every party to a suit should present his pleading in an intelligible form without causing embarrassment to his adversary [vide Davy v. Garrett, (1878) 7 Ch D 473 : 47 LJ Ch 218]. Bare reading of Rule 16 of Order VI makes it clear that the Court may order striking off pleadings in the following circumstances;
(i) Where such pleading is unnecessary, scandalous, frivolous or vexatious; or
(b) Where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or
(c) Where such pleading is otherwise an abuse of the process of the Court.
In Halsbury's Laws of England, (4th Edn.; Vol. 9; para 38), it has been stated:
"Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, a oppressive. In such cases the court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the court by exercising its statutory powers, its powers under rules of court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a adequate of court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt".
In Supreme Court Practice, 1995, p.344 (Sweet & Maxwell), it has been observed;
"This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material".
Since the general principles as to pleadings in civil suits apply to election petitions as well, the pleadings which are required to be struck off under Rule 16 of Order VI in a suit can also be ordered to be struck off in an election petition. In appropriate cases, therefore, an election tribunal (High Court) may invoke the power under Order VI, Rule 16 of the Code.
This Court in Azhar Hussain v. Rajiv Gandhi, (1986) Supp SCC 315 indicated that the whole purpose of conferment of such powers i.e. either to dismiss election petitions in limine or striking out unnecessary, scandalous, frivolous or vexatious pleadings is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and does not embarrass the returned candidate. "The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose". It was also observed that such hanging sword of the election petition on the returned candidate would not keep him sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The precious time and attention demanded by his elected office would be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office in particular, and instead of resolving their problems, he would be engaged in defending himself in the litigation pending against him. The fact that an election petition calling into question his election is pending, may, in a given case, act as a psychological factor and may not permit him to act with full freedom. The Court, in these circumstances, may exercise the power of striking out pleadings in appropriate cases if it is warranted in the facts and circumstances of the case.
At the same time, however, it cannot be overlooked that normally a Court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the Court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the Court sparingly and with extreme care, caution and circumspection [vide Roop Lal v. Nachhatar Singh, (1982) 3 SCC 487 : AIR 1982 SC 1559; K.K. Modi v. K.N. Modi, (1998) 3 SCC 573 : AIR 1998 SC 1297; United Bank of India v. Naresh Kumar, (1996) 6 SCC 660 : AIR 1997 SC 3].
More than a century back, in Knowles v. Roberts, (1888) 38 Ch D 263, Bowen L.J. said:
"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery".
AMENDMENT OF PLEADINGS :
In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors, the court stated that Amendment of pleadings consists of two parts :
In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow application of pleadings.
In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the application of pleadings if this amendment is necessary for the purpose of determining the real questions in controversy between the parties.
CARDINAL TEST :
The cardinal test for deciding an application for amendment is that :
(i) Whether the amendment is necessary for the determination of the
real question in controversy ?
(ii) Can the amendment be allowed without injustice to other side ?
If the first condition is satisfied that the amendment is necessary to decide
the “real controversy” between the parties, the amendment should be allowed. In
other words, if there is no necessity to decide the “real controversy” between the
parties, the amendment should not be allowed.
Like the first condition, the second condition is also equally important
according to which, no amendment will be allowed which will cause injustice to
the opposite party. It is settled law that the amendment can be allowed if it can
be made without injustice to the other side. But it is also a cardinal rule that
“there is no injustice if the other side can be compensated by costs.”
Principles to be followed for dealing with the application for amendment of
Following principles to be borne in mind while dealing with the applications
for amendment of pleadings.
Provisions relating to amendment of pleadings must be liberally construed
with a view to promote the ends of justice and not to defeat them.
The purpose and object of the rules of pleadings is to decide the real
controversy between the parties and not to punish them for their
mistakes, negligence or shortcomings.
The exercise of discretionary power must be governed by judicial
considerations and the wider the discretion, the greater care and
Rule of amendment is essentially a rule of justice, equity and good
conscience and the power of amendment should be exercised in the
larger interest of doing full and complete justice to the parties before the
The court should not go into correctness or falsity of the case in the
amendment, while dealing with the application for amendment.
Supreme Court of India
M/S. Revajeetu Builders & ... vs M/S. Narayanaswamy & Sons & Ors on 9 October, 2009
We are tracing the legislative history, objects and reasons for incorporating Order VI Rule 17 not because it is necessary to dispose of this case, but a large number of applications under Order VI Rule 17 are filed and our courts are flooded with such cases. Indiscriminate filing of applications of amendments is one of the main causes of delay in disposal of civil cases. In our view, clear guideline may help disposing off these applications satisfactorily.
We deem it appropriate to give historical background of Rule 17 of Order VI corresponds to section 53 of the Old Code of 1882. It is similar to Order 21 Rule 8 of the English Law. Order VI Rule 17 CPC reads 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."
In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases.
It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment.
In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs.
To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. According to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened.
The general principle is that courts at any stage of the proceedings may allow either party to alter or amend the pleadings in such manner and on such terms as may be just and all those amendments must be allowed which are imperative for determining the real question in controversy between the parties. The basic principles of grant or refusal of amendment articulated almost 125 years ago are still considered to be correct statement of law and our courts have been following the basic principles laid down in those cases.
