AMENDMENT OF PLEADINGS

(Order 6, rule 17 CPC)

1. Stage of seeking amendments u/o.6, rule 17 CPC: An amendment

application u/o. 6, rule 17 CPC can be moved at any stage of the
proceedings, even before the Supreme Court, delay notwithstanding.
2. The answer to this question is pending adjudication before the Supreme
Court in Anita v. Anil. In its order dated 13-9-2021, the Supreme Court
noted two divergent views on this issue. One view is that of the Bombay
High Court, and the other of the Calcutta High Court. The Bombay High
Court is of the view that the filing of the affidavit in examination of chief
would amount to commencement of trial whereas the Calcutta High Court
has taken the view that the expression “commencement of trial” in the
proviso to Order 6 Rule 17 CPC “would imply the date when the court first
applies its mind after the affidavit of evidence is filed and when the first
witness proves his affidavit of evidence or such witness seeks to prove a
document for it to be tendered in evidence or the cross-examination of such
witness begins, whichever is earlier”. Both the Bombay and the Calcutta
High Courts extensively rely on several Supreme Court judgments to
support their respective views.
3. 1. In Baldev Singh v. Manohar Singh (Baldev Singh), the Supreme Court was

considering a challenge against an order of the trial court (which was affirmed by the

High Court) rejecting an application for amendment of a written statement. The trial

court and the High Court rejected the application mainly on three grounds. The first

ground was that the since the appellants had made certain admissions in the written

statement, the amendment could not be allowed “permitting the appellants to

withdraw their admission”. The second ground was that “the question of limitation”

could not be raised by way of an amendment and the third ground was that

“inconsistent pleas in the written statement” could not be allowed to be raised by an

amendment. The Supreme Court confined its judgment only to ground number two

and three, namely, (a) on the question of limitation; and (b) on inconsistent pleas.

1
However, while concluding its judgment, the Court referred to the proviso to Order 6

Rule 17 and noted that in the facts of the case before it, the trial had “not yet

commenced” as the parties had not yet filed their documentary evidence. On coming

to the conclusion that the trial had not yet commenced, the Court observed that

“commencement of trial” in Order 6 Rule 17 CPC “must be understood in the limited

sense as meaning the final hearing of the suit, examination of witnesses, filing of

documents and addressing of arguments”. After making these observations, the

Court concluded that in the facts before it, there was no reason to “reject the

application for amendment of the written statement” in view of the proviso to Order

6 Rule 17. According to the author, the aforesaid observations of the Court on

“commencement of trial” would not constitute the ratio of the judgment but would

be obiter dicta because this “expression of opinion” by the Court was on a point

which was “not necessary for the decision” of the case. As is stated above, the Court

had confined its judgment only to the question of limitation and inconsistent pleas

and therefore, its observations on “commencement of trial” were not at all necessary

to decide the case before it. However, even though the observations in Baldev Singh

are obiter, the principle culled out vide these observations could be construed as

declaration of law under Article 141 of the Constitution and therefore, cannot be

ignored. In Director of Settlements M.R. Apparao (Director of Settlements), the

Supreme Court observed:  … An “obiter dictum” as distinguished from a ratio

decidendi is an observation by Court on a legal question suggested in a case before

it but not arising in such manner as to require a decision. Such an obiter may not

have a binding precedent as the observation was unnecessary for the decision

pronounced, but even though an obiter may not have a binding effect as a

precedent, but it cannot be denied that it is of considerable weight. The law which

will be binding under Article 141 would, therefore, extend to all observations of

points raised and decided by the Court in a given case…. (emphasis supplied) 2. In

Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N.,[17](Ajendraprasadji) the

Supreme Court was dealing with yet another case challenging leave to amend the

written statement on the ground that “the appellants had not been able to show in

context of the proviso” to Order 6 Rule 17 that before the commencement of trial,

“the appellants could not have raised the matter in spite of due diligence”.[18] 2.1

After examining the facts of the case and the legislative history of Order 6 Rule

17[19], the Supreme Court concluded that the appellant was “precluded by the
2
proviso” to Order 6 Rule 17 from amending the written statement.[20] However, the

Supreme Court went on to rely on a previous decision delivered by it in Kailash

Nankhu[21] (Kailash). According to the Supreme Court, it had been “held” in

Kailash[22] that “the trial is deemed to commence when the issues are settled and

the case is set down for recording evidence”.[23] With due respect to the Court, this

is an erroneous reading of Kailash[24]. The Supreme Court in Kailash[25] was dealing

with an application for condonation of delay in filing a written statement in an

election petition filed in the Allahabad High Court.[26] The three questions[27] for

determination before the Supreme Court were: (1) Whether Order 8 Rule 1 CPC[28]

is applicable to the trial of an election petition? (2) Whether the rules framed by the

Allahabad High Court governing election petitions would override the provisions of

CPC? and (3) Whether the time-limit of 90 days in the proviso to Order 8 Rule 1 was

mandatory or directory? The Supreme Court thereafter went on to examine the

question that arose for consideration, namely, when does a trial of an election

petition commence and what is the meaning of “trial” in “the context of an election

petition”.[29] During the course of answering this question, the Court observed that

