March 9, 2019 | Author: Harshit Anand | Category: Pleading, Lawsuit, Supreme Courts, Legal Procedure, Virtue
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amendment of pleadings...


University Institute Of Legal Studies Panjab University


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Dr& 'aran (a)anda* (a)and a*

+ars,it Anand


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Acknowledgement I wish to convey my greatest appreciation to Dr. KARAN JAWANDA, a professional professor and great mentor, who challenged and organized my thoughts and helped convert them to the written words. I would also like to thank UNIVERSITY INSTITUTE OF LEGAL STUDIES,









encouragement that I submit my project report. I am indebted to my frie!" and other family members for providing kindness and help in making this project.




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Introduction "#at are $leading%& Inter$retation O+ect o- /LE Nature and Sco$e Leae to amend w#en granted Introducing new and di3erent ca%e Inter$reting at an5 %tage Pre trial and Po%t trial amendment 7octrine o- elation Back Amendment to written %tatement Amendment +a%ed on %u+%e8uent eent% E3ect o- !44! Amendment Conclu%ion Bi+liogra$#5

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INTO7/CTION  The ode of ivil !rocedure, 1"#$ prescribes the provisions through which the amendments to pleadings can be introduced during the trial process. %ince the bygone era, the belief of almost all the legal systems was that the courts must have unrestricted and unguided power to amend the pleadings so as to further the cause of justice without causing an iota of injustice to the adversary party. &ule 1' of (rder )I provides for the powers to the courts in India to allow the amendments. *dding to this, the !rivy ouncil, the %upreme ourt and other ourts in India have been implementing this +

practice since the ages. In 1""#s, a lot of concerns were raised as to the etent of usage of this facility in almost all the cases litigated till then. )arious reports found that no stone has been unturned not to utilize this provision and hence there is a need for a re-look1. y the ode of ivil !rocedure /*mendment0 *ct, 1""", this provision relating to amendment of pleadings was deleted. ustice alimath ommittee recommended that the rule 1' of this order be deleted to avoid delay and to ensure speedy disposal of cases2. This amendment act received the assent of the !resident but was not brought into force. 3ue to a lot of uproar in the ountry and opposition from lawyers, the government reconsidered the 4uestion and revived the rule by the net amendment act in 2##2 with a proviso. 5owever, it was reintroduced by the ode of ivil !rocedure /*mendment0 *ct, 2##2, but with a proviso and was brought into e6ect from uly 1, 2##2. In this backdrop, it# is important for us to understand the discourse by which this law on amendment of pleadings has been developing either by way of the legislative enactments or by way of judicial activism.

"#at are Pleading%& Order 9I deals with pleadings in general. &ule 1 of that (rder de7nes pleadings as a plaint or written statement. !laint is used to notify the opposite party of the case that is 7led against him or her. 8raming of pleadings is the most fundamental and must be dealt with a lot of caution.  The reason is that, once the pleadings are framed, no one has the power to amend them epect for the judge on his discretion. In the absence of the pleadings, if any evidence is produced by the parties, that cannot be considered. It is a settled law that no party must be allowed to venture 1 http9::lawcommissiono7ndia.nic.in:reports:report222.pdf. 2http9::www.prsindia.org:uploads:media:3ivision;2#5igh;2#ourts:%elect ;2#ommittee;2#&eport.pdf  <

beyond the pleadings. There is a lot of litigation in this area as to the scope and etent of the liberty to amend the pleadings. In the ommon law, the pleading practice was a mechanical and rigid eercise such that misspellings of minor details were not allowed. + The object and purpose of the pleadings is to make the opposite party ac4uaint with the case he has to face in the due course of time. The whole object of the pleadings is to bring parties to the de7nite issues, reduce costs and to ensure the speedy delivery of justice.  This also results in the conduct of the fair and =awless trial and the pleadings must contain all the essential material facts so that the adversary party is not taken away by surprise. The parties are normally epected to con7ne to the pleadings. (ne of the most important objects of allowing the amendment to pleadings is to prevent multiplicity of suits. If the amendment is sought seeking an ancillary relief is not allowed, then the party might have a remedy to raise the same in the subse4uent case. The amendments relating to constructive re% udicata must not be allowed by the courts.

