- Code of Civil Procedure 1908 was enacted to consolidate and amend the laws relating to the procedure of Courts of Civil Judicature. Though it deals with certain substantive rights, its main objective is to regulate civil procedure.
- Order 6 of the Code deals with Pleadings which are the backbone of the suit. Under Rule Order 6 Rule 17, parties at any stage of the suit, with the due permission of the court may amend their pleadings if such amendment is necessary for the determination of real issues in controversy between the parties.
- The court does not have unfettered discretion in allowing amendment of pleadings. It is guided by certain principles as directed by the Hon’ble Supreme Court time and again.
Pleadings are statements in writing drawn and drafted by the parties with the assistance of their respective counsels to support their claims. Pleadings form the backbone of the suit upon which issues are framed and trial is conducted. In a civil suit, parties have the option to amend their pleadings by filing an application to that effect before the court under Order 6 Rule 17. Rule 1 of Order 6 defines pleadings as a plaint or a written statement. A plaint is filed by the plaintiff upon which a suit is instituted whereas a written statement is filed by the defendant in response to the averments in the plaint to defend his position by admitting or denying the facts as specified in the plaint.
Pleadings are of tremendous importance as they not only define the issues between the parties for the final decision of the court but are of great importance throughout the process of litigation. Hence, all the material facts and necessary particulars must be stated in the pleadings as the decision cannot be based on grounds outside the pleadings. So if new information has come up, or a document whose existence was previously unknown has been disclosed or other like circumstances, the pleadings can be amended.
ORDER 6, RULE 17-18
The object of the rule is that the courts must decide the case on its merit and it must allow any amendments which are necessary for determining the real question in controversy between the parties if it does not cause injustice or prejudice to the other side. This is necessary to avoid the multiplicity of litigation and to cover all the issues arising out of one set of facts in a single suit. It has been observed that while dealing with the application for amendment of pleadings, the court should not reject bonafide, legitimate, honest and necessary amendments. Similarly, malafide and dishonest applications should not be allowed.
The rule confers wide discretion on the court in regard to the amendment of pleadings. As a general rule, leave to amend the pleadings will be granted where it is necessary to determine the real issues in controversy between the parties to be raised in pleadings, where the amendment will occasion no injury to the opposite side and if at all it happens, it can be compensated by way of costs. The courts should not take hyper-technical approach while dealing with applications for amendments. The amendments sought only as a part of dilatory tactics should not be allowed.
In Kisandas vs. Rachappa, it was held that all amendments that satisfy the two below-mentioned conditions are ought to be allowed:-
- Of not working injustice to the other side and
- Of being necessary for the purpose of determining real questions in controversy between the parties.
If the amendment sought satisfies a cardinal test i.e., of being necessary to determine the real question in controversy, it should be allowed even if the court thinks that the party would not be able to prove the amended plea.
With this wide discretion upon courts to allow the amendment but, the courts are also bestowed with a great responsibility in this regard. Discretion cannot be exercised arbitrarily and has to be exercised judiciously. A few aspects that the court must consider while granting or effusing to grant the application for amendment of pleadings are as follows:-
- Whether the amendment sought is necessary for proper and effective adjudication of the subject matter in the case?
- Whether the proposed amendment completely and fundamentally changes the nature and character of the stand taken by the party concerned?
- Whether by allowing the proposed amendment any right vested in other party by lapse of time is going to be materially affected?
If the answer to question ‘a’ is affirmative and the answer to ‘b’ and ‘c’ is negative, the application should be allowed.
PROVISO TO RULE 17
The rule stipulates that the application for amendment may be made at any stage. However, the proviso added in 2002 states that no application shall be allowed after the commencement of trial unless the court is satisfied that inspite of due diligence, the party could not have raised the matter before the commencement of trial. As per the general consensus, the trial in a civil suit begins once the issues are framed by the court.
In a landmark case of Mohinder Kumar Mehra vs Roop Rani Mehra AIR 2017 SC 5822, the Supreme Court held that the trial begins when after the issues are framed and the case is fixed for hearing, and the party has a right to begin has to produce its evidence, the suit commences.
In cases of amendment of the written statement, the courts are far more liberal in allowing the amendment than that of amendment of a plaint as the question of prejudice would be far less in the former than in the later case. However, once a written statement contains an admission of the defendant, it cannot be withdrawn by way of amendment which if allowed, will cause grave prejudice to the plaintiff.
Recently, the Hon’ble Supreme Court in Shivshankara v. H.P. Vedavyasa Char, 2023 SCC OnLine SC 358 was faced with a question involving the amendment of the written statement at the appellate stage before the High Court. The Hon’ble Court held that the amendment of the written statement cannot be allowed at the appellate stage especially when an adverse decree and order has been challenged in appeal without a genuine and suitable reason.
In another landmark case of M/s. Revejeetu Builders and Developers vs Narayanswamy and Sons & Ors. AIR 2009 SC (Supp) 289, the Hon’ble Supreme Court held that amendments should not be used as a tool to cause unnecessary delay in proceedings by further emphasizing on the real controversy test and laid down comprehensive guidelines for imposition of costs on the party seeking to amend pleadings.
ORDER 6 RULE 18
Rule 18 sets a time limit for parties to actually amend the pleading after obtaining a favorable order to do so. It stipulates that if a party after obtaining an order to amend the pleading fails to do so within the stipulated time or if no time is stipulated, then within 14 days, he shall not be allowed to amend the pleadings after such time or 14 days as the case may be unless the time is not extended by the court. This may be read with Section 148 of the Code which deals with enlargement of time by the Court.
In the light of above discussions, it can safely be concluded that amendment of pleadings is a necessary element to ensure a smooth trial. If the parties are not at all allowed to amend their pleadings in any case, it would lead to a multiplicity of litigation for the averments and causes of action not dealt with earlier and the dispute might be left unresolved.
However, discretion has to be used with great responsibility with the ultimate idea of justice in mind. Allowing the amendment to a party should not cause prejudice to the other party in a way which cannot be compensated by the imposition of costs