In the leading English case of Cropper v. Smith, the object underlying amendment of pleadings has been laid down by Browen, L.J. in the following words:
"It is a well established principle that the object of the courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights ... 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 matters in controversy, and I do not regard such amendment as a matter of favour or grace ... it seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right."
In Tildersley v. Harper which was decided by the English Court even earlier than the Cropper's case (supra), in an action against a lessee for setting aside a lease, in the statement of claim it was alleged that the power of attorney of donee had received specified sum as a bribe. In the statement of defence, each circumstance was denied but there was no general denial of a bribe having been given. A prayer for amendment of the defence statement was refused.
The Court of Appeal held that the amendment ought to have been allowed. Bramwell, L.J. made the following pertinent observations:
"I have had much to do in Chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise."
In another leading English case Weldon v. Neal, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment.
On the date of the application, those claims were barred by limitation though they were within the period of limitation on the date of filing the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him.
The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.( Ganga Bai v. Vijai Kumar (1974) 2 SCC 393; Arundhati Mishra v. Sri Ram Charitra Pandey (1994) 2 SCC 29)
In Steward v. North Metropolitan Tramways Co., 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 defence 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.
In the said case, Pollock, J. quoting with approval the observation of Bremwell, LJ. rightly observed: "The test as to whether the amendment should be allowed is, . whether or not the defendants can amend without placing the plaintiff in such a position that he cannot be recouped, as it were, by any allowance of costs, or otherwise. According to him such an amendment ought not be allowed."
Kisandas v. Rachappa Vithoba- is probably the first leading case decided by the High Court of Bombay under the present Code of 1908. There, A, plaintiff, averred that in pursuance of a partnership agreement, he delivered Rs.4001 worth of cloth to B, defendant, and sued for dissolution of partnership and accounts. The trial court found that A delivered the cloth worth Rs.4001 but held that there was no partnership and the suit was not maintainable. In appeal, A sought amendment of adding a prayer for the recovery of Rs.4001. On that day, claim for recovery of money was barred by limitation. The amendment was allowed by the appellate court and the suit was decreed. B challenged the decree. The High Court upheld the order and dismissed the appeal. Referring to leading English decisions on the point, Batchelor, J. stated:
"From the imperative character of the last sentence of the rule it seems to me clear that, at any stage of the proceedings, all amendments ought to be allowed which satisfy the two conditions (a) of not working in justice to the other side, and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties."
42. In a concurring judgment, Beaman, J. observed that "the practice is to allow all amendments, whether introducing fresh claims or not, so long as they do not put the other party at a disadvantage for which he cannot be compensated by costs."
His Lordship proceeded to state:
"In my opinion two simple tests, and two only, need to be applied, in order to ascertain whether a given case is within the principle. First, could the party asking to amend obtain the same quantity of relief without the amendment? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage, it allows his opponent to obtain more from him than he would have been able to obtain but for the amendment. Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed."
In Amulakchand Mewaram & Others v. Babulal Kanalal Taliwala , the Bombay High Court again had an occasion to decide a case under Order VI Rule 17. In that case, the Court approved the following observations of Beaumont, C.J. and observed:
"... the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of existing persons. If the former is the case, the suit is a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs."
. In L.J. Leach & Co. Ltd. & Another v. Jardine, Skinner & Co., a suit for damages for `conversion of goods' filed by the plaintiff was decreed by the trial court but the decree was set aside by the High Court. In an appeal before this Court, the plaintiff applied for amendment of the plaint by raising an alternative claim for damages for breach of contract for `non-delivery of goods'. The amendment was resisted by the defendant contending that it sought to introduce a new cause of action which was barred by limitation on the day the amendment was sought and, hence, it would seriously prejudice the defendant.
Though the Court noticed `considerable force' in the objection, keeping in view the prayer in the amendment which was not `foreign to the scope of the suit' and all necessary facts were on record, it allowed the amendment.
In P.H. Patil v. K.S. Patil, A obtained a decree for possession against B. He was, however, obstructed in obtaining possession by C in execution. A then filed a substantive suit against B and C. In the plaint, except saying that he had obtained a decree against B, nothing more was stated by A. Hence, he filed an application for amendment which was rejected by the trial court but allowed by the High Court. C approached this Court.
Dismissing the appeal and confirming the order of the High Court, this Court observed that the discretionary power of amendment was not exercised by the High Court on wrong principles. There was merely a defect in the pleading which was removed by the amendment. The quality and quantity of the reliefs sought remained the same. Since the amendment did not introduce a new case, the defendant was not taken by surprise.
In Pursuhottam Umedbhai & Co. v. Manilal & Sons a suit was instituted in the name of the firm by the partners doing business outside India. It was held that there was only mis-description of the plaintiff. The plaint in the name of the firm was not a nullity and could be amended by substituting the names of partners.
49. In similar circumstances, in a subsequent case Ganesh Trading Co. v. Moji Ram this Court reiterated the law laid down in Purushottam Umedbhai & Co. (supra). The Court observed:
"It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action.
