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DR.

RAM MANOHAR
LOHIYA
NATIONAL LAW
UNIVERSITY
LUCKNOW

Final Draft

Subject: - Civil Procedure Code and Limitation Law

Project on: - Amendment in Pleadings

SUBMITTED TO: - SUBMITTED BY:


Mr. Radheshyam Prasad Srijita Kundan
Asst. Professor (Law) Roll No. 133
Semester VI
Table of Contents

Introduction................................................................................................................................1

Chapter1- When leave to amend is to be granted.......................................................................3

Chapter 2- Alteration of the fundamental nature of the suit......................................................5

Chapter 3- Interpreting at any stage of the proceeding..........................................................7

Chapter 4- Principles in granting leave to amend......................................................................9

Conclusion................................................................................................................................11

Bibliography.............................................................................................................................12
INTRODUCTION

The pleading process in various legal systems has traditionally been used for notifying the
opposite party of the case which has been filed against him. With the evolution of the legal
practice there has emerged a trend to uncover relevant factual details against the opponent. 1 The
modified purpose then is to direct attention towards the facts which lead to the cause of action in
order to ensure that the other side can go ahead with his discovery.2 At common law the pleading
practice was a mechanical and rigid exercise such that mis-spellings of minor details were not
allowed.

The law relating to pleadings is contained in the Code of Civil Procedure 1908. Order 6 of the
code contains provisions dealing with pleadings extensively. Amendments of pleadings are of
three types: the first one is the courts general power of the court to amend any defect or error in
the proceedings to decide on the issue in question.3 This power is rarely exercised by the courts,
the second one is the process of making amendments in the other sides pleadings by striking out
or adding parties and the third and the most litigated one is where the parties make amendments
in their own pleadings vide applications under Order VI Rule17. This provision enumerates that
the court may at any stage of the proceedings allow either party to amend their pleadings given
that such an amendment is necessary to adjudicate on the real issue in the case. 4 A significant
change was made to the law relating to amendment of pleadings vide the CPC (Amendment) Act
2002. A proviso was added to the rule which in effect limited the power of the court to grant an
amendment at any stage. The proviso enumerated that no application for the amendment of
pleadings shall be allowed after the commencement of the trial.5

1 Peter J Donnici, The Amendment of Pleadings A study of the operation of Judicial


Discretion529, 37 S. Cal. L. Rev. 529.
2 Conley v. Gibson, 355 U.S. 41 (1957).
3 S 153, Code of Civil Procedure 1908.
4Order VI Rule 17, Code of Civil Procedure 1908.
5Ibid.

3
The original provision as to the amendment of pleadings was misused by the advocates in order
to delay the proceedings and therefore it was completely excluded which later lead to many
strikes and unrests. This was later harmonized and reintroduced in 2002 addressing the legal
conflict on the issue. The 2002 amendment has been interpreted by the courts to place the burden
on the plaintiff to prove that despite due diligence he could not make the application for the
amendment of the pleadings.

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CHAPTER1- WHEN LEAVE TO AMEND IS TO BE GRANTED

The provision relating to amendment of pleadings as enumerated in the code of civil procedure
confers a very wide discretion on the courts to grant an application for amendment, the courts are
generally liberal in granting amendments but they have evolved a cardinal test to determine if the
application is to be allowed.6 It is established by a catena of decisions that the primary
consideration is whether the amendment enables the real question in issue to be decided. The
correct law is laid down by the Privy Council in the case of Kisandas v. Rachappa Vithoba.7

Facts- In this case the plaintiffs claimed that they were a partnership firm and that the defendant
owed a sum of money to them, this plea was rejected by the lower court as the court found that
there existed no partnership firm. The plaintiff appealed claiming that a partnership did exist, but
later on with the change in counsel sought to amend its pleadings to abandon the claim that it
was a partnership and to add a prayer as to the recovery of the amount. The court allowed the
amendments to be made as the plaintiff at first intended to sue for the recovery amount. The
defendants preferred an appeal to the High Court.

Issue- The central issue in the case is whether the lower courts order allowing the amendment of
pleadings is to be disturbed or not?

Held: The court formulated two conditions which if fulfilled would merit an amendment to the
pleadings. The first condition framed was that not working injustice to the other side and the
second condition was that of being necessary to determine the real question in controversy
between the parties.8 In the present case the court came to a conclusion that the amendment was
necessary to determine the fundamental issue as to the other condition relating to the effect of the
amendment on the other party the court propounded a test. This test is that the amendments
should not be allowed only when the other party cannot be placed in the same state as if the

6 CK Takwani, Civil Procedure, 214, (2009)


7 ILR (1909) 33 Bom 644.
8Kisandas v. RachappaVithoba, at 1 5.

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pleadings were originally correct, but the amendment would lead to an injury which could not be
compensated in costs.9

The appeal was dismissed.