“in a civil suit, the trial begins when issues are framed and the case is set down for

recording of evidence”.[30] This observation is by no means the ratio of this

judgment nor is it a principle of law laid down or declared by the Supreme Court. It is

merely a passing observation and is not an authority on the point. 3. The next

judgment on the issue is Vidyabai v. Padmalatha (Vidyabai).[31] The question

involved in Vidyabai[32]was “whether pleadings can be directed to be amended after

the hearing of a case begins.”[33] On the question of whether the trial had

commenced or not in the case before it, the Court held that the trial had

commenced. The relevant portion of the judgment reads thus: … The question

therefore, which arises for consideration is as to whether the trial had commenced

or not. In our opinion, it did. 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, in our opinion, would amount to

“commencement of proceeding”.[34] 3.1 It is strange as to why the Court has used

the words “commencement of proceeding” and not “commencement of trial”

particularly when it had itself posed a question on whether the trial had commenced

or not. The word “proceeding” would obviously be different from the word “trial”. The
3
word “proceeding” is much wider in scope that the word “trial”. Nevertheless, the

Court in Vidyabai[35]has referred to Ajendraprasadji[36] and Kailash[37]and after

referring to both these judgments, the Court stated that the “ratio” in Kailash[38] was

reiterated in Ajendraprasadji[39] which stated that “the trial is deemed to commence

when the issues are settled and the case is set down for recording of evidence”.[40]

As has already been stated earlier, this is not the ratio laid down in Kailash[41] and

neither is it obiter dictum. The Supreme Court also referred to several judgments

delivered by it including Baldev Singh[42] (referred to above). On referring to Baldev

Singh[43], the Court observed that it is “not an authority for the proposition that the

trial would not be deemed to have commenced on the date of first hearing” as in

Baldev Singh[44], “the documents were yet to be filed and, therefore, it was held that

the trial did not commence”. 3.2 Another judgment that the Court in Vidyabai[45]

referred to was Union of India Major General Madan Lal Yadav (Madan Lal)[46] which

was dealing with the interpretation of the expression “trial commences” in Section

123(2)[47] of the Army Act, 1950.[48] After referring to the dictionary meaning of the

terms “trial” and “commence”, the Supreme Court went onto observe as under: It

would, therefore, be clear that trial means act of proving or judicial examination or

determination of the issues including its own jurisdiction or authority in accordance

with law or adjudging guilt or innocence of the accused including all steps necessary

thereto. The trial commences with performance of the first act or steps necessary or

essential to proceed with trial.[49] It is submitted that though the Supreme Court in

Madan Lal[50] was interpreting the expression “trial commences” in Section 123(2) of

the Army Act, the principle of law laid down by the Court was that a trial would mean

an “act of proving or judicial examination or determination of the issues” and this

exercise would commence with the “first act or step necessary” to proceed with the

trial. 4. Vidyabai[51]has subsequently been referred to in a recent judgment of the

Supreme Court in Mohinder Kumar Mehra v. Roop Rani Mehra (Mohinder Kumar)

[52] which dealt with a challenge to an order rejecting an application for amendment

of plaint under Order 6 Rule 17.[53] After examining the various judgments on the

issue, the Court observed that after “issues are framed and case is fixed for hearing

and the party having right to begin is to produce his evidence, the trial of suit

commences”.[54] C. The view of the Bombay High Court  In an important judgment

delivered on a reference made to a Division Bench of the Bombay High Court in

Mahadeo v. Balaji[55](Mahadeo), the High Court had to examine two questions: (i)
4
whether a trial of a suit commences on the date of framing issues or from the date

of filing of affidavit in lieu of examination-in-chief; and (ii) whether the proviso to

Order 6 Rule 17 is attracted after framing of issues or after filing of affidavits lieu of

examination-in-chief.[56] The High Court referred to Vidyabai[57],

Ajendraprasadji[58], Kailash[59] and Madan Lal[60]as well as the expressions

“proved”, “disproved” and “not proved” in Section 3 of the Evidence Act, 1872[61] and

stated as under: “10. … Thus, it can be seen that when the issues are framed there is

no engagement of judicial mind in the exercise of weighing the material before it in

order to assess its worth. What is actually done is to narrow down area of dispute

and pinpoint the points required to be determined by the Court. In the words of the

learned Single Judge the issues are framed in order to navigate the direction in which

the trial shall proceed so as to give a clear idea to the parties regarding the burden

of proof each one will have to bear and consequently about the right to begin with

trial.”[62] (emphasis supplied)  On the stage when the trial commences, the High

Court stated, “11. … A first act or step taken to prove, on [sic] disprove the facts in a

suit, therefore, can be seen as the commencement of trial in a civil suit.

Unmistakably, therefore, filing of an affidavit in lieu of examination-in-chief by the

plaintiff can be regarded as first act or step taken by the plaintiff to prove his case,

and consequently it can be regarded as commencement of a trial.”[63]                                                           

(emphasis supplied) After laying down the law in the aforesaid terms, the High Court

answered the reference by holding that “the trial in a civil suit commences from the

date of filing of affidavits in lieu of the examination-in-chief of the witnesses” and the

proviso to Order 6  Rule 17 CPC will come into play only after filing of the affidavits in

lieu of examination-in-chief of witnesses.[64] 2. In another judgment delivered by the

Single Bench of the Bombay High Court in Maratha Market People’s Cooperative

Bank Ltd. v. Jeejaee Estate (Jeejaee Estate),[65] the High Court again dealt with the

very same question. Though the High Court referred to Vidyabai[66] and Mohinder

Kumar[67], it appears that the Division Bench judgment in Mahadeo[68] was not

brought to the attention of the Single Bench. The Single Bench eventually held that