A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation; to be put on every defective state of pleadings. Defective pleadings are generally curable, if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."
In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal Kabrawala & Others , the defendant's prayer for amendment by treating a counter claim as cross-suit was objected to by the plaintiff inter alia on the ground of limitation. The amendment, however, was allowed.
When the matter reached this Court, while affirming the order of the High Court, the majority stated:
".....It is, no doubt, true that, save in exceptional cases, leave to amend under O. 6, r.
17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only when either fresh allegations are added or fresh reliefs sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, it has never been held that the question of a bar of limitation is one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading."
The Court further observed that since there was no addition to the averments or relief, it was not possible to uphold the contention of the plaintiff that by conversion of written statement into a plaint in a cross-suit, a fresh claim was made or a new relief was sought. To the facts of the present case, therefore, the decisions holding that amendments could not ordinarily be allowed beyond the period of limitation and the limited exceptions to that rule have no application.
In Jai Jai Ram Manohar Lal v. National Building Material Supply, A sued B in his individual name but afterward soughts leave to amend the plaint to sue as the proprietor of a Hindu Joint Family business. The amendment was granted and the suit was decreed. The High Court, however, reversed the decree observing that the action was brought by a `non-existing person'.
Reversing the order of the High Court, this Court (per Shah, J., as he then was) made the following oft- quoted observations:
"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party Applying, was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." (Emphasis Added)
In Ganga Bai v. Vijay Kumar, an appeal was filed against a mere finding recorded by the trial court. After a lapse of more than seven years, amendment was sought by which a preliminary decree was challenged which was granted by the High Court by a laconic order.
Setting aside the order of the High Court, this Court stated:
"The preliminary decree had remained unchallenged since September 1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
. In Haridas Aildas Thadani & Others v. Godraj Rustom Kermani20 this Court said that "It is well settled that the court should be extremely liberal in granting prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.
In B. K. Narayana Pillai v. Parameshwaram Pillai & Another, a suit was filed by A for recovery of possession from B alleging that B was a licensee. In the written statement B contended that he was a lessee. After the trial began, he applied for amendment of the written statement by adding an alternative plea that in case B is held to be a licensee, the licence was irrevocable. The amendment was refused.
Setting aside the orders refusing amendment, this Court stated:
"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. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the Supreme Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs.
Technicalities of law should not be permitted to hamper the courts in, the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
60. In Suraj Prakash Bhasin v. Raj Rani Bhasin & Others22, this Court held that liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should not be substituted for anther and that the subject- matter of the suit should not be changed by amendment.
WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:
61. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment.
NO PREJUDICE OR INJUSTICE TO OTHER PARTY:
The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to 22 (1981) 3 SCC 652 other side. Ordinarily, if other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
63. The Courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care.
In Ganga Bai's case (supra), this Court has rightly observed:
"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."
65. 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 our view, the following parameters must be taken into consideration while imposing the costs. These factors are illustrative in nature and not exhaustive.
(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 considera- tion while awarding the costs.
66. The purpose of imposing costs is to:
a) Discourage malafide amendments designed to delay the legal proceedings;
b) Compensate the other party for the delay and the inconvenience caused;
c) Compensate the other party for avoidable expenses on the litigation which had to be incurred by opposite party for opposing the amendment; and
d) To send a clear message that the parties have to be careful while drafting the original pleadings.
FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS:
On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1) Whether the amendment sought is im-perative 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 in fact
lead to injustice or lead to multi-
(5) Whether the proposed amendment con-
stitutionally 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
These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
When can amendment of Plaint or Written Statement be allowed or refused.
Hon'ble Supreme Court in the case of Usha Balashaheb Swami and Ors.
v. Kiran Appaso Swami and Ors.( AIR 2006 SC 1663) has held that : A prayer
for amendment of the plaint and a prayer for amendment of the written
statement stand on different footings. The general principle that
amendment of pleadings cannot be allowed so as to alter materially or
substitute cause of action or the nature of claim applies to amendments to
plaint. It has no counterpart in the principles relating to amendment of the
written statement. Therefore, addition of a new ground of defence or substituting
or altering a defence or taking inconsistent pleas in the written statement would
not be objectionable while adding, altering or substituting a new cause of action in
the plaint may be objectionable. In the case of amendment of a written statement,
the Courts are more liberal in allowing an amendment than that of a plaint as the
question of prejudice would be far less in the former than in the latter case.
If the amendment is allowed, it takes away jurisdiction of Court
Merely the proposed amendment will takes away the pecuniary
jurisdiction of the court, the amendment should not be refused. What all the
Court can do is to allow the amendment, direct the plaintiff to carry out the same
in the plaint, correct or modify the court fee and valuation para of the plaint and
then, if the suit value exceeds its pecuniary limits, it shall return the plaint to be
presented at proper Court – Koka Venkata Ramanaiah Naidu vs. Karnam
Venkata Ratnam – 2010 (6) ALT 133
APPLICABILITY TO OTHER PROCEEDINGS
Order VI Rule 17 is applicable not only to suits, but it is also applicable to
insolvency proceedings, arbitration proceedings, election matters, execution
proceedings, proceedings under Land Acquisition Act, matrimonial disputes, Rent
Control Acts etc.