Similarly, in the case of LJ Leach and Company v. Jardine Skinner10:

Facts- The appellants in the case entered into a contract with the respondents for the exclusive
right to sell the products of the respondent company in a particular region in central India. A
clause of the contract provided that either party may terminate the agreement with a prior notice
of three months. The respondent company terminated the agreement, before termination the
respondent company had ordered certain goods to be sold by the appellant. The appellant called
upon the company to deliver the goods but the company claimed that they had title over the
goods and were under no obligation to transfer the goods to the appellant. The appellant
instituted a suit for damages for conversion. The High Court rejected the petition on the
reasoning that the title of the goods was with the respondent company and had not passed to the
appellants. The Supreme Court approved of the position taken by the High Court but the
appellant sought an amendment to his pleadings asking for a prayer of damages from breach of
contract to be added. The respondents contended that this lead to a new cause of action and as a
fresh suit was barred by limitation the plea for an amendment to the proceedings be rejected.

Issue: Does the fact that new damages are claimed by the appellant alters the cause of action?
Can such a plea be admitted given that a fresh suit is barred by limitation?

Held: The Supreme Court accepted the proposition of law presented by the respondent. 11 At the
same time the court held that the case was suitable to allow the amendment as there was no
alteration of the cause of action by the addition of the plea of damages resulting out of breach of
action, as the claim for such damages is sourced from the original cause of action which is a

9 The Court borrowed this test from Weldon v. Neal (1887) 19 Q.B.D 89.
10AIR 1957 SC 357.
11 This refers to the position of law that where the suit is barred by limitation no amendment can
be made to the pleadings which leads to a new cause of action.

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clause of the agreement between the two parties.12 The court relying on the landmark case of
Charan Das v. Amir Khan13 held that as a rule the courts would decline to allow amendments if a
fresh suit is barred by limitation on the date of the application. But this is a factor which is to be
considered by the court in exercising its discretion to allow the application and does not affect
the power of the court to allow it in the larger interest of justice.14

The appeal is allowed. The case is to be heard again by the trial court allowing the amendments
to the pleadings.

12 LJ Leach and Company v. Jardine Skinner, at Para 18.


13 [1920] 47 I.A 255.
14 LJ Leach and Company v. Jardine Skinner, at Para 19.

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CHAPTER 2- ALTERATION OF THE FUNDAMENTAL NATURE OF THE SUIT

Leave to amend will be disallowed if it changes the fundamental character of the suit or if it
seeks to introduce a totally different and inconsistent case. The authority for this proposition is
the English case of Steward v. North Metropolitan Tramways co. 15 In this case the plaintiff
sought to add a proposition by which it claimed that the liability to maintain the property was on
the defendant. J Pollock held that such an amendment would fundamentally alter the suit and
therefore will not be allowed.16 The Supreme Court has adopted this proposition in numerous
cases. For example, in the landmark judgment of the State of AP v. Pioneer Builders17 wherein-

Facts: The government invited tenders for the construction of a canal in the State of Andhra
Pradesh and the appellants tender being the lowest he was awarded the contract. The
government terminated the contract and the appellant filed for an injunction restraining the
respondent from enchasing the bank guarantee towards the performance of the contract. 18The
High Court dismissed the petition on the grounds that there was no claim for a specific amount.
In light of this judgment Pioneer Builders filed an application for amendment of pleadings 19 by
which they sought to claim a specific amount. The lower court allowed the amendment, both the
parties appealed to the High court but their appeal was dismissed.

Issue: The core issue in this case is whether an amendment adding a claim of a specific amount
fundamentally changes the nature of the suit? And whether such an amendment can be allowed
by the court under Order VI Rule 17?

Arguments: The counsel for the government contended that the effect of allowing the
amendment would in effect mean that the suit which was originally filed under S 20 of the
Arbitration act to be converted into a civil suit. He argued that this would fundamentally change

15 (1886) 16 Q.B 178 (CA).


16 Steward v. North Metropolitan Tramways co, (1886) 16 Q.B 178 (CA)
17 AIR 2007 SC 113.
18 Filed an application under Order XXXIX Rule 1.
19 Vide Order VI Rule 17.

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the nature of the suit and therefore such an application cannot be allowed. He placed reliance on
the judgment of the Supreme Court in Ibrahim v. Food Corporation of India 20 and in Bharat
Cooking v. Raj Kishore21 to substantiate his claim.

The counsel for Pioneer Builders contended that though the suit was filed under the arbitration
act because of the vague language of the arbitration agreement in effect it was a civil suit and
that a mere technical irregularity should not leaf to a travesty of justice.

