Amendment of Pleadings | Order VI Rule 17 [CPC]: A Critical Analysis
Maitreyi Choalla, a student of Gujarat National Law University explains the nuances of Amendment of Pleadings under Order VI, Rule 17 of Civil Procedure Code, 1908
bstract
In most cases, a country’s judicial system is designed to uphold the rule of law. Considering this principle, parties in a civil suit enjoyed unrestricted access to modify their pleadings under Order VI Rule 17 of the Indian Civil Procedure Code, 1908.
Concerns were brought to the Courts that such modifications or amendment of pleadings harmed the opposite party as well as slowed down the process of civil proceedings, resulting in piling up of cases. As a result, the Code of Civil Procedure (Amendment) Act, 1999 had removed this clause, However, this move witnessed a negative reaction by both law professionals and general populace.
Therefore, the Code of Civil Procedure (Amendment) Act, 2002 had reinstated the same, albeit with a caveat. This study aims to explore these changes and assess the scope and judicial interpretation of amendment of pleadings in Civil procedure with a doctrinal legal research method by using primary sources like cases, statutes, legal commentary and reports.
Keywords- Amendment of Pleadings, Civil Procedure Code 1908
Introduction
The principle followed in Civil Procedural Law is that the Court procedures and rules are designed to achieve substantial justice. Order VI Rule 17 is an example of such procedural law that is designed to serve justice to the parties by giving them a chance to amend their pleadings where it appears to be necessary.
The word ‘pleading’ in ‘amendment of pleadings’ can be understood by Order VI Rule 1 of the Civil Procedure Code(CPC), 1908. It defines a Pleading broadly `as a plaint or a written statement.[1] While a Plaint is a formal statement filed by a Plaintiff to substantiate his claim, similarly a Written Statement as per Order VIII Rule 1 is provided by a Defendant from his side of the argument in that trial within thirty days of the summons being issued.[2]
Pleadings play an important role is determining the outcome of a case by enabling the plaintiff to establish the justification for legal action and for the defendant to prove his defense accordingly in a civil suit. They cannot be changed except for the Judge’s discretion and the trial proceeds only within the pleadings made.
This is the reason the Civil Jurisprudence emphasizes that a pleading must be carefully drafted and therefore, must contain only relevant material facts with no application of law, must not include the evidence provided to further substantiate the claim and must be in a concise form.
On certain occasions it may be imperative for a party to modify such pleadings before a trial begins or even during the course of a trial in order to reshape their arguments for determination of rights in question. This can happen when some new information comes to the knowledge of Court or parties, or when a party is not adequately prepared for the concrete objections raised by other party. Order VI Rule 17 applies to such situations.
This rule was removed from CPC to ensure speedy disposal of suits following the recommendations of Justice Malimath Committee and the Law Commission, however, its need was comprehended and was consequently reinstated.[3] It is needed because the Court expects each side to present their argument in the way they wish to. Since there can be no civil action if there are no pleadings, an amendment of such a pleading has the huge impact on the rights in the matter of question of the parties.
Civil Procedure for Amending Pleadings
The history of common law suggests that the process making amendments to pleadings was very rigid such that even the changes to minor details were not entertained by the Court of Law.[4]
However with the case Cropper v. Smiththe importance of amending pleadings in conducting a fair trial was realised. It was observed in the case that purpose of Courts is to determine the parties’ rights, not to condemn them for mistakes in conduct and diligence made while framing the pleading.[5]
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”.[6]
Order VI Rule 17
Provided that no application for amendment shall be allowed acter 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 commencement of trial.
Proviso added in the 2002 Amendment
A plain reading suggests that the word “may” in the first part means it is complete discretion of the civil court to decide whether or not to allow a particular amendment in a proceeding where it deems to be just.[7]
Hence, a party cannot demand an amendment to a pleading as his right. The word “shall” such discretion by the courts must be used liberally and judicially in accordance to certain principles.[8]
For instance, if a party could not raise a particular issue in the initial pleading despite due diligence, the court has to accept an application for amending pleading in such a case so as to determine the matter in question between the parties. The proviso acts as a caveat in preventing applications aimed to delay the proceedings after the trial commences.