DOCTRINE OF RELATION BACK :
Normally, an amendment relates back to the date of pleadings, but the
doctrine is not absolute, unqualified or of universal application. In appropriate
cases, the court may order that the amendment would take effect from the date of
application was made or the amendment was allowed and not from the date
when the plaint or written statement was made.
Liberal Approach to Order 6 Rule 18 is advised :
For the inability to carry out such amendment within the time of 14 days or
within the time prescribed by the Court, the plaintiff should not be deprived of the
benefit of the amendment. The inconvenience caused to the defendant may be
compensated by awarding suitable costs. It is said, that the procedure under
Rule 18 of Order 6 should not be applied so rigorously and with hyper-technical
stress that it breaks the strings of substantial justice – Salmona Villa
Cooperative Housing Society Ltd. vs. Mary Fernandez and others – AIR 1997
CASE LAWS :
→ Whenever an application for amendment is allowed, there should be
finding by a court that the Court is satisfied that inspite of due diligence,
the party could not introduce amendment before commencement of the
trial – Pandit Malhari Mahale vs. Monika Pandit Mahale and others –
Civil Appeal No. 189 of 2020 dt: 10-01-2020
→ Court has to primarily decide whether amendment is necessary for
determining the controversy – Rajesh Kumar Aggarwal vs K.K. Modi –
AIR 2006 SC 1647
→ Pre-trial amendments are to be allowed liberally – Rajkumar Gurawara
vs M/s. S.K. Sarwagi and Co. Pvt. Ltd. - AIR 2008 SC 2303
→ It is true that inconsistent pleas can be made in plead- ings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irre- trievably prejudiced by being denied the opportunity of extracting the admission from the defendants. –
Modi Spg. & Weaving Mills Co. Ltd. Vs Ladha Ram & Co. - (1976) 4
→ An admission can not be withdrawn by way of amendment of pleadings,
but it can be explained or clarified by way of amendment - Heeralal vs.
Kalyanlal - (1998) 1 SCC 278.
→ By amendment of written statement, an admission made in the original
written statement can be explained even by taking inconsistent pleas or
altering the defence – Sushikumar Jain vs. Manoj Kumar – AIR 2009
→ One cause of action cannot be substituted for another, by way of
amendment. Similarly the effect of admission cannot be taken away.
Defendant can elaborate his defence or can take additional pleas in
support of his case – Bollepanda P. Poonachao vs. K.M. Mandapa,
AIR 2008 SC 2003
→ By amendment the admission in the original pleadings cannot be sought
to be got rid of - Gautam Sarup vs. Leela Jetly - (2008) 7 SCC 85.
→ Mere denial of plaint averments is not a categorical or unequivocal
admission. By Amendment of written statement it can be resiled –
Sumesh Singh vs. Phoolan Devi – AIR 2009 SC 2831
→ A defendant cannot resile from an admission made in a written statement
by taking recourse to Order 8, Rule 9 or Order 6 Rule 16 CPC by
seeking to file a fresh WS – S. Malla Reddy vs. M/s. Future Builders
Co-op Housing Society and otehrs – AIR 2013 SC 3693
→ By amendment of plaint, the party cannot seek to alter the basic
structure of the suit – Alkapuri Cooperative Housing Society Ltd., vs.
Jayanthibhai Nagin bhai – AIR 2009 SC 1948
Trial is deemed to commence when issues are settled and when the
case is set down for recording of evidence – Ajendraprasadji N. Pande
vs. Swami Keshavprakeshdaji N – AIR 2007 SC 806
→ Delay in filing application is no ground to disallow the amendment –
Surendra Kumar Sharma vs. Makhan Singh - (2009) 10 SCC 626.
→ In the interests of justice to avoid further litigation, even a belated
amendment can be allowed – Pankaja vs. Yellappa – AIR 2004 SC
→ Amendment seeking reliefs of declaration of title and recovery of
possession can be ordered in a suit for injunction. On the mere ground of
delay, amendment is not to be refused. An amendment relates back to
date of suit, unless the court directs otherwise in any appropriate case –
Sampath Kumar vs. Ayya Kannu – AIR 2002 SC 3369
→ Dominant purpose of the rule is to minimise litigation, enabling the Court
to decide all issues in one suit – Moguluri Venkata Subbarao vs. Syed
Khasim Saheb – 2003(3) CCC 18(AP)
→ Main purpose of allowing amendment is to minimize litigation and plea
that relief sought by way of amendment was barred by time is to be
considered in light of facts and circumstances of each case – Abdul
Rehman vs. Mohd. Ruldu - (2012) 11 SCC 341.
→ The proviso to Or. 6 R. 17 CPC is subject to taking place of subsequent
events during the proceedings of the suit, and amendments can even be
allowed at appellate stage, when no injustice is going to be caused to
opposite party – Boya Pikkili Pedda Venkataswamy vs. Boya
Ramakrishnaudu - 2013(2) ALT 214.
