Power to amend pleadings under Order VI, Rule 17 of Code of Civil Procedure, 1908: an in-depth analysis

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Provision of Law:

Order VI, Rule 17 of the Code of Civil Procedure, 1908 reads as under:

“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.

 

Preface:

In the matter of, Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors, (2006) 4 SCC 385, it was held that, Order 6, Rule 17 consists of two parts. Whereas the first part of the provision is discretionary (that is, ‘may’) and leaves it to the court to order amendment of pleading. The second part is imperative (that is, ‘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.

 

Crucial Aspects Concerning Order VI, Rule 17 of the Code of Civil Procedure, 1908:

(A) Object and Scope of Order VI, Rule 17 of the Code of Civil Procedure, 1908:

(i) Order VI, Rule 17 of the Code of Civil Procedure, 1908 deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. Subsequently, it was again restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. In the matter of Salem Advocate Bar Association, T.N. v. Union of India, (2005) 6 SCC 344, the constitutionality of the Amendment Act 22 of 2002 was upheld by the Hon’ble Supreme Court of India.

(ii) In a suit when the trial commences?

(a) Order XVIII of the Code of Civil Procedure, 1908 deals with “Hearing of the Suit and Examination of Witnesses”. Issues are framed under Order XIV of the Code of Civil Procedure, 1908.

(b) At the first hearing of the suit, the Court after reading the plaint and examining the written statement frames issues under Order XIV, Rule 1 of the Code of Civil Procedure, 1908.

(c) Order XV of the Code of Civil Procedure, 1908 deals with “Disposal of the Suit at the First Hearing”, when it appears that the parties are not at issue on any question of law or a fact.

(d) After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of the suit commences.

(e) In the matter of: Vidyabai & Ors v. Padmalatha & Anr, (2009) 2 SCC 409, it was held as follows:

(I) The date on which the issues are framed is the date of first hearing.

(II) Filing of an affidavit in lieu of examination-in-chief of the witnesses amounts to commencement of proceedings.

(f) In the matter of: Ajit Narsinha Talekar v. Nirmala Wamanrao Kekade & Ors, (2010) 5 Mah LJ 481, following the dictum in Vidyabai (Supra) it was held that:

“…‘framing of issues is the first date of hearing’ but that does not mean that on framing of issues the trial has commenced. Even after issues are framed, suits often are adjourned several times because of applications for adjournment made by either of the parties. Sometimes the matter is not even called out because the Court remains busy in dealing with older matters which are on board. Though the framing of issues is the first date of hearing, the actual hearing commences only when a party files an affidavit of himself or his first witness in lieu of examination in chief. That is the commencement of the trial…

(iii) The proviso to Rule 17 of Order VI to some extent curtails absolute discretion to allow amendment at any stage. If application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier.

(iv) The object for adding proviso by virtue of Amendment Act 22 of 2002 to Rule 17 of Order VI was to curtail delay and expedite adjudication of the cases. In the matter of: Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117, taking note of the object and purpose of Amendment Act 22 of 2002, the Hon’ble Supreme Court of India held that, the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and to ensure that one party has sufficient knowledge of the case of the other party. Further, in the matter of: Mohinder Kumar Mehra v. Roop Rani Mehra & Ors, Civil Appeal No. 19977 of 2017 (Supreme Court of India), it was held that, the proviso to Order 6, Rule 17 prohibits the entertainment of an amendment application after the commencement of the trial with the sole object that once the parties proceed with the leading of evidence then ordinarily no new pleading should be permitted to be introduced.

(v) In the matter of: Mount Mary Enterprises v. Jivratna Medi Treat (P) Ltd, (2015) 4 SCC 182, it was held that:

“…as per the provisions of Order 6, Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant…

(vi) In the matter of: Lakha Ram Sharma v. Balar Marketing (P) Ltd, (2008) 17 SCC 671, it was held that:

…It is settled law that while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that Court is no ground for refusing that amendment…

(vii) In the matter of: B.K. Narayana Pillai v. Parameswaran Pillai & Anr, (2000) 1 SCC 712, it was held that:

…The purpose and object of Order 6, Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice…It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties…

(viii) In the matter of: Mahila Ramkali Devi & Ors v. Nandram, (2015) 13 SCC 132, it was held that:

…It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost…

(ix) In the guise of amendment of pleading: (1) one distinct cause of action cannot be substituted for another, and, (2) the subject matter of the original suit cannot be changed or altered.