Held: The power of the courts to allow amendments is wide and can be used at any stage to do
justice. Relying on Jardine Skinners case22 the court observed that unless an irreparable harm is
caused to the other side a liberal approach must be preferred over a hyper technical approach
when it comes to amendment of pleadings. J DK Jain goes on to say that notwithstanding the
liberal approach the court should not allow an amendment which changes the subject matter of
the suit.

Matter remanded to the High Court to decide on the issue.

Therefore it is now an established principle of civil law that in most cases the courts will not
grant an amendment if the fundamental character of the suit is being changed, though they might
do so in the larger interest of justice.

20 AIR 1999 SC 3033.


21 (2000) 9 SCC 174.
22 [1957] 1 SCR 438.

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CHAPTER3- INTERPRETING AT ANY STAGE OF THE PROCEEDING

The civil procedure code gives the court a wide discretion and allows the court to allow an
application for amendments of pleadings at any stage of the proceedings. 23 The court may grant
leave to amend before or after the trial, at the stage of first appeal, second appeal and even in the
Supreme Court.24 This unlimited power of the court has been limited by the legislature and
according to the present law the court must not award leave to amend after the commencement of
the trial except where it comes to the conclusion that in spite of due diligence the party could not
have raised the matter prior to the commencement of the trial.25 The Supreme Court has
interpreted this proviso to place a burden of proof on the applicant to prove that he could not
have raised the matter before the commencement of trial. 26 For a better understanding of the
present law it is worthwhile to analyze the apex courts decisions after the amendment in 2002
wherein in the case of North-eastern Railway Administration v. Bhagwan Das27 (2008)

Facts:In this case the respondent had initiated a suit for perpetual injunction against the appellant
to restrain him from interfering in his land and cultivation, the suit was contested by the
appellants on the ground that after acquisition the land had been transferred to them by the
government. The lower court ruled in favor of the respondents and the case went up to the high
court. The High Court rejected the appeal and declined to allow an amendment to the pleadings
of the appellant on the ground that it was a second appeal and at this stage no amendment should
be allowed.

Issue: Can amendments be allowed at the second appeal stage in light of Order VI Rule 17.

Arguments: The counsel for the appellant argued that in light of the collectors report and the
uncovering of material facts the court should have allowed the amendments as this would have

23 Vide Order VI Rule 17.


24 CK Takwani, Civil Procedure, 223, (2009)
25 Proviso to Order VI Rule 17.
26 Salem Advocate case, AIR 2005 SC 3353.
27 (2008) 8 SCC 511

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shown the fraud on the part of the respondents and would have made a material difference in the
outcome of the case. The appellants claimed that by disallowing the application for amendment
has resulted in miscarriage of justice.

The Counsel for the respondents contended that the High Court was right in disallowing the
amendment as it was filed at a belated stage to fill in the lacuna in the petition.

Held:The court came to the conclusion that despite the proviso added in 2002 Order VI Rule 17
gives a wide discretion to the courts and therefore the amendments even at a belated stage should
be allowed if it does not cause an irreparable injury to the other party.

Therefore the court held that in the interest of justice the plea for amendment of pleadings should
be allowed and remitted the matter to the High Court.

Another judgment of the court to be considered on this point is in the case of P Kunjukrishna
Pillai v. Sreekantan Nair28

Facts: In this case the respondent was married to one Omana and her brother had gifted a certain
property by way of gift deed to her. After her death the husband the respondent in this case
claimed that the property would now go to him as she did not have any other heirs. The
appellants contended that the property would go to them as there was no valid marriage and in
any case the property had come to Omana from her father and therefore would revert back to that
family. The lower court ruled in favor of the husband, when the case went up to the High Court
the appellants sought to amend their pleadings in light of evidence regarding the fact that there
was no valid gift to Omana by her brother. The High Court rejected the application on the ground
that the trial had already commenced and there was a delay of six years.

Issue: Should the application to amend be allowed after six years and the commencement of the
trial?

Held: In spite of the section categorically stating that the court should not allow an amendment
after commencement of trial unless it could not have been presented any time before the
Supreme Court held that the commencement of the trial could not be a ground in itself to reject

28 MANU/SC/8620/2008.

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the application to amend. The Court held that the appellants were only adding a ground to their
written statement and not introducing anything inconsistent with the written statement. The court
allowed the appeal and remitted the matter to the trial court.