→ Leave of Court or Amendment Petition is not necessary to add new
details while representing a returned plaint and before its registration –
N. Tyagaraja vs. S. Narayana Swamy – 2014(1) ALD 108
→ Conditions to be satisfied for allowing amendment after commencement
of trial - Narne Estates Pvt.Ltd. Rep.by its Chairman vs. N.Gopal
Reddy - (2011)5ALD 445
In general, the following types of amendments can be ALLOWED by the
grant of consequential relief
to avoid multiplicity of proceedings
taking notice of subsequent events
where the amendment is a formal in nature
to clarify the pleadings
where the parties in the plaint are wrongly described
where some properties are omitted from the plaint by inadvertance
where there is a mistake in the statement of cause of action
Bonafide omission in making the necessary averments in the plaint
In general, in following cases leave to amendments can be REFUSED by the
Where it is not necessary to determine the real question in controversy
Introducing totally different, new and inconsistent case or changes the
fundamental character of the suit or defence.
Where the effect of the proposed amendment is to take away from the
other side a legal right accrued in his favour.
when it is not bonafide.
Vidyabai vs. Padmalatha (AIR 2009 SC 1433) The date on which the
issues are framed is the date of first hearing. Provisions of the Code of Civil
Procedure envisage taking of various steps at different stages of the
proceeding. Filing of an affidavit in lieu of examination in chief of the
witness, would amount to 'commencement of trial'
Baldev Singh vs. Manohar Singh(AIR 2006 SC 2832)- ‘Commencement
of trial’ must be understood in the limited sense as meaning the final
hearing of the suit, examination of witnesses, filing of documents and
Brij Gopal Pallod & others vs. Municipal Council, Zaheerabad(2013(2)
ALT 353)- The trial of suit 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
Amendment of Pleadings when granted:
In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary conditions to be satisfied before granting leave for amendment of pleadings:
This grant of leave should not leads to the injustice to other party.
This Amendment of pleadings is necessary for determining the real question of controversy between parties.
In the case of Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd. And Anr, the honorable Supreme Court stated certain conditions when amendments of Pleadings can be allowed they are:
When nature of the case will change by allowing application for amendment of appeal
When a new cause of action arise by allowing application of an amendment
When Amendments of Pleadings defeats the law of limitation.
Other points on which Amendments of Pleadings is granted:
When the application of amendment is filed to avoid multiplicity of suits.
When parties in the plaint or written statements wrongfully described.
When the plaintiff omits to add some properties to the plaint.
Amendment of Pleadings when refused:
Application of amendment of Pleadings is rejected by the court when this amendment is not necessary for determining the real question of controversy between parties.
Application of amendment of pleadings is rejected when it leads to the introduction of a totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons Supreme Court held that “ the defendant cannot be allowed to change completely the case made in certain paragraphs of the written statement and substitute an entirely different and new case”.
When the Plaintiff or defendant is negligent
When proposed alteration or modification is unjust
Application for Amendments of Pleadings is refused when it violates the legal rights or cause injustice to the other party
Leave to amend is refused when it leads to the needless complications in the case.
Leave to amend is refused when there has been excessive delay by the parties in filing the suit.
Application of Amendment is refused when it changes the nature of the disputes
The court will not grant application of amendment of pleadings if it is made with mala fide intention.
Where several opportunities are given to parties to apply for amendment of pleadings. But they failed to make an application.
Procedure for filing an application for Amendment of Pleadings:
Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an application for the amendment of pleadings to the concerned civil court
Step 2 – After drafting the application applicant needs to produce the application before the concerned civil judge.
Step 3 – You have to pay a required court fee under court fees Act, 1870.
Step 4- Applicant needs to tell the purpose of the alteration in his application.
Step 5 – Judge will read the application and if he thinks fit that this alteration or amendment is necessary for the purpose of determining the real questions in controversy between the parties Than he will grant permission for amendment for pleading.
Step 6 – After getting the order from the court, the applicant needs to file new pleadings within the prescribed time and if no time has been prescribed by the court then he needs to file it in 14 days from the date of order.
Step 7 – You also need to give a copy of altered pleadings to the opposite party
Can the pleadings be amended if the suit is debarred by the Limitation Act :
In the case of L.J. Leach & Co. Ltd. v. Jardine Skinner & Co8, the Supreme Court stated that court can decline the application of amendment of pleadings if it is debarred by the Limitation Act. But the court has discretionary power to allow this application to secure ends of justice. The limitation can be ground for rejecting the application but the court can allow if the court thinks that amendment is necessary.
In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, the court stated that it is settled principle that court can disallow the application of amendment if on the date of the filing of Application it is barred by the limitation. But this not mean that court cannot order grant for Application. For securing the interest of justice, the court has discretionary power to allow application of amendment of pleading.
In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors, the court held that there is no settled principle that which states that court can reject the application of amendment if on the date of filing the application it is barred by limitation. The court stated the discretion to allow or not to allow application depends on the factual background of the case. If facts & circumstance of the case clearly establishes that this amendment is necessary to determine the cause of action and to avoid further litigation then the court should allow this application.