Inter$retation Order 9I, ule 10  of the ode of ivil !rocedure provides for the >Amendment o- $leading%.? The provision enumerates that a court may allow any party at any stage to amend the proceedings if it considers that to be just. *ll such amendments which are necessary for the purpose of determining the real 4uestions in controversy between the parties shall be made by the court. * proviso has been added to this provision through the ! /*mendment0 *ct, 1""", which intends to limit the powers of the [email protected] discretion of amendment of pleadings. It says that no application for the amendment shall be allowed by the court after the commencement of the trial, unless the court is of the opinion that notwithstanding the [email protected] due diligence, they could not have raised the matter before the commencement of the trial. ule 1* of the same (rder provides for the striking out of the pleadings.  This was also subjected to the amendment in the year 1"'A. It provides that the ourt may at any stage of the proceedings order to amend or remove any part of the pleading which is unnecessary, scandalous, frivolous or + 5oldsworth, T5B 5I%T(&C (8 T5B BDEFI%5 F*G +#H /1"2+0. H

veatious etc. The ourt may also modify at any stage any matter that delays the fair trial or abuses the process of the court.  The rules of interpretation to be followed in interpreting this provision are very simple. The provision can be divided into two parts. The 7rst part is discretionary />may?0 and gives wide and unfettered discretion to decide on case-to case basis whenever it appears to be just. The court may or may not allow the amendment to the proceeding for determining the real 4uestions of  controversy. The approach of the ourt should be liberal and not hypothetical%hall?0 and orders the court to accept all the applications necessary for the purpose of determining the real issue between the parties if it 7nds that the parties could not have raised the issue in spite of the due diligence before the commencement of the trial. 5owever, such discretion must be eercised by applying the judicial mind according to the well-established principles.

O+ect o- t#e rule  The primary object of the rule is that the ourts should try the case based on the merits and should subse4uently allow the amendments which are must for assessing the real controversy between the parties. This ensures that the injustice is not caused to the either side based on minute omissions by the parties. The %upreme ourt in the case of  :arida% ;ird#arda% %. 9a%adaraa Pillai ' held that >however negligent or careless the 7rst omission may have been, and however late the proposed amendment, the amendment should be allowed if it does not cause any injustice to the other side.?  * suit must be instituted before the remedy under this rule is availed. The %upreme ourt through umar %. am >i%#an!(, the 4uestion was whether to permit the amendment relating to the mis-description of the suit. The claim was that the description given about the rent note was wrong and it was repeated in the plaint and this was after the commencement of the trial. 5ere, the %upreme ourt stated that notwithstanding that the application to amendment was proposed after the commencement, the proposed amendment is needed for bringing into the fore the real controversial between the parties. The adras 5igh ourt in the case of  :i S#eet Indu%trie% %. Litelon Ltd ! said that the proviso to the rule is applicable only to the pleadings instituted with e6ect from #1-#'-2##2 and not in prior to this.  The %upreme ourt in the case of La?mida% %. Nana+ai !' eplained the law on the amendment of the pleadings. It said that the court can refuse to entertain the application for amendment if it feels that it restraints the other [email protected] legal rights which are accrued to him by lapse of time. ut, it said that this rule could be applied only when fresh allegations are added by the process of amendments and not in the cases where amendments are sought to clarify an eisting pleading where it does not add or subtract any substantial material relevant to the proceeding. 5ence, the law before the 1""" amendment was that the court has unlimited power of allowing the amendments to be made in the cases where it merely clari7es the original pleading. 5ence, in a case of mis-description of plainti6, the plaint can be amended at any time for the purpose of rectifying it and the 4uestion of limitation does not arise in that case.

Amendment to written %tatement%  The principles that apply to amendments of pleadings also apply to the written statements. The %upreme ourt in /%#a Bala%a#ed Swami %. >iran A$$a%o Swami!*.eplained the law relating to the applicability of law 2+ /2##H0 1+ % $". 2< *I& 2##' ad '$. 2H *I& 1"A< % 1$. 2A *I& 2##' % 1AA+. 1+

relating to amendment of pleadings to the amendments of written statements. It said that the prayer relating to the amendment to the plaint and that of written statements stand on di6erent levels. The general principle is that amendments should not be allowed which substitute a cause of action in the nature of the claim. The %upreme ourt said that there is no counterpart in the principles relating to the amendment of the written statement. 5ence, the ourt said that addition or substitution of written statement would not be objectionable whereas adding or subtracting the cause of actions by the plaint may be objectionable. 5ence the *pe ourt in this case held that the courts should be more liberal in allowing the applications for the amendment of the written statements that in the case of plaints as 4uestion of prejudice would be more in the former case.