(x) In the matter of: Mahesh Singh Jamwal v. Sheikh Mohd. Aslam (High Court of Jammu & Kashmir, Civil Revision No. 18/2018 & M.P. No. 1/2018, Date of Decision: 05.06.2018) it was held that, even if there are some admissions made by the defendant in the written statement, it will still be open to the defendant to explain the same by filing an application for amendment of the written statement though whole hog withdrawal of admissions may not be permissible.

 

(B) Bar of Limitation and Amendment of Pleadings:

(i) In the matter of: L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357, it was held that:

…It is no doubt true that courts would, 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, if that is required in the interests of justice…

Further, in the matter of: South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors, (2008) 14 SCC 632, it was held that:

…one of the cardinal principles of law in allowing or rejecting an application for amendment of the pleading is that the courts generally as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it if that is required in the interest of justice…”  

(ii) But in the matter of: Pankaja & Anr v. Yellappa (D) by LRs & Ors, AIR 2004 SC 4102, it was held 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 to allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case…”

(iii) However, in the matter of: Ragu Thilak D. John v. S. Rayappan, (2001) 2 SCC 472, the Hon’ble Supreme Court of India observed that, where the question as to whether an amendment to the pleading is barred by limitation or not, is a disputed question of fact, then in such cases, the issue of limitation can be made an issue in the suit itself, and resultantly the amendment application can be disposed of as allowed.

(iv) Lastly, in the matter of: Vishwambhar v. Laxminarayan, (2001) 6 SCC 163, it was held that, an amendment to the pleading though properly made cannot relate back to the date of filing of the suit, but is to relate to the date of filing of the amendment application.

 

(C) Whether a court which does not have pecuniary jurisdiction to entertain the suit, such court can entertain an application to amend the plaint to bring the suit plaint within the pecuniary jurisdiction of the court?

(i) In the matter of Subhashini Malik v. S.K. Gandhi & Ors, (2016) 233 DLT 83, the Hon’ble Full Bench of the High Court of Delhi took note of the conflicting opinions rendered in the judgments, namely, Mahesh Gupta v. Ranjit Singh, AIR 2010 Del 4 (DB) and Kamal Sharma v. Blue Coast Infrastructure Development (P) Ltd., 2016 SCC Online Delhi 2261, and came to the conclusion that the decision rendered in the matter of Kamal Sharma (Supra) elucidates the correct position of law.

(ii) In the matter of Mahesh Gupta (Supra) it was held that, once it is established that the court in seisin of the matter does not have pecuniary jurisdiction to try the matter, it cannot entertain the application for amendment of pleading and pass orders allowing the application for amendment of pleading thereby bringing the suit plaint within the pecuniary jurisdiction of the court.

(iii) However, in the matter of Kamal Sharma (Supra) it was held that, merely because the amendment of pleading may take the suit out of the jurisdiction of the court in seisin of the matter is no ground for refusing the amendment of pleading.

(iv) Amendment of a plaint normally, unless otherwise directed, relates back to the date of original filing of the plaint. Therefore, when the pecuniary clause in the suit plaint is allowed to be amended, then it would relate back to the date of original filing of the plaint, hence, the decision rendered in Mahesh Gupta (Supra) is not the correct proposition of law.

(v) The court in seisin of the matter can decide the application for amendment even when the amendment, if allowed, would take the suit or proceedings outside the scope of the pecuniary jurisdiction of the court in seisin of the matter.

(vi) The Hon’ble Full Bench of the High Court of Delhi to lend credence to its view rendered in Subhashini Malik (Supra) drew strength from Para 4 of Lakha Ram Sharma v. Balar Marketing (P) Ltd., (2008) 17 SCC 671, and, Para 7 and Para 9 of Mount Mary Enterprises v. Jivratna Medi Treat (P) Ltd., (2015) 4 SCC 182.

Para 4 of Lakha Ram Sharma (Supra) read as under:

“…4. It is settled law that while considering whether the amendment is to be granted or not, the court does not go into the merits of the matter and decide whether or not the claim made therein is bona fide or not. That is a question which can only be decided at the trial of the suit. It is also settled law that merely because an amendment may take the suit out of the jurisdiction of that court is no ground for refusing that amendment. We, therefore, do not find any justifiable reason on which the High Court has refused this amendment. Accordingly, the impugned order is set aside and that of the trial court is restored. We, however, clarify that as the appellant has now raised the claim from Rs. 1 lakh to Rs. 10 lakhs, the trial court will determine whether or not court fees are correctly paid…

Further, Para 7 and Para 9 of Mount Mary Enterprises (Supra) read as under:

