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Published : January 10, 2013 | Author : ArindamG
Category : Civil Laws | Total Views : 21625 | Rating :

  
ArindamG
Arindam Ghosh Student, HNLU, Raipur
 

Amending the Pleadings and the approach of the Judiciary

The most challenging problem facing the administration of justice in India is the backlog and resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme Court. One of the provisions which contribute to it is provision related to amendment of pleadings given in Order VI, rule 17 of the Code of Civil Procedure.

Pleadings are statement in writing delivered by each party alternately to his opponent, stating what his contentions will be at the trial, giving all such details as his opponent needs to know in order to prepare his case in answer. It is an essential requirement of pleading that material fact and necessary particulars must be stated in the pleadings and the decisions cannot be based on grounds outside the pleadings. But many a time the party may find it necessary to amend his pleadings before or during the trial of the case. Rule 17 of Order VI deals with the provision of amendment of the plaint.

Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An amendment can be by way of altering something, modifying something, deleting something.

Order VI Rule 17 reads as under:
"17. 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."

Essentials of pleadings
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 1 defines pleading; Rule 2 lays down the fundamental principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.

Amendment of pleadings
The Court may at any stage of the proceedings allow both 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 question 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.

Amendment and its objectives

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 side. 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 parties Provisions for the amendment of pleading are contained to promote end of justice and not for defeating them. 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”.

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 order.

In Kisandas v. Vithoba, Batchelor J. observed as follows: “All amendments ought to be allowed which satisfy the two conditions:

1. of not working in justice to the other side, and

2. 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 suits, or where the parties in the plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence, the amendment should be allowed.

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 Kumar, 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 partie. The real controversy test is the basic test. In Edevian v. Cohen, the application for amendment was rejected since it was not necessary to decide the real question in controversy.

2. Leave to amend 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., 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.

3.Leave to amend will be refused where the effect of the proposed amendment is totake away from the other side a legal right accrued in his favour . Every amendment should be allowed if it does not cause injustice or prejudice to the other party. In Weldon v. Neal 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 faith. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai v. Ratanlal, 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.

Amending petitions delays justice
In a major judgment that aims to thwart attempts by a large section of litigants locked in civil cases to delay proceedings for their benefit, the Supreme Court has said that the provision in the Civil Procedure Code (Order VI Rule 7) that allows improvement in averments could be done away with, as “this is the most misused” law for “dragging the proceedings indefinitely”.

The already overloaded civil courts are compelled to defer hearings, which causes delay in disposal of disputes, the court said. Applications for amendment lead to further delay, it said.

Civil courts must adhere to certain guidelines while granting adjournments, the court said. And they must assess whether the plea is counter-productive to speedy dispensation system. It must be decided whether the plea for amendment to the petition is necessary for determining the real disputed question.

The court must exercise discretion while assessing the “potentiality of prejudice or injustice likely to be caused to the other side” and award costs accordingly. A bench of justices Dalveer Bhandari and Harjit Singh Bedi also said that discretion must be used judiciously and the courts concerned must compensate the other party for “unnecessary delay and inconvenience caused to him”.

The purpose of imposing exemplary costs, the Bench explained, was to discourage mala fide amendments designed to delay legal proceedings. It compensates the other party for avoidable expenses on the litigation, which had to be incurred by him for opposing the amendment and lastly “to send a clear message that the parties have to be careful while drafting the original pleadings”.

With a view to avoid delay and to ensure speedy disposal of suits, the government deleted the provision in 1999 on Law Commission’s recommendation. But it restored the section succumbing to “public uproar”.

In his book Justice, Courts and Delays, author Arun Mohan, a senior lawyer, said 80% applications under this provision “are filed with the sole objective of delaying proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need for amendment”. Of these 100 applications, 95 are allowed and only 5 (may be even less) are rejected, the bench quoted from the book.

The Chief Justice of India (CJI) KG Balakrishnan has revealed that about 39 lakh cases including 32 lakh civil and 7.71 lakh criminal are pending in high courts. Subordinate courts have 76 lakh civil and 1.89 crore criminal matters to decide.

The average disposal per judge comes to 2,504 cases in the HCs and 1,138 in subordinate courts, if calculated on the basis of disposal in 2008 and working strength of judges as on December 31, 2008.

Thus, at least 1,547 HC judges and 23,207 subordinate court judges are needed to just clear the backlog in one year. The requirement would come down to 774 HC judges and 11,604 subordinate judges if arrears alone have to be cleared in the next two years.
The sanctioned strength of HC judges is 886 and working strength 606 on January 1. That means 280 vacancies.

General Principles
Justice P. Sathasivam, and Justice J. Chelameswar of Supreme Court of India in the case of Ramesh kumar Agarwal vs Rajmala Exports P.Ltd.& Ors.The court discussed the principles governing the Amendment of pleadings and held that "It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations."

This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:

1. Surender Kumar Sharma v. Makhan Singh, at para 5:
"5. As noted here in earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment."

2.North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by LRS, at para16:
"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that 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. 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."

3.Usha Devi v. Rijwan Ahamd and Others, at para 13:
"13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as follows: (SCC pp. 504-05)

"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit.

From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure 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. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings."

4.Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others, at paras 15 & 16:
"15. The object of the rule is that the courts should try the merits of the case 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 side.

16. Order 6 Rule 17 consists of two parts; the first part is discretionary (may) and leaves it to the court to order amendment of pleading whereas the second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties."

5.Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, at para 63
"63. On critically analysing 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 imperative 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 multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes he 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 application. These are some of the important factors which may be kept in mind while dealing withapplication filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

The above principles make it clear that Courts have ample power to allow the application for

amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.

Conditions
The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. “It is settled law that the grant of application for amendment be subject to certain conditions, namely,

(i) when the nature of it is changed by permitting amendment;

(ii) when the amendment would result introducing new cause of action and intends to prejudice the other party;

(iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”

Effects
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 ones.

Conclusion
It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil suits. But, the court cannot grant the leave of amendment at its whims and fancies. There has to be certain criterion for granting or refusing the leave, which has been laid down in case laws. It is a well known fact that delay in justice is one of the basic flaws of the Indian Judiciary and amendment of pleadings is a vital reason for that.

The Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide amendments. Amendment of pleadings cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a mechanical approach. The court should adopt a liberal approach in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

Before I conclude I would like to opine with the former Attorney General of India Mr. Soli Sorabjee that –

Justice delayed will not only be justice denied, it will also destroy the Rule of law, - a basic feature of our Constitution. However, let us gird up the loins to protect and preserve it.”
~~~~~~~~~~~~~
# [1884] 26 Ch. D. 700
# (1909) ILR 33 Bom 644
# 1974 SCR (3) 882
# [1889] 41 Ch. D. 563
# (1886) 16 QB 178
# (1887) 19 QBD 394 at 395
# 1990 SCC (2) 42
# Arun Mohan, JUSTICE, COURTS AND DELAY (2009), Universal Publishing Co. Pvt Ltd.
# (2012) 5 SCC 337
# (2009) 10 SCC 626
# (2008) 8 SCC 511
# 1957 SCR 595
# (2008) 3 SCC 717
# 2006 (4) Suppl. SCR 259
# (2006) 4 SCC 385
# (2009) 10 SCC 84
# (2008) 8 MLJ 307 (SC)
# AIR 1976 All 399

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