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CHAPTER 4- PRINCIPLES IN GRANTING LEAVE TO AMEND

The main aim in exercising the power to allow amendments under the code of civil procedure 29 is
to further the ends of justice and not to defeat them. The purpose of the pleadings is to come to
the right conclusion and not to punish the applicant for their negligence. The two cardinal
principles as discussed earlier are that the proposed amendment should be for deciding the
controversy and it should not cause an injury to the other party which cannot be remedied. Apart
from this the Supreme Court from time to time lays down principles as to amendment of
pleadings, the most recent instance of this is the landmark case of Revajeetu Builders v.
Narayanswamy.30

Facts: The appellant filed a suit before the additional city civil judge against the respondents for
recovery and also claimed that he be declared the absolute owner of the property in question in
accordance with the sale deed. In another case on the same subject the court has declared the
sale deed to be invalid and inoperative. At this juncture the land under which the case was
decided was repealed.31Accordingly the appellant filed an application under Order VI Rule 17 for
the amendment of 2 paragraphs and additions to the prayers. The changes made were
significantly different from the basis of the original plaint. The prayers that were sought to be
added were to declare the respondents as trespassers and to grant a permanent injunction against
the defendants for preventing them from obstructing or interfering in the property. The trial court
allowed the amendment, the High Court overruled the decision and held that as the amendments
change the fundamental character of the suit they should not be allowed and that the amendment
also effected the rights of the respondent.

Issue: The central issue in this case is whether in the interest of justice the court should allow the
amendment even if it makes fundamental changes to the prayer?

29 Order 6 Rule 17.


30 (2009) 10 SCC 84.
31 Urban Land (Ceiling and Regulation) Act, 1976.

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Arguments:The appellants argued that the fundamental nature of the suit would not be changed
as the plea was sourced from the original plaint but was not expressly pleaded. He also argued
that the amendment is necessary to decide the issue and must be allowed in the interest of justice.

The respondents argued that the fundamental nature of the suit is being altered as some claims
are sought to be deleted and also completely new prayers are sought to be added. They relied on
the SCs decision in UshaBalasahed v. Kiran Swami 32 where the court had held that a change in
the prayer without any connection to the original pleading would mean that the fundamental
character is being changed and should not be allowed. Also relied on Heeralal v. Kalyan Mal 33
where the court held that an admission made cannot be excluded by way of amendment.

Held: The court observed that Order 6 Rule 17 has been used by lawyers to delay proceedings
and such practices must be discouraged by the courts. The Court then discussed the plethora of
case law on the law relating to amendment of pleadings and came to the conclusion that the
amendment in this case must not be allowed as it would lead to the suit being fundamentally
altered and it would also contravene the settled position of law which states that an admission
made cannot be taken back by way of an amendment. In this backdrop the court went a step
further and framed six guidelines and in the process they summarized the whole of the law of
amendment of pleadings as applicable in India. The principles are as follows:

1) Whether the amendment which has been pleaded is necessary for a decision to be made
in the case at hand?
2) Whether the application for amendment is bonafide or malafide?
3) The amendment should not cause any prejudice to the other side which cannot be made
good through costs?
4) If refusing the amendment would lead to injustice or increase litigation?
5) Whether the proposed amendment changes the fundamental nature of the suit?
6) Normally the court should not allow amendments if a fresh suit on the amended claims
are barred by limitation on the date of the application.

32 (2007) 5 SCC 602.


33 (1998) 1 SCC 278.

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CONCLUSION

After examining the case law on the subject of amendment of pleadings the researcher would
like to point out that the current legal position has been clearly highlighted by the Supreme Court
in Revajeetu Builders case34, although the court in that case were cautious in pointing out that the
six principles enumerated were not an exhaustive list and further such principles may emerge in
the development of the law on the subject. The interesting finding coming out of the analysis is
that the courts are very liberal in allowing amendments to the pleadings and will refrain from
doing so only in exceptional circumstances.

Another important point to be noted is that the Revajeetu case35enumerates a principle by which
the court also has to look into whether the application was filed with a mala fide intent, this is a
recent development in the law relating to amendments and according to the researcher it is a
welcome move as this avoids unnecessary delay which has been a concern of the Indian courts
from time immemorial.

34 (2009) 10 SCC 84.


35Ibid.

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BIBLIOGRAPHY

Books
1) Dinshaw Mulla, MULLA THE CODE OF CIVIL PROCEDURE (2008 ed.)
2) Holdsworth, THE HISTORY OF THE ENGLISH LAW (1923)
3) Peter J Donnici, THE AMENDMENT OF PLEADINGS- A STUDY OF THE
OPERATION OF JUDICIAL DISCRETION 529, 37 S. Cal. L. Rev. 529.

Websites -

1. http://www.hinshawlaw.com/media/news/34_DSorensen,KSido_IICLEpleadings_050
112.pdf
2. http://www.mondaq.com/india/x/247576/Civil+Law/AMENDMENT+OF+PLEADIN
GS+AN+OVERVIEW

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