AMENDMENT OF PLEADING.

NAME: ANOOP KUMAR ROLL NO. 11 th th 8 Semester, 4 Year.

Dr. ram manohar lohiya national law university
Lucknow.

Acknowledgement. I am highly obliged to our respected teacher Ms. Shakuntla Devi, without whose support this project could not have seen the light. Secondly I would also like to mention the name of our Library Staff members who had provided me with the enough material on my project topic, because of which I was able to prepare this project on time. Thirdly I am highly obliged to my parents whose blessings always turned out to be a solution of every problem in my project. I am also thankful to my dear friends who provided me their help and support at every stage. Last but not the least I would like to thank the Almighty God, without whose blessings my project would have never been complete. ANOOP KUMAR

CONTENT. INTRODUCTION. ESSENTAILS OF PLEADING. AMENDMENT AND ITS OBJECT LEAVE TO AMEND WHEN GRANTED. LEAVE TO AMEND WHEN REFUSED. EFFECT OF AMENDMENT. CONLUSION. BIBLIOGRAPHY.

INTRODUCTION.

It is an essential requirement of pleading that material facts and necessary particulars must be stated in the pleadings and the decisions can not be based on grounds outside the pleadings. But many a time the party may find it necessary to emend his pleadings before or during the trial of the case. Rule 17 of Order VII deals with the provision of amendment of the plaint1.

ESSENTAILS OF PLEADING.
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17. Amendment of pleadings.The Court may at any stage of the proceedings allow either party o 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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. ORDER 6 of the Civil Procedure Code, 1908 deals with pleadings in general. A plaint is the first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. It can be seen that Rule 12 defines pleading; Rule 23 lays down the fundamental principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.
3. Forms of pleading The forms in Appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings. 4. Particulars to be given where necessary In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

Rules 14 and 15 require the signing and verification of pleadings. Rule 16 empowers a court to strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of pleadings.
14. Pleading to be signed

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1. Pleading

"Pleading", shall mean plaint or written statement.
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2. Pleading to state material facts and not evidence

(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.

15. Verification of pleadings (1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.

17. Amendment of pleadings.The Court may at any stage of the proceedings allow either party o 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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

AMENDMENT AND ITS OBJECT: As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have to be struck out. The paramount object behind Amendment is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side4. Ultimately, the courts exist for doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to parties5.
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Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559. Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869.

Provisions for the amendment of pleading are contained to promote end of justice and not for defeating them6. Further in the leading case of Cropper v. Smith, the object underlying the amendment of pleadings has been laid down by Bowen, L.J. in the following words: “I think it is well-established principle that the object of the courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights”7. LEAVE TO AMEND WHEN GRANTED. The Rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between parties to be raised in pleadings, where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order8. In Kisandas v. Vithoba9, Batchelor J. observed as follows: “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”. Therefore the main points to be considered before a party is allowed to amend his pleading are: firstly, whether the amendment is necessary for determination of the real question in controversy; and secondly, can the amendment be allowed without injustice to the other side. Thus, it has been held that where amendment is sought to avoid multiplicity of suits10, or where the parties in the plaint are wrongly described 11, or where some properties are omitted from the plaint by inadvertence12, the amendment should be allowed.
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Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91: AIR 1978 SC 484. (1884) 29 Ch D 700. 8 Tildersley v. Harper, (1878) 10 Ch D 393. 9 [1909] I.L.R. 33 Bom. 644; 11 Bom.L.R. 1042. 10 Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357, 11 Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869. 12 Someshwari v. Mahshwari, AIR 1936 PC 332.

LEAVE TO AMEND WHEN REFUSED. It is true that courts have very wide discretion in the matter of amendment of pleadings. But the wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power and no legal power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai v. Vijay Kumar13, the Supreme 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”. Generally, in the following cases, leave to amend will be refused by the court: 1. Leave to amend will be refused when amendment is not necessary for the purpose of determining the real question in controversy between the parties. The real controversy test is the basic test. In Edevian v. Cohen14, the application for amendment was rejected since it was not necessary to decide the real question in controversy. 2. Leave to emend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. In Steward v. North Metropolitan Tramways Co.15, 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.
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1974 AIR 1126, 1974 SCR (3) 882. (1889) 43 Ch. D 187. 15 (1886) 16 QB 178.

3. Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour 16. Every amendment should be allowed if it does not cause injustice or prejudice to the other party. In Weldon v. Neal17 the original action was simply for slander, and the plaintiff was non-suited. Later she sought to amend her claim by setting up, in addition to the claim for slander, fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of such amendment were barred by limitation though not barred at the date of the writ. Here, then, the amendment sought to setup fresh claims, claims which had never been heard of until they had become barred; yet even in so strong a case as this Lord Esher M.R. refusing leave to amend intimated that the decision might have been the other way if there had existed special circumstances to justify it. 4. Leave to amend will be refused where the application for amendment is not made in good faith18. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai v. Ratanlal19, it was observed that there was no ground to allow the application for amendment of the plaint which apart from being highly belated, was clearly an afterthought fur the obvious purpose of averting the inevitable consequence of rejection of the plaint on the ground that it does not disclose any cause of action or raise any triable issue. EFFECT OF AMENDMENT. Where an amendment is allowed, such amendment relates back to the date of the suit as originally filed. In Brij Kishore v. Smt. Mushtari Khatoon it was held that the Court must take the pleadings as they stand after amendment and leave out of consideration the unamended ones. The court must look to the pleadings as they stand after the amendment and leave out of consideration unamended ones20.

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Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357. 17 (1880) 19 Q.B.D. 89.4; 66 L.J.Q.B. 621; 35 W.R. 820. 18 Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559, Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869. 19 1990 SCR (1) 172, 1990 SCC (2) 42. 20 Brij Kishore v. Smt. Mushtari Khatoon, AIR 1976 All 399.

CONCLUSION. It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil suits. But, the court can not grant the leave of amendment at its whims and fancies. There has to certain criterion for granting or refusing the leave, which has been laid down in case laws.

BIBLIOGRAPHY.

Books Referred:
• Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law Agency, Faridabad. • C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow. • M.P Jain, the Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur. • Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur. URLs. • http://indiankanoon.org/doc/468319/

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