In the case of Ragu Thilak D. John v. S. Rayappan , the court stated that it is disputed fact that application of amendment will be allowed or not when it is barred by the Limitation. But in many cases, the issue of limitation is made an issue in the suit, In those cases, application of amendment is allowed for disposing of the case.
In the case of Vishwambhar v. Laxminarayan, the court held that application for amendment of Pleading is to the relate back to a filling of the date of application not to the date of filing of the suit.
In the recent Judgement of the Hon'ble Supreme Court in L.C.Hanumanthappa represented by his L.Rs. V. H.B.Shivakumar after referring the Judgements of the Hon'ble Supreme Court and High Court dealing Order 6 Rule 17 including Sampath Kumar V. Ayyakannu and Another, [(2002)7 SCC 559] has concluded as under:
Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16th May, 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated para in the written statement, namely, para 2 by the Trial Court on the facts of this case has been correctly commented upon adversely by the High Court in the judgement under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgement dated 28th March, 2002, had expressly remanded the matter to the Trial Court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels Private Limited (Supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff's title. By 16th May, 1993, therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the Court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away.
AMENDMENT OF PLAINT IN EXECUTION PROCEEDINGS? (IN CONTEXT OF SECTION 22 SPECIFIC RELEF ACT)
IN THE SUPREME COURT OF INDIA
Petition for Special Leave to Appeal (Civil) No. 7771. of 1981
Decided On: 29.01.1982
Babu Lal Vs. Hazari Lal Kishori Lal and Ors.
The Supreme Court in P.C. Varghese, supra, which has been cited on behalf of plaintiff-respondent, while relying on its earlier decision in Babu Lal vs. M/s. Hazari Lal Kishori Lal and Others, MANU/SC/0049/1982 : (1982) 1 SCC 525, has held that in view of Section 22 of the Specific Relief Act, a decree for partition and separate possession of the property can be granted in addition to a decree for specific performance of contract, being incidental or ancillary to the main relief of specific performance of contract. In that case, the plaintiff filed a suit against defendants for a decree of specific performance of contract in respect of the agreement of sale in respect of the entire 19 cents share of the defendants in the property in dispute. The trial Court in that case granted decree of partition along-with decree of specific performance of contract, which was, in view of Section 22(a)(a) of the Specific Relief Act, was held permissible and argument to the contrary was repealed. The Supreme Court held that Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the plaintiff may claim a decree for possession and/or partition in a suit for specific performance. Even though strictly speaking, the right to possession accrues only when a suit for specific performance is decreed. Indisputably, in the present case, such a decree for possession and/or partition is prayed for in anticipation of the grant of prayer for specific performance of contract, which is permissible in law.
It is thus clear that the. Legislature has; given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.
The only amendment' to be made in the plaint was to add a relief for possession necessitated because of the provisions of Section 22, which is only an enabling provision.
There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession The objection of the petitioner is hyper-technical. The execution court has every jurisdiction to allow' the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree-holders of the benefits of the decree when Section 55 of the Transfer of property Act authorises the transferee to get possession in pursuance of a sale deed.
Whether court can permit amendment of plaint if there is misdescription in the name of plaintiff?
Purushottam Umedbhai & Co. Vs. Manilal and Sons Decided On: 07.10.1960
Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India. Such privilege is not extended to persons who are doing business as partners outside India. In their case they still have to sue in their individual names. If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm. It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity. It is a plaint by all the partners of the firm with a defective description of themselves for the purposes of the Code of Civil Procedure. In these circumstances, a civil court could permit, under the provisions of s.153 of the Code (or possibly under O.VI, r.17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the court in determining the real question or issue between the parties.
Whether amendment of counter claim based on cause of action arising subsequent to filing of written statement is permissible?
Aakar-Prakar Laxman Path Vs. Madhuban Dairies Decided On: 23.10.2018
Order 8 Rule 6A CPC reads as under:-
Counterclaim by defendant:-
(1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired (emphasis mine), whether such counter claim is in the nature of a claim for damages or not:
Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.
(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints.
A bare reading of the aforesaid provision makes it pellucid that a counterclaim can indeed be filed by a defendant on a cause of action which may have arisen before or subsequent to the filing of a suit. Yet it should be one obtaining before delivering the defendant's defence at the time of filing of the written statement. I am of the considered view that even though a counterclaim is to be tried a suit, yet its laying has statutory limitations. A counterclaim can only be based on i.e. cause's of action which obtain and exist at the time of filing of the written statement. Subsequent to the filing of the written statement any further fresh cause of action by the defendant against the plaintiff cannot be included in the counterclaim by way of an amendment. For that the defendant has the remedy of laying a separate suit. This qua Order 8 Rule 6C CPC is evident from the language of Order 8 Rule 6C CPC. It is equally well settled that the discretion of the trial court is not to be interfered with unless it is exercised perversely is capricious or patently illegal. No such situation obtains and no such ground is made out in this petition.
Punjab-Haryana High Court
Dalip Kaur And Another vs Major Singh And Others on 17 August, 1995
(i) All amendments should be allowed which are necessary for determination of the real controversies in the suit;
(ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis was raised;
(iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment
(iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;
(v) amendment of a 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 time;
(vii) no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
(viii) the delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
(ix) error or mistake which if not fraudulent should not be made on ground for rejecting the application for amendments of pleadingS.
