Amendment of Plaint Legally Permissible At Any Stage of The Suit

It is settled law that amendment of a plaint can be made at any stage of a suit. The Apex Court in a catena of judgments have categorically held that the courts must be extremely liberal in granting the prayer for amendment of plaint because if such amendment is not allowed the party shall suffer irreparable loss and injury. The court should allow an amendment if it is of the view that allowing such an amendment shall sub-serve the ultimate cause of justice

Before deliberating on the subject in hand, it would be relevant to reproduce Order VI Rule 17 which reads as under:

Order VI Rule 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."

It is relevant to refer to the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil & 2 Ors., 1957 SCR 595 wherein the Apex Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. The Apex Court approved the observations in Kisandas Rupchand & Anr. v. Rachappa Vithoba Shilwant and Ors. reported in ILR (1909) 33 Bom 644, wherein the Bombay High Court laid down the principles in this regard thus:

10. All amendments ought to be allowed which satisfy the two conditions:

1. Of not working injustice to the other side, and
2. Of being necessary for the purpose of determining the real questions in controversy between the parties … but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine.

That doctrine, as I understand it, is that 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. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not?"

The Apex Court in Ganga Bai v. Vijay Kumar & Ors., (1974) 2 SCC 393 categorically held that the power to allow an amendment is undoubtedly wide and may be appropriately exercised at any stage in the interests of justice, notwithstanding the law of limitation. The Court observed thus:

"22. 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."

The Apex Court in M/s Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91 laid down the principles for amendment of plaint thus:

"4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its Counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."

It would be apropos to refer to Harcharan v. State of Haryana, (1982) 3 SCC 408 wherein the Apex Court dealing with the captioned subject held as under:

" We are, therefore, left to the only question whether the appellant should be denied an opportunity to agitate what is the market value of the land and what would be justly due to him on the ground of delay in moving the application for amendment of pleadings. We need not dilate on this question in view of the decision of this Court in Ganesh Trading Co. v. Moji Ram 1978 2 SCC 91wherein it has been observed as under:

"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."

It is pertinent that Amendment of Plaint can be made even at the second appellate stage as held by the Apex Court in the case of Rajender Prasad v. Kayastha Pathshala, (1981) Supp 1 SCC 56.

In the case of Babu Lal v. Hazari Lal Kishori Lal And Others 1982 (1) SCC 525, the Apex Court asserted that plaint can be amended even at the execution stage.

It is thus clear that the Legislature has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings. In the instant case the High Court granted the relief of possession and the objection raised on behalf of the petitioner is that this was not possible at the execution stage and in any case the Court should have allowed first an amendment in the plaint and then an opportunity should have been afforded to the petitioner to file an objection.

It is settled law that the principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. In fact, the courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The Apex Court in the case of South Konkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors., (2008) 14 SCC 632 dealt with the issue in hand and observed thus:

"It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation."

It is germane to refer to the case of Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352 wherein the Apex Court held that if a prayer for amendment merely adds to the facts already on record, the amendment would be allowed even after the statutory period of limitation. The Court observed thus:

"Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record the amendments would be allowed even after the statutory period of limitation. The question in the present case is whether by seeking the benefit of s.39 of the new Act there is a change in the cause of action."

It would be appropriate to refer to G. Nagamma & Anr. v. Siromanamma & Anr., (1996) 2 SCC 25 wherein the Apex Court allowed the proposed amendment of the plaint after noticing that neither the cause of action would change nor the relief would be materially affected.

It would be apposite to refer to Pankaja & Anr. v. Yellappa (dead) by lrs. & Ors., (2004) 6 SCC 415 wherein the Apex Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation depending on judicial evaluation of the facts and circumstances of the case. The Court observed thus:

12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held that the dominant purpose of allowing the amendment is to minimise the litigation, therefore, if the facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application.

14. The law in this regard is also quite clear and consistent that 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. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed.
There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

A three Judge Bench of the Apex Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board (2004) 3 SCC 392 had in clear terms held that an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation but ought to be decided considering the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice. The Court observed thus:

"The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd and Anr. v. Messrs Jardine Skinner and Co., AIR (1957) SC 357 = [1957] SCR 438, it was held that the Court as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it.
It is not disputed that the appellate court has a co-extensive power of the trial court. We find that the discretion exercise by the High Court in rejecting the plaint was in conformity with law."

Reference to Rajkumar Gurawara (Dead) Through L.Rs vs. S.K. Sarwagi & Company Private Limited & Anr. (2008) 14 SCC 364 would be purposeful wherein the Apex Court considered the scope of amendment of pleadings before or after the commencement of the trial and held as under:

"...........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 in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation........."

It would be useful to refer to Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors. (2009) 10 SCC 84 wherein the Apex Court considered the scope of amendment of pleadings and concluded thus:

Factors to be taken into consideration while dealing with applications for amendments

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 the 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 with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

In Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. 2012 (5) SCC 337 the Apex Court explained the object of the amendment of pleadings and observed thus:

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.

It is true that Order VI Rule 17 of the Code confers wide discretionary power upon the court to allow either of the parties to amend their pleadings but this discretion ought to be exercised by the Courts with judicial mind and after due application of the precedents in this regard. The Judiciary is entrusted to do full and complete justice to the litigating parties and that is possible only when the real issue between the parties is heard. It has therefore been mandated to give power to the Courts to grant amendments to pleadings.

The very purpose is to do complete justice and not to create impediments by punishing them for inadvertent mistakes/negligence or by taking hyper-technical views. It therefore follows that:
Both the plaintiff and the respondents can make applications for the amendment of the plaint and written statement. The courts therefore must not refuse any amendments that are bona fide, necessary, and honest. The basic consideration for permitting amendments by the Courts should be to avoid a multiplicity of litigations.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]