The process of amending a pleading starts with writing an application to the deciding Civil Court stating the purpose for such modification. The Civil Judge will grant Order VI Rule 17 if he finds that such amendments may be instrumental for determining the matter in question. After this party must ensure to file the altered pleadings by the prescribed time.
Other provisions related to amendment of pleadings are Order VI Rules 16,18, 28 and 29. Order VI Rule 16 grants the Court power to strike or amend pleadings which it deems to be scandalous, unnecessary against a fair trial or abuses the Court’s process.[9]
As per Order VI Rule 18 of the Civil Procedure Code, 1908 prescribes a limitation where a party files for an amendment of pleading in response to which the court grants it, but the party fails to amend it within 14 days or as specified, then such party shall be barred from doing so.[10]
Additionally Order VI Rule 28 requires an application to be made by a party which seeks to amend its pleadings along with a prayer and Order VI Rule 29 requires a note to be made by the legal heirs of a deceased party for a consequential amending. In cases regarding denial of amendment seeking ancillary relief like a financial relief in a divorce settlement, such a party may have the option of raising the issue in a subsequent suit.
However, when a party seeks an amendment of pleading regarding constructive res judicata, the Civil Court must reject such application.[11] This rule is not confined to regular civil proceeding but can be ordered even by a presiding judge in execution, insolvency, arbitration and matrimonial proceedings.[12]
Judicial Interpretation of Amending of Pleadings under Order VI Rule 17
The Apex Court on an instance declared that an amendment to a pleading should be permitted by a Court of Law if it does not add any disadvantage to the opposing party, despite such party seeking amendment displayed some lapse.[13] Order VI Rule 17, CPC guarantees that both parties are not at a disadvantage merely because of some minor omission on their part.
By providing a chance to amend their pleadings, Courts can adjudicate the case on its merits which are necessary for determining the matter in controversy. However, the provision does not specify such a chance to amend their pleadings may be allowed. Therefore, such guidelines have been interpreted by the Courts in various cases.
When Amending Pleadings Allowed
An application to amend pleadings is allowed when the Courts finds it necessary to determine the real question in controversy and when it does no injustice towards the opposite party. Both these conditions have to be fulfilled.[14]
In general, in a pre-trial situation an amendment to a pleading may be allowed when such application is for granting a consequential relief, for prevent more proceedings on the same case, when certain events take place after filing the pleading, when such amendment clarifies the previously filed pleadings, when parties are incorrectly described, where there is a misstatement of cause of action or any other bonafide omission that are necessary to determine the rights of the parties involved.[15]
As stated before, a pleading can be both plaint and written statements.
The Apex Court in Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Orsprovided that both are considered differently when it comes to amending. The reason was stated as
The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement[16]
Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors
When Amending Pleadings Rejected
On most circumstances an application to amend pleadings by a party is rejected by a judge because either they do not satisfy the two condition or the omission made was made recklessly or the altered pleadings changes the basic nature of the pleading initially filed.
In Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co, the Allahabad High Court contended that certain cases where altered pleadings are inconsistent or introduces a new and different case, the leave shall be refused.[17]
According to the ‘Doctrine Of Relation Back’, for securing justice to the parties, the Court has the power to instruct when an amending to a pleading does not relate back to the date of application, especially in cases regarding misdescription in suit.[18]
The proviso implies that an application seeking amendment to a pleading may not be raised after commencement of a trial unless there is due diligence.