Supreme Court of India
L.C. Hanumanthappa (Since ... vs H.B.Shivakumar on 26 August, 2015
As early as in the year 1900, the Bombay High Court in Kisandas Rupchand v. Rachappa Vithoba, ILR 33 Bom 644 (1900), held as follows:-
“ ... 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 ... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?” [at p. 655]
. This statement of the law was expressly approved by a three Judge Bench of this Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595, at pages 603 to 604.
Twenty years later, the Privy Council in Charan Das v. Amir Khan, 47 IA 255 (1920), stated the law as follows:-
“That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are out- weighed by the special circumstances of the case.”
This statement of the law was cited with approval in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., 1957 SCR 438, at pages 450 to 451.
The facts in the aforesaid case were that the plaintiffs had, on the basis of the material facts stated in the plaint, claimed damages on the basis of the tort of conversion. It had been held by the courts below that on the pleading and on the evidence such claim must fail. At the stage of arguments in the Supreme Court, the plaintiff applied to the Supreme Court for amendment of the plaint by raising an alternative plea on the same set of facts, namely, a claim for damages for breach of contract for non- delivery of the goods. The respondents in that case resisted the said plea for amendment, stating that a suit based on this new cause of action would be barred by limitation. This Court, while allowing the said amendment, stated that no change needs to be made in the material facts pleaded before the court all of which were there in support of the amended prayer. In any case, the prayer in the plaint as it originally stood was itself general and merely claimed damages. Thus, all the allegations which were necessary for sustaining a claim of damages for breach of contract were already there in the plaint. The only thing that was lacking was the allegation that the plaintiffs were in the alternative entitled to claim damages for breach of contract. In the facts of the said case, this Court held:-
“It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice.” [at page 415]
It is clear that this case belonged to an exceptional class of cases where despite the fact that a legal right had accrued to the defendant by lapse of time, yet this consideration was outweighed by the special circumstances of the case, namely, that no new material fact needed to be added at all, and only an alternative prayer in law had necessarily to be made in view of the original plea in law being discarded.
Similar is the case with Pirgonda Hongonda Patil, reported in 1957 SCR 595. Here again it was held that the amendment did not really introduce a new fact at all, nor did the defendant have to meet a new claim set up for the first time after the expiry of the period of limitation.
In K. Raheja Constructions Ltd. & Anr. v. Alliance Ministries & Ors., 1995 Supp. (3) SCC 17, this Court was seized with a belated application to amend a plaint filed for permanent injunction. Seven years after it was filed, an amendment application was moved seeking to amend the plaint to one for specific performance of contract. In turning down such amendment on the ground that it was time-barred, this Court held:-
“It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years to elapse from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accruing to the respondent.” [at para 4]
Similarly, in Vishwambhar & Ors. v. Laxminarayan (Dead) through LRs & Anr., (2001) 6 SCC 163, in a suit originally filed for recovery of possession, an amendment was sought to be made after the limitation period had expired, for a prayer of declaration that certain sale deeds be set aside. This was repelled by this Court as follows:-
“On a fair reading of the plaint, it is clear that the main fulcrum on which the case of the plaintiffs was balanced was that the alienations made by their mother-guardian Laxmibai were void and therefore, liable to be ignored since they were not supported by legal necessity and without permission of the competent court. On that basis, the claim was made that the alienations did not affect the interest of the plaintiffs in the suit property. The prayers in the plaint were inter alia to set aside the sale deeds dated 14-11-1967 and 24-10-1974, recover possession of the properties sold from the respective purchasers, partition of the properties carving out separate possession of the share from the suit properties of the plaintiffs and deliver the same to them. As noted earlier, the trial court as well as the first appellate court accepted the case of the plaintiffs that the alienations in dispute were not supported by legal necessity. They also held that no prior permission of the court was taken for the said alienations. The question is, in such circumstances, are the alienations void or voidable? In Section 8(2) of the Hindu Minority and Guardianship Act, 1956, it is laid down, inter alia, that the natural guardian shall not, without previous permission of the court, transfer by sale any part of the immoveable property of the minor. In sub-section (3) of the said section, it is specifically provided that any disposal of immoveable property by a natural guardian, in contravention of sub-section (2) is voidable at the instance of the minor or any person claiming under him. There is, therefore, little scope for doubt that the alienations made by Laxmibai which are under challenge in the suit were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid the transfers and regain the properties from the purchasers. As noted earlier in the plaint as it stood before the amendment the prayer for setting aside the sale deeds was not there, such a prayer appears to have been introduced by amendment during hearing of the suit and the trial court considered the amended prayer and decided the suit on that basis. If in law the plaintiffs were required to have the sale deeds set aside before making any claim in respect of the properties sold, then a suit without such a prayer was of no avail to the plaintiffs. In all probability, realising this difficulty the plaintiffs filed the application for amendment of the plaint seeking to introduce the prayer for setting aside the sale deeds. Unfortunately, the realisation came too late. Concededly, Plaintiff 2 Digamber attained majority on 5-8- 1975 and Vishwambhar, Plaintiff 1 attained majority on 20-7-1978. Though the suit was filed on 30-11-1980 the prayer seeking setting aside of the sale deeds was made in December 1985. Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward who has attained majority and the period is to be computed from the date when the ward attains majority. Since the limitation started running from the dates when the plaintiffs attained majority the prescribed period had elapsed by the date of presentation of the plaint so far as Digamber is concerned. Therefore, the trial court rightly dismissed the suit filed by Digamber. The judgment of the trial court dismissing the suit was not challenged by him. Even assuming that as the suit filed by one of the plaintiffs was within time the entire suit could not be dismissed on the ground of limitation, in the absence of challenge against the dismissal of the suit filed by Digamber the first appellate court could not have interfered with that part of the decision of the trial court. Regarding the suit filed by Vishwambhar, it was filed within the prescribed period of limitation but without the prayer for setting aside the sale deeds. Since the claim for recovery of possession of the properties alienated could not have been made without setting aside the sale deeds the suit as initially filed was not maintainable. By the date the defect was rectified (December 1985) by introducing such a prayer by amendment of the plaint the prescribed period of limitation for seeking such a relief had elapsed. In the circumstances, the amendment of the plaint could not come to the rescue of the plaintiff.