“the trial commences (as contemplated under the proviso appended to Order 6 Rule

17CPC) when the first affidavit of evidence is filed”.[69] This view of the Single Bench,

to an extent varies with the view of the Division Bench in Mahadeo[70], which had

held that the trial commences from the date of filing of affidavits in lieu of the

examination-in-chief of the witnesses.[71] While the Division Bench has stated that
5
affidavits (plural) of evidence would be the stage of commencement of trial, the

Single Bench has held that the trial commences from the date of filing the first

affidavit of evidence. Therefore, it is respectfully submitted that the decision of the

Court in Jeejaee Estate[72] is per incuriam as the Division Bench judgment of

Mahadeo[73] was not considered by it. Mahadeo[74] had extensively referred to,

relied on, and interpreted various decisions of the Supreme Court including

Vidyabai[75] and thereafter came to a conclusion. If the Single Bench had noticed

this judgment, it would have been bound to follow it. 3. Incidentally, Mahadeo[76]

had been followed by another Single Bench of the Bombay High Court in Anil v.

Anita,[77]whose order has been challenged before the Supreme Court by the

respondent in Anita v. Anil[78] referred to in Part A of this article. D. The view of the

Calcutta High Court 1. In Sree Sree Iswar Radha Behari Jew v. Malati P. Soni[79]

reference was made to the Division Bench of the High Court by a Single Bench on the

following issue: … Whether, in view of Vidyabai Padmalatha[80], “commencement of

trial”, as envisaged in the proviso to Order 6 Rule 17 of the Code of Civil Procedure,

would mean the date of first hearing, that is, the date of framing of issues, or the

final hearing of the suit, examination of witnesses, filing of documents and

addressing of arguments? 2. The High Court conducted a threadbare analysis of

Vidyabai82 and the judgments referred to in Vidyabai[81] including Madan Lal[82],

Kailash[83], Baldev Singh[84], Mohinder Kumar[85], Ajendraprasadji[86]. Reference

was also made to the Bombay High Court judgment of Mahadeo[87]. As far as the

observations in Kailash[88] on commencement of trial[89], the High Court rightly

observed that this observation in Kailash[90]is not the ratio decidendi of the

judgment; but the High Court further went on to state that the observations in

Kailash[91]are obiter and are of “great persuasive value”.[92] However, in the

author’s view, as has been mentioned earlier in Part B, the observation in

Kailash[93]on commencement of trial is a stray observation and cannot even been

considered as obiter dicta. 3. The High Court then went onto opine that there is a

“distinction between when the trial stage commences in the life of a civil suit and

when the trial actually commences” within the meaning of the proviso to Order 6

Rule 17.[94] According to the High Court, … Ordinarily, the trial stage commences in

a suit immediately upon the issues being determined. However, it is not immediately

thereupon that the trial in a suit commences in right earnest and the

commencement of the trial is only when any witness takes to the box, whether to
6
prove his affidavit of evidence or to prove any document to be tendered into

evidence or to face any cross-examination for, it is at this stage that the court applies

its judicial mind to examine the evidence or to consider whether a particular

document is to be received in evidence or to consider the permissibility of the

questions put in cross-examination. It is also open to the court to put its own

questions to the witness; and, when the court does so, it surely applies its mind for

the purpose of assessing the merits of the lis.[95] 4. The High Court further opined

that a reading of Madan Lal[96]and Baldev Singh[97] that were relied on in

Vidyabai[98] would imply that commencement of trial would be “something more

than the mere receipt of any affidavit of evidence since the filing of such affidavit

does not result in the court immediately examining it or applying its judicial mind to

the same”.[99] The commencement of trial “is when the court applies its mind to

assess the lis after the first affidavit of evidence is filed”.[100] 5. The High Court

therefore, finally answered the reference by holding that “the expression

‘commencement of trial’ in the proviso to Order 6 Rule 17 of the Code of Civil

Procedure would imply the date when the court first applies its mind after the

affidavit of evidence is filed and when the first witness proves his affidavit of

evidence or such witness seeks to prove a document for it to be tendered in

evidence or the cross-examination of such witness begins, whichever is earlier”.[101]

E. Concluding comments In the author’s opinion, the view of the Calcutta High Court

is correct and that of the Bombay High Court is incorrect. In a civil proceeding, only

the battle lines are drawn with the framing of issues and the filing of evidence

affidavits. It is only when the witness steps into the witness box that the real charge

begins by the counsel. This is when the trial starts. It is important to note that the

purpose behind allowing amendments to pleadings is to avoid multiplicity of

proceedings. However, at the same time, the parties cannot misuse the provisions of

procedural law to delay a trial and the administration of justice. To remedy its

misuse, Order 6 was initially amended in 1999[102] by deleting Rules 17 and 18

altogether to order to shorten the duration of litigation and increase the speed of

the trial.[103] However, Rules 17 and 18 was restored once again in 2002[104] by

inserting a proviso prohibiting amendments to pleadings after the trial had

commenced unless the court concluded that despite due diligence, the amendment

could not take place before the trial commenced. However, in the absence of a clear

and definitive pronouncement by the Supreme Court on when a civil trial

7
commences for the purpose of Order 6 Rule 17, the meaning of the expression

“commencement of trial” would always be subject to different interpretations by the

courts depending on the facts of each case before it. Therefore, in the author’s

opinion, to remedy this situation, the legislature must up its game and make the

following amendments to Order 6 Rule 17: i) adding an Explanation after the proviso

to Order 6 Rule 17, defining the expression commencement of trial, or; ii) amending

the proviso to Order 6 Rule 17 by replacing “trial has commenced” and

“commencement of trial” with “issues are framed” and “framing of issues”. In other

words, amendment of pleadings should not be permitted after the issues are

framed. An Explanation could be added clarifying that framing of issues would also

mean and include framing of additional issues and recasting of issues under Order

