Construction of Pleadings and Amendment Perspectives
Construction of pleadings
- It is very much settled that pleadings are inexactly drafted in courts and the courts ought not to examine the pleadings with such fastidious consideration to bring about veritable cases being vanquished on minor grounds.
- It is very much settled that without arguing proof assuming any, delivered by the gatherings can’t be viewed as it is additionally similarly settled that no gathering ought to be allowed to go past its arguing and that all are important and material realities ought to be argued by the gathering on the side of the case, the pleadings.
- However, ought to get a liberal development; no pompous methodology ought to be embraced to overcome equity on hair-parting details.
- It isn’t alluring to put unnecessary accentuation on the structure. All things being equal, the substance of the arguing ought to be thought of.
- In Ram Sarup v. Bishnu Narain Inter College AIR 1987 SC 1242; it was stated “It is well-settled that in the absence of pleading, evidence, if any, produced by the parries cannot be considered. It is also equally settled that no party h be permitted to travel beyond its pleading and that the necessary and material facts should be pleaded by the party m support o t e case set up by it. The object and purpose of pleading are to enable the adversary party to know the case it has to meet. To have a fair trial, the party must settle the essential material facts so that the other party may not be taken by surprise. The pleadings, however, should receive a liberal construction no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. It is not desirable to place undue emphasis on form, instead, the substance of the pleading should be considered.”
Amendment of pleadings
Rule 17 provides for an amendment of pleadings.
- By the Court permission at any stage of the suit.
- Can be availed by any of the party to the suit.
- For purpose of determination of the question in the suit.
- Should not be allowed after the trial has commenced, unless the Court concludes that despite due diligence.
- The object of the Rule is to allow all amendments that may be necessary for determining the real question in controversy between the parties
- The purpose of doing justice between the parties and not for punishing them and they are empowered to grant amendments of pleadings in the larger interest of doing complete justice to the parties.
- Promoting the ends of justice and not defeating them.
When amendments of pleadings allowed?
- Necessary conditions to be satisfied before granting leave for amendment of pleadings
- Should not lead to injustice to another party.
- Found necessary for determining the real question of controversy between parties.
- When nature of the case will be improved by allowing the application for amendment of appeal
- When a new cause of action raised
- When a law of limitation to Amendments of Pleadings gets defeats
- When filed to avoid multiplicity of suits.
- When plaint or written statements wrongfully described
- When the plaintiff omits to add some properties to the plaint
When amendment of pleadings refused?
- When not necessary for determining the real question of controversy between parties
- When it leads to the introduction of a totally new case
- When the plaintiff or defendant is negligent
- When proposed alteration or modification is unjust
- When it violates the legal rights or cause injustice to the other party.
- When it leads to needless complications in the case
- When there has been excessive delay by the parties in filing the suit.
- When it changes the nature of the disputes
- Pleadings if it is made with mala fide intention.
- Where several opportunities are given to parties to apply for amendment of pleadings but they failed to make an application
Is Rule 17 nature whether exhaustive?
- The provisions of Rule 17 of Order 6 are not exhaustive of the power of a court in a matter of the amendment of pleadings.
- The power of amendment is inherent to court and do not all revert.
Merits which required not to be considered
- While considering whether an application for amendment should or should be allowed, the court should not go into correctness or falsity of the case in the amendment.
Who can apply?
- Plaintiff and the defendant though the written statement
- In case of more than one defendant and plaintiff, one or more of them can make an application
Notice to the opposite party
- When an application for amendment is made by a party to a suit an opportunity’ should be g1ven to the other side to file an objection.
- An order granting an amendment without hearing the opposite party is illegal.
- If the amendment is purely formal or technical in nature, it is immaterial to issue notice.
- Where the plaint is amended, a notice of amended plaint must be served on the defendant.
Principles being followed
- all amendments should be allowed which are necessary for the determination of the real controversies in the suit
- the proposed amendment should not alter and be a substitute for the cause of action based on which the original lies was raised
- inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated using an amendment
- proposed amendments should not cause prejudice to the other side which cannot be compensated using costs amendment of a claim or relief barred by time should not be allowed;
- no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of a lapse of time
- no party should suffer on account of technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
- the delay in filing petitions for amendments of pleadings should be properly compensated for by costs
- error or mistake which if not fraudulent should not be made a ground for rejecting the application for amendments of pleadings;
- the above principles are illustrative and not exhaustive
Amendment after the commencement of trial: Proviso of Rule 17, as inserted by the Code of Civil Procedure
- (Amendment) Act, 2002 restricts and curtails the power of the court to allow amendment in pleadings by enacting that no application for amendment should be allowed after the trial has commenced
- unless the court concludes that despite due diligence
- It has been held that the proviso to Rule 17 (as introduced in 2002) requires the court to apply due diligence test.