The Supreme Court clarified as what exactly is commencement of trial in Baldev Singh v. Manohar Singhthat
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.[19]
Baldev Singh v. Manohar Singh
Law of Limitation
Date of application for seeking amendment of pleading is of utmost importance in litigation, even though the words of the provision say “at any stage of the proceedings An early case called Charan Das v. Amir Khanobserves that despite an amendment to a pleading may be necessary to determine the real question in controversy, at times law of limitation may be a valid defense to refuse it.[20]
Further, in South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors it was stated in para 11 that
“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.[21]
Paragraph 11 of the Judgement
Problems associated with Amending Pleadings in a Civil Suit
It has been observed in the history of law that when there is a more discretion granted, more will be the potential for abuse. Similarly, though Order VI Rule 17 is definitely not a right of the parties and can be granted only at the discretion of the Court, it has still been used arbitrarily with a malicious intention to delay civil proceedings so as to make the cause of action time-barred under the Limitation Act.
Litigation is such that the facts of a case may change materially between filing of a pleading and trial which may necessitate amending pleadings to reflect these changes. However, a frivolous overuse of this provision may hamper speedy disposal of cases and is against the principle of Justice delayed is Justice denied’
The 222nd Law Commission Report indirectly suggests that every effort has been made to avoid using provisions like Order VI Rule 17.[22] The opposite parties are seldom compensated for the delays caused by amending pleadings. This necessitates a re-examination because it is being used in nearly all instances to make unnecessary amendments. In some cases, like these the Civil Courts in India have refused to entertain an application seeking amendment even though they may have qualified for the same.
As India is facing the problem of huge backlog of cases, the frivolous applications to amend their pleadings is only adding burden to the that. It is estimated that around 80% of applications seeking amendment of pleadings may not be genuine and are in fact applied for the purpose for hampering civil proceedings.[23]
Apart from the problem of delayed justice and pending cases, Order VI Rule is also responsible for serving as a mechanism to infringing rights of opposing parties since in certain circumstances it may hard to identify the matter in controversy and even the malicious purpose to amend.
Although it is suggested that Courts must take a liberal approach while granting leave for amending pleadings under Order VI Rule 17, it is observed that in situation when one party is allowed to amend his pleading and when other party is disallowed to meet the former’s altered pleading it causes grave injustice to the rights of these parties.
Conclusion
Any legal action begins with the filing of a pleading, which should be done with great care by the parties. If the facts of the case change, the party must file a motion with the court to have the pleadings changed. The Court usually allows a motion to alter the pleadings, but it must keep in mind that doing so would not change the case’s original substance.
A request to amend a pleading must be allowed in court until the case begins. The court may approve such an application to avert a flood of litigation. At the same time, the court finds that granting the other party’s motion to change these pleadings will not cause a disadvantage. If it does, the court may deny the request to amend his pleadings.
Overall, it is understood that Order VI Rule 17 is instrumental in securing justice, reducing the amount of litigation and its incurred costs, and also to avoid having a lot many suits. The scope of this provision suggests that rules are subordinate to justice in Civil procedure and hence the Courts have so far been liberal in ordering for amending pleadings.
In case law, a set of grounds for granting or refusing leave has been developed. It is well knowledge that one of the Indian judiciary’s fundamental flaws is the slowness with which justice is delivered, and that changing pleadings is a significant factor. Although pleadings amendment is not a right that may be exercised at any time or in any circumstance, courts should not evaluate such petitions in a mechanical manner.
When the opposing party is entitled to reimbursement for expenditures and delays, the court should be more lenient. The 27th Law Commission Report has suggested that a statutory clarification regarding whether a civil court can allow an amendment to a plaint when such amendment results in rendering that court incompetent to try the suit is required, which has so far not been implemented.[24]
This must be rectified by ensuring that Civil Courts allow amendment to pleadings only for those made with a bonafide intention since it provides a good mechanism for eliminating errors in pleadings.
References
1 A. Mohan, Justice, Courts and Delays (2009).
2 William Searle Holdsworth et al. , A history of English law (3 ed. 1923).
Baldev Singh v. Manohar Singh, AIR 2006 SC 2832.
C.K. Takwani, Civil Procedure Code (1987).