14 Rule 5.

8
4. Necessary guidelines for allowing amendments in pleadings: The
Allahabad High Court has issued following guidelines for allowing
amendments in pleadings:
(1) All amendments will be generally permissible when they are necessary for
determination of the real controversy in the suit.
(2) In general, the amendments should not cause prejudice to the other side
which cannot be compensated in terms of costs.
(3) The substitution of one cause of action or nature of the claim for another
in the original plaint or change of the subject-matter of or controversy in
the suit is not permissible.
(4) Introduction by amendment of inconsistent or contradictory allegations in
negation of the admitted position on facts or mutually destructive
allegations of facts are also impermissible.
(5) Amendment of claim or relief which is barred by limitation when the
amendment is sought to be made should not be allowed to defeat a legal
right accrued except when such consideration is outweighed by the special
circumstances of the case.
(6) The principles applicable to the amendment of plaints equally apply to the
amendment of the written statement. See: Munni Lal Sahu vs. District
Judge, Jhansi,1991 (18) ALR 626 (All)

5. Truth & merits of the proposed amendments not to be considered at

the time of disposal of amendment application: Truth & merits of the
proposed amendments cannot be considered at the time of disposal of the
amendment application u/o. 6, rule 17 CPC. See: Rajesh Kumar Aggarwal
vs. K.K. Modi, (2006) 4 SCC 385

9
6. Amendment in pleading when to be allowed: Amendment in pleadings
can be allowed u/o.6, rule 17 C.P.C. if …….
(1) It is necessary to decide the real controversy between the parties.
(2) It does not alter the original cause of action or introduces new cause of
action. See:
(i) Vidyabai vs. Padmalatha, 2009 (1) Supreme 238
(ii) B.K.N. Pillai vs. P. Pillai, (2000) 1 SCC 712

7. Grounds for rejection of amendment application u/o.6, rule 17 CPC:

An analysis of different judicial pronouncements on O.6, rule 17 CPC
makes it clear that an amendment application moved u/o. 6, rule 17 CPC
can be rejected by the court when the proposed amendment:
(i) is not necessary to decide the real controversy in dispute in between
the parties
(ii) is malafide or afterthought. See: Chandra Kanta Bansal vs. Rajinder
Singh, (2008) 5 SCC 117
(iii) introduces a new cause of action
(iv) changes the nature of the suit. See: Ram Sahai vs. Ramanand,(2004)
13 SCC 40
(v) withdraws an admission of fact which prejudicially affects the other
side
(vi) adds a time-barred relief without any satisfactory explanation for the
delay

An amendment introducing a new case in plaint not to be allowed: An

amendment application moved under Order 6, rule 17 CPC
introducing a new case in plaint should not be allowed. See: The
Municipal Corporation of Greater Bombay Vs. Lala Pancham, AIR
1965 SC 1008 (Five-Judge Bench).

10
 Subsequent events to be allowed through amendment in pleadings:To
shorten the litigation, subsequent events which took place during the
pendency of the suit should be allowed to be incorporated in the
pleadings u/o. 6, rule 17 CPC. See:
(i) Rajesh Kumar Aggarwal vs. K.K. Modi, (2006) 4 SCC 385
(ii) O.P.Gupta vs. Ranbir, 2002 (47) ALR 203(SC)
(iii) Allah Bux vs. District Judge, Bijnore, 1997 (30) ALR 362(All)

9. Extent of power & discretion of court in allowing amendment of

pleadings u/o. 6, rule 17 CPC: An unfettered discretion and wide power
has been conferred on the courts u/o 6, rule 17 CPC to allow amendment
of pleadings in such manner and on such terms as it appears to the court to
be just and proper. See: Baldev Singh vs. Manohar Singh, (2006) 6 SCC
498

10. Courts to adopt liberal approach in allowing amendments of

pleadings: An amendment in pleadings u/o.6, rule 17 C.P.C. cannot be
claimed as a matter of right. But the Courts ought not to adopt hyper
technical approach while deciding the amendment applications. The
approach of the court should be liberal particularly when the prejudice to
be suffered by the other side due to the amendments in pleadings can be
compensated by costs. See:
(i) South Konkan Distilleries vs. Prabhakar Gajanan Naik, AIR 2009 SC
1177
(ii) B.K.N.Pillai vs. P. Pillai, (2000) 1 SCC 712
(iii) Haridas Aildas Thadani vs. Godrej Rustom Kermani, AIR 1982 SC
221

11. Order 6, rule 17 C.P.C. more liberally applicable to amendments in

W.S. than in plaints: An amendment of plaint and amendment of written
statement are not necessarily governed by exactly the same principle. It is
true that some general principles are common to both. The courts are to be
more liberal in allowing amendments in W.S. than in plaints. Principles