Amendment% +a%ed on %u+%e8uent eent%  The 4uestion which always perturbed the judicial minds is whether amendments can be allowed on the basis of events which happened subse4uent to the suit. The law is well settled that though the rights of the parties have to be decided on the date of the suit, the courts can in the interest of the justice take notice of the subse4uent events and make appropriate amendments. The *ndhra !radesh and adras 5igh ourts have said that applications for amendments which seek to oust the jurisdiction of the courts must not be allowed.

E3ect o- !44! Amendment (n the recommendation of the law commission, the ! was amended in 2##2, limiting the power of courts in granting the amendments after the commencement of the trial. Gith the intention of shortening the litigation and for the speedy disposal of the cases, &KFB 1' was omitted by the 1""" amendment. The legislators felt that this rule was in the statute book since ages and there is no single case where this rule was not used. The provision was restored back in 2##2 in view of the protests, agitations and strikes all over the country, but with a caveat in the form of the proviso. The new proviso provides that no application for amendment must be processed by the court after the commencement of the trial, unless the courts come to the 1<

conclusion that in spite of the due-diligence of the parties, they could not have raised before the commencement. ut, the issue of deciding whether the parties in spite of due diligence could have raised the prayer or not depends on the facts and circumstances of the each case. This amendment is trying to limit the powers of the court to some etent, nonetheless, the courts have unfettered powers in the cases of the unforeseen situations.  This provision has been already subjected to the judicial scrutiny by the courts in India. The *ndhra !radesh 5igh ourt in the case of E. Pra%ad ;oud %. B. Lak%#amana ;oud!0 held that the proviso is not a complete bar nor shuts out entertainment of any later application if the court 7nds that a party in spite of due diligence could not raise the plea. The %upreme ourt in the case of Salem Adocate Bar A%%ociation, Tamil Nadu %. /nion o- India!2 upheld the validity of the provision and said that its object is to prevent frivolous applications 7led to delay the process of trial. The %upreme ourt in Balde Sing# case held that the term > commencement of the trial ? must be used in limited sense as meaning 7nal hearing of the suit, eamination of the witnesses, 7ling of the documents and addressing the documents. In Sam$at# >umar %. A55akannu!6 , the plainti6 7led a suit against the defendant for prohibitory injunction. ut, before the commencement of the trial, he was dispossessed of the property and after eleven years, he moved an application seeking amendment of the plaint claiming possession. The defendant claimed that this would change the nature of the suit and thathe had the perfect title by adverse possession and this particular claim is barred by law of limitation. The trial court and the high court rejected the application of the plaint but the %upreme ourt allowed it saying that9 >Ge fail to understand, if it is permissible for the plainti6 to 7le an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.?  The court also placated the defendant by saying that >in the interest of the defendant, the new reliefs sought for are considered by the court to be

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deemed to be made on the date on which the application seeking amendment was 7led? In another interesting case Naga$$a %. ;urda5al Sing# (4, the facts are that plainti6 su6ered injuries in an accident and 7led an insurance claim of one lakh. ut, in the *pe ourt he enhanced his claimed to 7ve lakh. The %upreme ourt granted him relief stating that when there is suLcient evidence on record justifying the enhanced compensation for medical treatment, the same should be granted. In this type of cases, the court said that there is no 4uestion of introducing a new or inconsistent cause of action. 5ence, the courts, in case they want to do justice to the parties, do not consider themselves to be restricted by any legislation.

CONCL/SION  The law of amendment of pleadings is settled by the %upreme ourt. The ourts started with the rule of law that there must not be any restriction on the powers of the courts be it law of limitation or after the commencement of  the proceeding, for securing the ends of justice and to minimize the harm caused to the opposite party. The ourts have been very active in this area +# *I& 2##+ % A'
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