Charan Das v. Amir Khan, AIR 1921 PC 50.
Cropper v. Smith, [1884] 29 Ch D 700.
Dr. Justice AR. Lakshmanan, The 222nd Law Commission Report on Need for Justice-dispensation through ADR (2009).
Haridas Girdhardas v. Vasadaraja Pillai, AIR 1971 SC 2336.
J L Kaput, The 27th Law Commission Report on The Code of Civil Procedure, 1908 28 (1964).
Syam Kumar (JCJ Korutla), Paper Presentation on Amendment of Pleadings, https://districts.ecourts.gov.in/sites/default/files/Paper%20Prensentation%20on%20Amendment%20of%20Pleadings%20-%20J%20Syam%20Kumar%2C%20JCJ%2C%20Korutla.pdf.
J Syam Kumar, supra note 10.
Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320.
Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.
Rajkumar Gurawara (Dead) Thr. L.Rs. v. S.K. Sarawagi And Co. Pvt. Ltd. And Anr, AIR 2008 SC 2303.
Scope and Extent of Amendment of Pleadings, https://www.lawctopus.com/academike/scope-and-extent-of-amendment-of-pleadings/ (last visited Oct 10, 2021).
South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, (2008) 14 SCC 632.
The Code of Civil Procedure, 1908, Order VI Rule 1.
The Code of Civil Procedure, 1908, Order VI Rule 16.
The Code of Civil Procedure, 1908, Order VI Rule 17.
The Code of Civil Procedure, 1908, Order VI Rule 18.
The Code of Civil Procedure, 1908, Order VIII Rule 1.
The Code of Civil Procedure (Amendment) Act, 2002, No. 22.
Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors., AIR 2006 SC 1663.
[1] The Code of Civil Procedure, 1908, Order VI Rule 1.
[2] The Code of Civil Procedure, 1908, Order VIII Rule 1.
[3] The Code of Civil Procedure (Amendment) Act, 2002, No. 22.
[4] 2 William Searle Holdsworth et al. , A history of English law (3 ed. 1923).
[5] Cropper v. Smith, [1884] 29 Ch D 700.
[6] The Code of Civil Procedure, 1908, Order VI Rule 17.
[7] Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.
[8] Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., (2002) 2 SCC 445.
[9] The Code of Civil Procedure, 1908, Order VI Rule 16.
[10] The Code of Civil Procedure, 1908, Order VI Rule 18.
[11] Scope and Extent of Amendment of Pleadings, https://www.lawctopus.com/academike/scope-and-extent-of-amendment-of-pleadings/ (last visited Oct 10, 2021).
[12] J Syam Kumar (JCJ Korutla), Paper Presentation on Amendment of Pleadings, https://districts.ecourts.gov.in/sites/default/files/Paper%20Prensentation%20on%20Amendment%20of%20Pleadings%20-%20J%20Syam%20Kumar%2C%20JCJ%2C%20Korutla.pdf.
[13] Haridas Girdhardas v. Vasadaraja Pillai, AIR 1971 SC 2336.
[14] C.K. Takwani, Civil Procedure Code (1987).
[15] Rajkumar Gurawara (Dead) Thr. L.Rs. v. S.K. Sarawagi And Co. Pvt. Ltd. And Anr, AIR 2008 SC 2303.
[16] Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors., AIR 2006 SC 1663.
[17] Modi Spg. & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1976) 4 SCC 320.
[18] J Syam Kumar, supra note 10.
[19] Baldev Singh v. Manohar Singh, AIR 2006 SC 2832.
[20] Charan Das v. Amir Khan, AIR 1921 PC 50.
[21] South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, (2008) 14 SCC 632.
[22] Dr. Justice AR. Lakshmanan, The 222nd Law Commission Report on Need for Justice-dispensation through ADR (2009).
[23] 1 A. Mohan, Justice, Courts and Delays (2009).
[24] J L Kaput, The 27th Law Commission Report on The Code of Civil Procedure, 1908 28 (1964).
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