11
 and provisions of O.6, rule 17 C.P.C. though equally apply to amendments
of plaints as well as written statements but as prejudice is less likely to
arise in case of amendments of written statements in comparison to
plaints, Courts should be more liberal in permitting amendments in W.S.
See:
(i) Usha Bala Shaheb Swami vs. kiran Appaso Swami, 2007 (3)
Supreme Today 582
(ii) Baldev Singh vs. Manohar Singh, (2006) 6, SCC 498
(iii) B.K.N. Pillai vs. P. Pillai, (2000)1 SCC 712

12. Only one defendant out of many cannot amend W.S. : Where W.S. was
jointly filed by more than one defendants and only one defendant had
sought amendments in the W.S. u/o 6, rule 17 C.P.C., it has been held that
the W.S. could not have been amended at the behest of only one defendant
when the remaining defendants had not joined him. See: Narendra Singh
vs. Bhartendra Singh, 2000 A.L.J. 2339(All)

13. Consequential amendments to be limited to answer to the amended

pleading: The consequential amendments must be limited to answer to the
amended plea. See:
(i) Gurdial Singh vs. Raj Kumar Aneja, AIR 2002 SC 1003
(ii) Bikram Singh vs. Ram Baboo, AIR 1981 SC 2036

14. Amendments in original pleadings to be highlighted or underlined in

red: Amendments or changes permitted to be made or incorporated in
original pleadings should be highlighted or underlined in red. See: Gurdial
Singh vs. Raj Kumar Aneja, AIR 2002 SC 1003

15. Observance of Rule 37, G.R. Civil: (i) An application for amendment
made under O.1, rule 10, O. 6, rule 17 or O.22 of CPC shall also contain a
prayer for all consequential amendments. The presiding officer shall reject
the application if it is not in accordance with law or these rules. (ii) When
a party dies pendentelite a note to that effect shall be added against the

12
 name of the party and necessary consequential amendment in the body of
the petition or pleading shall also be made as prayed for. (iii) When the
heirs of a deceased party are substituted for him, they shall be entered and
numbered as follows. If the serial number of the deceased party was say
“3” his heirs will be numbered as 3/1, 3/2, 3/3 and so on. If the party
numbered as 3/1 dies, his heirs will be numbered as 3/1/1, 3/1/2, 3/1/3,
and so on.

16. Party or his counsel to carry out the amendments (C.L. No. 6/VII-d-
148, dated 11.01.1952) Under O.6, rule 18 CPC parties are themselves
responsible for making the necessary amendments in the pleadings within
the time allowed by the court. It is no part of the duty of the office of the
court to make the necessary amendments in the pleadings. The parties
should themselves make the amendments in terms of the court’s order or
get them made by their counsel, under their signature. After the
amendments have been made they should be checked by the official
concerned who should thereafter record a note on the pleading including
the name of the person by whom the amendments were made and the fact
that they were made under the orders of the court, giving a reference to the
application on which such orders were passed and the date of such orders.

17. Amendment in plaint relates back to the date of institution of suit:

When an amendment in the plaint is incorporated, then it relates back to
the date of institution of the suit. The court can, however, in appropriate
cases direct that it will not relate back to the date of institution of the suit.
See:
(i) Prithi Pal Singh & Others Vs. Amrik Singh, (2013) 9 SCC 576
(ii) Gurdial Singh vs. Raj Kumar Aneja, AIR 2002 SC 1003

18. Amendment in plaint changing basis of suit not to be allowed: An

amendment in plaint by adding a new relief by changing basis of suit

13
should not be allowed u/o. 6, rule 17 C.P.C. See: Vishwambhar vs.
Laxminarayana, AIR 2001 SC 2607

Delayed amendment to be allowed on cost: An amendment application

u/o.6, rule 17 CPC cannot be rejected merely on the ground of delay
when the opposite party can be compensated by costs and no serious
prejudice is caused to the other side. There is no absolute rule that in
every case where a relief is barred because of limitation, an
amendment should not be allowed. Discretion in such cases depends
on the facts and circumstances of the case. If the granting of an
amendment really subserves the ultimate cause of justice and avoids
further litigation, the same should be allowed. See:
(i) Andhra Bank vs. ABN Amro Bank,(2007) 6 SCC 167
(ii) Baldev Singh vs. Manohar Singh, (2006) 6 SCC 498
(iii) Pankaja vs. Yellappa, (2004) 6 SCC 415
(iv) Ragu Thilak D. John vs. Rayappan, (2001) 2SCC 472
(v) Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97
(vi) B.K.N. Pillai vs. P. Pillai, AIR 2000 SC 614
(vii) Harcharan vs. State of Haryana, AIR 1983 SC 43
(viii)Dukhi Lal vs. XIV ADJ, 2000 ALJ 563 (All)
(ix) Jai Jai Ram Manohar Lal vs. National Building Material Supply,
Gurgaon, AIR 1969 SC 1267
(x) Estralla Rubber vs. Dass Estate (P) Ltd., (2001) 8 SCC 97

Belated & afterthought amendment not to be allow u/o 6, rule

17 CPC: Where the amendment sought to be made in the plaint was
not only belated one but also an afterthought, it has been held by the
Hon'ble Supreme Court that belated & afterthought amendment
cannot be allow u/o 6, rule 17CPC, more so when such amendment
was not really required for determination issues in the suit. See:
(i) Vijay Hathising Sah Vs. Gitaben Parshottamdas Mukhi, AIR 2019
SC 1119.
(ii) Mehboob-Ur-Rehman Vs. Ahsanul Ghani, AIR 2019 SC 1178.
(iii) Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib
Dhuka & Others, (2013) 9 SCC 485

