Court should not consider merits of amendment while deciding amendment application
It cannot be disputed that ordinarily all
amendments ought to be allowed, which are essential for to determine the real controversy in the suit. The precaution
for the Court must be to see that the proposed amendment
should not materially alter/vary/annul the substantive relief claimed in the plaint and in other words, it should not be a
substitute for the original cause of action on which the original suit has been filed. By means of proposed
amendment, a Court is to see whether any prejudice is likely
to be caused to the other side which cannot be compensated by means of costs. It is to be borne in mind by the trial Court
that no litigant should suffer either on account of mistake committed by a Court of Law on account of technicalities or hyper-technicalities of law. To put it in brief, an amendment
sought for by a litigant either as plaintiff or defendant ought to be allowed by the Court to reduce/ minimize the litigation between the parties to avoid multiplicity of proceedings.
Furthermore, an error or mistake, which if not fraudulent, should not be the ground for rejecting the Application for
amendment of pleadings. If the amendment/amendments sought for in the amendment application goes to the very
root of the matter or it concerns with the real issues in controversy between the respective parties, the said
application/amendment, in the considered opinion of this
Court, ought to be allowed, notwithstanding the fact there
may be a negligence, omission, on the part of a particular party applying for amendment in regard to the inordinate or
long delay that has occurred relating to the proposed
amendment. It is no doubt the discretion of the Court before which the application comes for hearing when it deals with
an amendment application seeking amendment of plaint. Order VI, Rule 17 of Civil Procedure Code gave wide discretion to permit amendment even by condoning laches
or delay, to impose costs and permit amendment for just and proper final decision in the suit. While allowing an amendment application in respect of pleadings, a Court cannot be expected to go into the merits and demerits of the
amendment. It must be borne in mind that, the rules of procedure are only handmaid of Justice. A party/parties
should not be denied/refused the just relief, because of some inadvertence, mistake or negligence or even the infraction of
rules of procedure committed by the parties to the litigation. The substantive justice is to determine the real controversy
between the parties finally by a conclusive judgment and
order. It may be noted that the relief is based on the same
facts previously pleaded. The relief prayed in the suit in substance appears to be based on the title claimed by the
plaintiffs and for possession and injunction. The delay to
prefer amendment or negligence may be penalized by imposing reasonable cost, but not by the complete or blanket
refusal to amend the plaint because the real controversy in the suit is required to be decided finally by the trial Court.
Bombay High Court
kamlesh v kalyan on 4 July, 2013
Bench: A.P. Bhangale
1. Kamlesh s/o. Jagannath Suryavanshi,
// VERSUS //
B
1. Kalyan s/o. Shirshir Kumar Dutta,1
Citation;2013 (6) MH L J 193
-https://www.lawweb.in/2013/11/court-should-not-consider-merits-of.html