From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that.” [at paras 9 and 10]
In Siddalingamma and Anr v. Mamtha Shenoy, (2001) 8 SCC 561, this Court held while allowing an amendment of the plaint in a case of bona fide requirement of the landlord that the doctrine of relation back would apply to all amendments made under Order VI Rule 17 of the Code of Civil Procedure, which generally governs amendment of pleadings, unless the court gives reasons to exclude the applicability of such doctrine in a given case. No question of limitation was argued on the facts in that case which would therefore be in the category of cases which would follow the line of judgments which state that costs can usually compensate for an amendment that is made belatedly but within the period of limitation, it not being an exceptional case such as those contained in the two judgments L.J. Leach & Co. Ltd. and Pirgonda Hongonda Patil cited above.
In Sampath Kumar v. Ayyakannu and Anr., (2002) 7 SCC 559, this Court was faced with an 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. This Court held:-
“In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. 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 a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] .) In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. 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. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.” [at paras 7, 9, 10 and 11]
It is clear that on the facts in the above case the amendment was allowed subject to the plea of limitation which could be taken up by the defendant when the trial in the case proceeds.
27. In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596, this Court considered a suit which was originally filed for declaration of ownership of land and for permanent injunction. The suit had been filed on 11th February, 1991. An amendment application was moved under Order VI Rule 17 of the Code of Civil Procedure on 16th December, 2002 for inclusion of the relief of specific performance of contract. This Court in no uncertain terms refused the midstream change made in the suit, and held:- “In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of limitation. In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
Here admittedly, no date has been fixed for performance in the agreement for sale entered between the parties in 1976. But definitely by its notice dated 3-2-1991, the first respondent has clearly made its intentions clear about refusing the performance of the agreement and cancelled the agreement.
Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. This Court held in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp. 168-69, para 9). Those principles are applicable to the present case.” [at paras 24, 25 and 32]
In Prithi Pal Singh and Anr. v. Amrik Singh and Ors., (2013) 9 SCC 576, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering some of its earlier judgments held:-
“In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.” [at para 11]
Supreme Court of India
Varun Pahwa vs Renu Chaudhary on 1 March, 2019
In State of Maharashtra vs. Hindustan Construction Company Limited1, this Court held as under:-
“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that 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.
18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn.2 - an appeal that came up before the Court of Appeal, Brett M.R. stated:
“... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment 1 (2010) 4 SCC 518 2 (1883) 32 WR 262 (CA) should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….”
19. In Charan Das v. Amir Khan the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case.
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22. In Jai Jai Ram Manohar Lal this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) “5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.” This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7):
3 (1919-20) 47 IA 255 4 (1969) 1 SCC 869 “7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.”
10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another5, this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-
“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:
(i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance;
(ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
(iii) where the non-compliance or violation is proved to be deliberate or mischievous;
(iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.” 5
Whether one defendant can object to amendment application filed by co-defendant?
Armando Pereira & Anr. Vs. Shri Jude D’Souza & Ors. (2009)
The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:
Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.
The above discussion clearly goes to show that the co-defendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.
Supreme Court of India
M.Revanna vs Anjanamma (Dead) By Lrs. on 14 February, 2019
Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.
Supreme Court of India
Bijendra Nath Srivastava vs Mayank Srivastava on 10 August, 1994
That apart the principle of estoppel which precludes a party from assailing an order allowing a petition subject to payment of costs where the other party has accepted the costs in pursuance of the said order applies only in those cases where the order is in the nature of a conditional order and payment of costs is a condition precedent to the petition being allowed. In such a case it is open to the party not to accept the benefit of cost and thus avoid the consequence of being deprived of the right to challenge the order on merits. The said principle would not apply to a case where the direction for payment of costs is not a condition on which the petition is allowed and costs have been awarded independently in exercise of the discretionary power of the court to award costs because in such a case the party who has been awarded costs has no opportunity to waive his right to question the validity or correctness of the order.