14
 A fact in the knowledge of party from very beginning and sought to
be incorporated in his pleading at belated stage not to be
allowed: A fact in the knowledge of party from very beginning and
sought to be incorporated in his pleading at belated stage cannot be
allowed under Order 6, rule 17 CPC. See: Biraji Vs Surya Pratap,
AIR 2020 SC 5483 (Three-Judge Bench)

Amendment of plaint and amendment in decree u/s 152 CPC after

passing of decree: Consult following rulings amendment of plaint
and amendment in decree u/s 152 CPC after passing of decree:
(i) State of Punjab Vs. Darshan Singh, (2004) 1 SCC 328
(ii) Dwarka Das Vs. State of MP, (1999) 3 SCC 500
(iii) Jayalakshmi Coelho Vs. Oswal Joseph Coelho, (2001) 4 SCC 181
(iv) Bijay Kumar Saraogi Vs. State of Jharkhan, 2005 (3) SCJ 796
(v) Hari Prasad Bhuyan Vs. Durga Prasad Bhuyan, 2008 (71) ALR
160(SC)
(vi) Ganesh Vs. Sri Ram Lalaji Maharaj Birajman Mandir, AIR 1973
Allahabad 116 (Full Bench)
(vii) Jagat Narain Tiwari Vs. State of UP, 1999 ALJ 2437 (All)
(viii)Peethani Suryanarayana Vs. Repaka Venkata Ramana, 2009 (107)
RD 277 (SC)

20. Delayed amendment application when judgment already reserved:

After the judgment was reserved by court in a suit for specific
performance of contract, grant of application for amendment of plaint u/o.
6, rule 17 CPC has been held proper. See: Chheda Singh vs. District
Judge, Fatehpur, 1997(29) ARC 145(All)

New relief not changing basic structure of suit permissible to be

added: The question whether it is permissible under Order 6, rule 17
CPC to convert through an amendment a suit filed for permanent
prohibitory injunction into a suit for declaration of title and recovery
of possession, it has been held by the Supreme Court that it was
permissible as what was sought to be changed by way of
amendment was the nature of relief
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 prayed for by the plaintiff and not the basic structure of the suit. See:
Sampath Kumar Vs. Ayyakannu, AIR 2002 SC 3369.

Time-barred relief not to be allowed to be added by amendment: A

time-barred relief cannot be allowed to be added in plaint by
amendment application moved u/o. 6 rule 17 C.P.C. when the
amendment sought to be made is likely to take away a right accrued
to the opposite party due to the bar of limitation, such amendment
cannot be permitted. See:
(i) South Konkan Distilleries vs. Prabhakar Gajanan Naik, AIR 2009 SC
1177
(ii) Chandra Kanta Bansal vs. Rajinder Singh Anand,(2008) 5 SCC 117
(iii) Shiv Gopal Shah vs. Sita Ram Saraugi, AIR 2007 SC 1478
(iv) Raj Kumar vs. Dipender Kaur Sethi,(2005) 9 SCC 304
(v) T.N. Alloy Foundry Company Ltd. vs. T.N. Electricity Board,
(2004) 3 SCC 392
(vi) Dondapati Narayanan Reddy vs. Duggireddy Venkatanarayanan
Reddy, (2001) 8 SCC 115
(vii) T.L.Muddukrishna vs. Lalitha Ramchandra Rao, AIR 1997 SC 772
(viii)Radhika Devi vs. Bajarangi Singh, 1997(1) ARC 295(SC)
(ix) Munni Lal vs. The Oriental Fire & General Insurance Company Ltd.,
AIR 1996 SC 642
(x) K.Raheja Constructions Ltd. vs. Alliance Ministries, AIR 1995 SC
1768

22. Amendment to add new party against whom claim has become time-
barred: An amendment u/o.6, rule 17 C.P.C. to add a new party against
whom limitation had already run out and the claim had become timebarred
cannot be allowed. See: Kisan Co-operative Sugar Factory Ltd., vs. M/s.
Rajendra Paper Mills, AIR 1984 All 143

Sec. 151 C.P.C. & amendment of pleading thereunder: Inherent power

of court cannot be exercised u/s. 151 C.P.C. for amendment of
pleadings specially when the amendments seek to introduce totally
new cause of action and changes the nature of suit. See: P.A.
Ahammed Ibrahim vs. Food Corporation of India, AIR 1999 SC

16
3033.

17
 Amendment changing nature and character of suit cannot be allowed:
Where the suit for partition was posted for final arguments and then
amendments under Order 6, Rule 17 CPC were sought to the effect
that prior partition had taken place between the parties, the Supreme
Court held that the said amendment was not only raised at the belated
stage but the same would also change the nature and character of the
suit and could not be allowed. See: M. Revanna Vs. Anjanamma,
AIR 2019 SC 940.

Admission made in pleadings cannot be permitted to be withdrawn by

amendment but can be permitted to be explained and clarified:
An admission made in pleadings cannot be permitted to be
withdrawn by way of amendments under Order 6, rule 17 CPC but
application may be made for explaining/clarifying the admissions.
See: Ram Niranjan Kajaria Vs Sheo Prakash Kajaria, (2015) 10 SCC
203 (Three-Judge Bench).