- The court must be satisfied that despite due diligence he could not discover the ground pleaded in the amendment.
- The term “due diligence” is specifically used in the Code to provide a test for determining whether to exercise the discretion In situations of requested amendment after the commencement of trial
The doctrine of RELATION BACK
Normally, an amendment relates back to the pleading, but the doctrine is not absolute, unqualified, or of universal application. Inappropriate cases, the court may order that the amendment would take effect from the date an application was made or the amendment was allowed and not from the date when the plaint or written statement was presented.
So the period of limitation is prescribed either in the Code of Civil Procedure or in the Limitation Act for making an application for amendment.
- On the contrary, Rule 17 permits a party to alter or amend his pleading at any stage of the proceedings.
- But it is well-settled that ordinarily, an amendment of pleading should not be allowed if the effect of such amendment is to deprive a party of a right which he has acquired by the law of limitation.
- The above principle also must be read in the light of proviso to Rule 17 inserted by the Amendment Act of 2002. 195
Application of Res Judicata
The strict rule of Res Judicata does not apply to the amendment of pleadings.
- As a general rule, once an application for amendment is rejected on merits, a second application on the same averments is not maintainable.
- If there is a change of circumstances, an application for amendment may be filed provided no prejudice is caused to the other side.
- A fresh application would also like it if the earlier one is withdrawn or dismissed for default or not decided on merits.
Application of such terms
- The rule confers an unfettered discretion on the court as to the terms to be imposed while granting an amendment of pleadings.
- the amendment will be allowed on payment of costs to the opposite party by the Party amending his pleadings.
- The costs awarded, should be reasonable and not exemplary.
- There has been a divergence of judicial opinion whether a party who has accepted costs under an order of amendment can subsequently challenge the validity of the order of amendment,
- An order allowing or disallowing an application for amendment is neither a “decree” as defined in Section 2(2) nor an order appealable under Section 104 read with Order 43 of the Code.
- No appeal, therefore, lies against such an order. An order allowing or disallowing application
- maybe attacked in an appeal from a decree.
- An order granting or refusing amendment is a “case decided” and is subject to the revision jurisdiction of the High Court.
- Since it is at the discretion of the court to allow an amendment, while exercising powers under Section 115 of the Code, normally, the High Court will not interfere with the exercise of discretion by the trial court.
- Extremely liberal in granting the prayer of amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revision court ought not to lightly interfere with a discretion exercised ill allowing amendment in absence of cogent reasons or compelling circumstances.
Though, it is open to an aggrieved party to challenge an order passed by the trial court allowing or rejecting an application for amendment of pleading by filing a writ petition under Article 226 or 227 of the Constitution of India, normally, a High Court will not exercise extraordinary or supervisory jurisdiction to interfere with the order of the trial court unless it has caused serious prejudice to the applicant or has resulted in a miscarriage of justice.
- Ordinarily, the Supreme Court will also not exercise its power under Article 136 of the Constitution by interfering with the order passed by the High Court on an application for amendment.
Failure to amend and further application of Rule 18
- If a party, who has obtained an order for leave to amend, does not amend accordingly within the time specified for that purpose in the order or if no time is specified then, within 14 days from the date of the order
- No permission to amend after the expiry of the specified time or 14 days unless the time is extended by the court
- It does not, however, result in dismissal of the suit. Again, the court has the discretion to extend the time even after the expiry of the period originally fixed.
- In an appropriate case, the court may allow the amendment to be carried out by the party despite his default on the payment of further costs.
- We cannot be oblivious of facts of life, namely, the parties in courts are mostly ignorant and illiterate—unversed in law.
- Sometimes their counsels are also inexperienced and not properly equipped and the court should endeavour to ascertain the truth to do justice to the parties.
Amendments of the pleadings are done under Rule 17. Fundamental conditions to be fulfilled before conceding leave for amendment of pleadings. At the point when the idea of the case will be improved by permitting an application for amendment of allure. At the point when the law of constraint to Amendments of Pleadings gets routs. Where a few open doors are given to gatherings to apply for amendment of pleadings yet they neglected to make an application. The intensity of the amendment is natural to court and don’t all return. While thinking about whether an application for amendment ought to or ought to be permitted, the court ought not to go into rightness or lie of the case in the amendment. A request conceding an amendment without hearing the contrary party is illicit. (Amendment) Act, 2002 confines and reduces the intensity of the court to permit amendment in pleadings by authorizing that no application for amendment ought to be permitted after the preliminary has started. The exacting principle of Res Judicata doesn’t have any significant bearing on the amendment of pleadings. Amendment will be permitted on an installment of expenses to the contrary party by the Party altering his pleadings. Since it is at the circumspection of the court to permit an amendment, while practising powers under Section 115 of the Code, ordinarily, the High Court won’t meddle with the activity of prudence by the preliminary court.
Also Read: Outline of Fundamental Rules of Pleading