…7. In our opinion, as per the provisions of Order 6 Rule 17 of the Civil Procedure Code, the amendment application should be normally granted unless by virtue of the amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant case, the nature of the suit was not to be changed by virtue of granting the amendment application because the suit was for specific performance and initially the property had been valued at Rs. 13,50,000/- but as the market value of the property was actually Rs. 1,20,00,000/-, the appellant-plaintiff had submitted an application for amendment so as to give the correct value of the suit property in the plaint…

…9. The main reason assigned by the trial court for rejection of the amendment application was that upon enhancement of the valuation of the suit property, the suit was to be transferred to the High Court on its original side. In our view, that is not a reason for which the amendment application should have been rejected…

 

(D) Applicability of Order 6, Rule 17 of the Code of Civil Procedure, 1908 to a complaint filed before a Consumer Forum:

(a) Section 13 (4) of the Consumer Protection Act, 1986 expressly confers upon a District Forum, the following powers vested in a Civil Court under the Code of Civil Procedure, 1908: (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness, and (vi) any other matter which may be prescribed. Further, Section 22 (1) of the Consumer Protection Act, 1986 states that the provisions of Section 13 concerning disposal of the complaint by the District Forum and the rules there under, shall, with such modifications as may be considered necessary by the National Commission (NCDRC) be applicable for disposal of disputes by the National Commission (NCDRC).

(b) In the matter of: Manimalan v. K. Subrayan (Civil Revision Petition Nos. 1695-2003 decided on: 19.04.2004), the Hon’ble Madras High Court held that there was no impediment in the District Forum entertaining an application for amendment of pleadings, even though there is no specific provision dealing with amendment of pleadings in the Consumer Protection Act, 1986.

(c) In the matter of: Natasha Verma v. EMAAR MGF Land Ltd., (2015) CJ 384 (NC), the Hon’ble National Commission (NCDRC) on the aspect of applicability of Order 6, Rule 17 of Code of Civil Procedure, 1908 as regards the consumer complaints held as follows:

“…the emphasis of the learned Counsel for the respondent on the absence of extension of the provisions contained in Order 6, Rule 17 of the Code of Civil Procedure to this Commission is misplaced, since the power to allow amendment of pleadings in appropriate cases is inherent in the functioning of a Tribunal having the trappings of a Civil Court. Denial of such basic procedural power to statutory Tribunal having the trappings of a Court, in our view, will render its functioning extremely difficult, besides resulting in multiplicity of proceedings and causing serious injustice without any advantage to any party. It is settled legal principle that inherent power vested in an authority cannot be exercised contrary to the statutory provision, but, in an area which is not occupied by a statutory provision, a judicial Tribunal such as a Consumer Forum has an implicit power to regulate its day-to-day procedure, which would include allowing  the amendment of pleadings in appropriate cases. Though the provisions of Order 6, Rule 17 of Code of Civil Procedure have not been expressly made applicable to this Commission, it was noted by Madras High Court (Manimalan v. K. Subrayan) that there is no bar to exercise of such power. A Consumer Forum therefore would be entitled to allow amendment of pleadings on the principles analogous to those contained in Order 6, Rule 17 of Code of Civil Procedure and the power to regulate its procedure in the field which is not occupied by a statutory provision…

 

(E) Inconsistent Pleas in the Written Statement are Permissible:

(i) It is settled law that inconsistent pleas can be raised by a defendant in his written statement although the same may not be permissible in case of a plaint.

(ii) In the matter of: M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. M/s. Ladha Ram Co., (1976) 4 SCC 320, the Hon’ble Supreme Court of India while clarifying the position with regard to law of amendment of pleadings clearly enunciated that inconsistent or alternative pleas can be made in the written statement.

Excursus:

(i) By virtue of amendment of pleadings, a party to a lis cannot be allowed to withdraw the admissions made by it in the pleadings filed by it before the court. Nonetheless, a party is always free to explain and/or clarify the admissions made by it in the pleadings filed by it before the court by preferring an amendment application under Order VI, Rule 17 of the CPC, 1908.

(ii) A relief which is barred by limitation cannot be allowed to be introduced by the plaintiff by amending the suit plaint.

(iii) The amendment proposed should not alter and/or be a substitute for the cause of action on the basis of which the original lis was filed.

(iv) All the amendments should be allowed which are necessary for determination of the real controversies in the suit.

About Shivam Goel

Shivam GoelShivam Goel; B.Com (H), LL.B. (Delhi University), LL.M. (NUJS, Kolkata); Author of: Corporate Manslaughter and Corporate Homicide: Scope for a New Legislation in India, Partridge India, 2015; Associate, S.G. & Co. (New Delhi); advocate.shivamgoel@gmail.com

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