Withdrawal of admission by amendment: An admission made by a

party may be withdrawn or explained away u/o.6, rule 17 C.P.C if
the same is necessary for effective adjudication of the dispute
between the party. See:
(i) Baldev Singh vs. Manohar Singh, (2006) 6 SCC 498
(ii) Estralla Rubber vs. Dass Estate (p) Ltd., (2001) 8SCC 97
(iii) Panchdeo Narain Srivastava vs. Km. Jyoti Sahay, AIR 1983 SC 462

25. Admission of fact in pleadings when cannot be withdrawn by

amendment: If the withdrawal of admission of fact made by the party
(defendant) in his pleading seeks to withdraw some right (u/s 58 of the
Evidence Act) that has accrued in favour of the opposite party and causes
him irretrievable prejudice, then the same cannot be permitted u/o. 6, rule
17 CPC. See:
(i) Steel Authority Of India Ltd. Vs. Union Of India, AIR, 2006 SC
3229
18
(ii) Chhanne vs. Shobhnath, 2006 (5) ALJ (NOC) 21 (All)
(iii) Heeralal vs. Kalyan Mal, (1998) 1SCC 278

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26. Admission contained in rejected amendment application: Where the
amendment proposed in pleadings contained an admission of the party
seeking amendment and the amendment application was rejected on the
opposition of the opposite party and the amendment did not come on
record as part of the pleadings, it has been held that the averments in the
amendment applications cannot be allowed to be relied on by the opposite
party as admission. See: Smt. Rajeshwari Devi vs. Laxmi Devi, 1998(16)
LCD 799(All)

Amendment of plaint after return u/o. 7, rule 10 CPC: If the Plaintiff

makes alterations in plaint after return of the same u/o. 7, rule 10-A
C.P.C., the said plaint can be treated as fresh plaint. Such plaint
cannot be dismissed on the ground that it contains averments not
made in the original plaint. It is not always necessary to seek
amendment of plaint u/o. 6, rule 17 C.P.C. in such matters. See:
Hanamanthappa vs. Chandrashekharappa, AIR 1997 SC 1307

Failure to amend the pleading after order (O. 6, rule 18 CPC w.e.f.
1.7.2002): If a party who has obtained an order for leave to amend
does not amend accordingly within the time limited for the purpose
by the order, or if no time is thereby limited then within fourteen
days from the date of the order, he shall not be permitted to amend
after the expiration of such limited time as aforesaid or of such
fourteen days, as the case may be, unless the time is extended by the
Court.

Amendment of Plaint During Execution Proceedings: Where the

boundaries of the suit property were inadvertently wrongly stated in
plaint but the suit was decreed and execution of decree was pending,
it has been held that amendment in plaint in relation to the
boundaries of the suit property could have been allowed u/s. 152
C.P.C. See: Jagat Narain Tiwari vs. State of U.P., 1999 ALJ 2437
20
 (All) and Ganesh vs. Sri Ram Lalaji Maharaj Birajman Mandir, AIR
1973 All 116 (FB)

Amendment in plaint after passing of decree: Where the number of

land that was subject matter of suit had changed after the final decree
was passed, amendment in plaint to substitute the new number after
the passing of the decree has been held proper by the Supreme Court.
See: Peethani Suryanarayana vs. Repaka Venkata Ramana,
2009(107) RD 277(SC)

29. Amendment of pleading in appeal to correctly describe the suit

property: Where after preliminary decree in partition suit, an appeal was
preferred and the appellant sought to correctly describe the suit property
which could not be fully and correctly described in the plaint due to
ignorance, it has been held that the amendment could have been allowed
u/o.6, rule 17 C.P.C. and the suit should have been remanded to trial court
for fresh disposal. See: C.M. Vereekutty vs. C.M. Mathukutty, AIR 1981
SC 1533

30. Amendment of pleading at appellate stage: No amendment of pleadings

u/o.6, rule 17 C.P.C. should be allowed in appeal which raises fresh
factual questions. See:
(i) Ramashankar Dixit vs. The VIIth Additional District Judge, AIR
1995 All 293
(ii) Rajesh Kumar Agarwal vs. Virendra Kumar Agarwal, AIR 1994 All
135
31. Distinction between material facts, material particulars & vagueness of
pleadings: Distinction between material facts and Material particulars is
that material facts are primary facts disclosing some cause of action and
such facts have to be specifically pleaded and failure to do so will result in
rejection of the plaint (election petition). But defect in material particulars

21
 can be cured at a later stage by amendment and the petition cannot be
dismissed in limine on the ground of such defect. Pleadings cannot be
dismissed merely on the ground of vagueness in pleadings. See: V.S.
Achuthanandan vs. P.J. Francis, (1999)3 SCC 737

32. Alternative pleas in defence by amendment when can be taken: A

defendant has right to take alternative pleas in defense by way of
amendment subject to following qualifications:
(i) The Proposed amendment should not result into injustice to other side
(ii) Any admission made in favour of plaintiff should not be withdrawn
(iii) Inconsistent and contradictory allegations which negate admitted facts
should not be raised. See: B.K.N. Pillai vs. P. Pillai, (2000)1 SCC 712

33. Second amendment application not to be allowed after the rejection of

first one: Once an application for amendment of pleading u/o.6 , rule 17
C.P.C. is disallowed, deviation from original pleadings cannot be
permitted. See: Ayyappally Mohd. Haji vs. M.M. Abdulsalam, (2001) 2
SCC 428

34. Mutually destructive pleadings not to be allowed by amendment:

Mutually destructive pleadings should not be allowed to be incorporated
(in W.S.) by amendment u/o.6, rule 17 C.P.C. See: Shriomoni Gurdwara
Committee vs. Jaswant Singh, (1996) 11 SCC 690

35. Additional pleas & elaboration of the defence plea to be allowed u/o.
6, rule 17 C.P.C. : Court has power u/o. 6, rule 17 CPC to permit
amendment in pleadings seeking clarificatory amendments and to
elaborate or provide more details in respect of facts already brought on
record. Amendments in W.S. taking additional defence pleas or
elaborating or explaining the defence pleas already taken can be allowed.
See:

22
 (i) Baldev Singh vs. Manohar Singh, (2006) 6 SCC 498
(ii) Ram Sahai vs. Ramanand,(2004) 13 SCC 40
(iii) Estralla Rubber vs. Dass Estate (P) Ltd., vs. (2001) 8 SCC 97
(iv) Punjab National Bank vs. Indian Bank, (2003) 6 SCC 79

36. Proviso to o.6, rule 17 CPC added w.e.f. 01.07.2002 & its meaning:
Clarifying the scope and limit of Proviso to O. 6, rule 17 CPC added w.e.f.
01.07.2002, the supreme court has held that the words “trial has
commenced” used in o.6, rule 17 CPC must be understood in the limited
sense as meaning “final hearing of the suit, examination of witnesses,
filing of documents and addressing of arguments” See: Baldev Singh vs.
Manohar Singh, (2006) 6 SCC 498

37. Amendment after commencement of trial when to be allowed: Proviso

added to o.6, rule 17 CPC w.e.f. 01.07.2002 is mandatory. However,
amendment can be allowed only if inspite of due diligence the party could
not have raised the matter before the commencement of the trial and when
the proposed amendment is necessary to decide the real dispute between
the parties. No application for amendment moved u/o.6, rule 17 CPC
should be allowed after the commencement of trial unless the court is
satisfied that the party seeking amendment, despite exercise of due
diligence, could not have raised the plea or amendment before the
commencement of trial. See:
(i) Vidyabai vs. Padmalatha, 2009 (1) Supreme 238
(ii)Ajendra Prasad vs. Swami Keshav Prakash,AIR 2007 SC 513
(iii)
Prabhu Niwas vs. Laxmi Niwas, 2006 (63) ALR 23 (All)
(iv)Salem Advocates Bar Association vs. Union of India, (2005) 6 SCC
344 (Three Judge Bench)
(v) Pradeep Singhvi vs. Heero Dhankani, (2004) 13 SCC 432

38. Trial in a civil suit when commences? : The date of first hearing in a
civil suit is the date fixed for framing issues, i.e., the date on which court
applies its mind to the facts and controversies involved in the case. Any

23
 date prior to such a date would not be a date of first hearing. Date for
filing written statement is not the date for hearing of the suit. Trial in a
civil suit commences on the date when the suit is taken up for framing of
issues by the court after perusal of pleadings of the parties. But in a
proceeding under the PSCC Act, 1887, any date fixed for hearing of the
case would be the date of hearing as there is no provision under the PSCC
Act, 1887 for framing of issues. See:
(i) S.K. Gupta vs. B.K. Jain,2007 (66) ALR 104(All)
(ii) Vidyabai vs. Padmalatha,2009 (1) Supreme 239
(iii) Mamchand Pal vs. Smt. Shanti Agarwal,2002 (47) ALR 1 (SC)
(iv) Ashok kumar vs. Rishi Ram,2002 (48) ALR 401 (SC)
(v) K.K.Gupta vs. ADJ,2004 (57) ALR 776 (All)

39. Affidavit must in support of amended pleadings: After the amendments

in CPC w.e.f. 01.07.2002, the party must file a fresh affidavit in support of
his amended pleadings. In view of the provisions u/s 26 (2) CPC r/w o. 6,
rule 15(4) CPC, affidavit must be filed in support of the pleading but such
affidavit would not be read as evidence for the purpose of trial. See:
Salem Advocates Bar Association vs. Union Of India, (2005) 6SCC 344
(Three Judge Bench)

40. Amendment ousting jurisdiction of court: A civil court u/o. 6, rule 17

CPC can allow the plaint to be so amended as to result in ousting its own
jurisdiction in the matter and in case the amendment is allowed and
carried out, the proper course to be followed is to return the amended
plaint to the plaintiff for presentation to the proper court u/o. 7, rule 10
CPC. See: Benisham vs. Mahadeo, AIR 1985 Bombay 462 (D.B.)

41. Revision u/s 115 CPC against grant of application u/o 6, rule 17 CPC:
Revision u/s. 115 CPC is not maintainable when an amendment
application has been allowed by the court u/o 6, r. 17 CPC. Order allowing
amendment would not even remotely cause failure of justice or irreparable

24
 injury to any party, as respondent would get opportunity to file a written
statement and he would be able to raise all his defence and he would also
have a chance to take up points decided against him before appellate court.
See: Prem Bakshi & others vs. Dharam Dev & others, AIR 2002 SC 559

42. Revision u/s 115 CPC against rejection of application u/o 6, rule 17
CPC: Revision against an order rejecting amendment application u/o 6, r.
17 CPC is maintainable. See: Mukhtar Ahmad vs. Sirajul Haq, 2006 (63)
ALR 718 (All)

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