Amendment of pleadings is basically for the purpose of bringing about final adjudication in a suit and to avoid multiplicity of proceedings. The law can be a change of substantive law either prospective or retrospective. If it is a prospective change then it normally not effect cause of action and matter in issue in the pending suit and therefore, amendment is not needed. Whereas it is a retrospective change, amendment might be needed and shall be allowed. If it is a change of procedural law then normally pleadings will not be allowed to be amended but the court shall itself take note of the change of procedural law. (See:- Omprakash Gupta Vs. Ranbir B. Goyal: AIR 2002 SC 665) .
It is essential for the judicial officers and the advocates to understand the discourse by which the law on amendment of pleadings has been developing either by way of the enactments or by way of judicial pronouncements. It is my strenuous attempt to present some valuable rulings of Superior Courts, a fortiori, the decisions of the Hon’ble Supreme Court of India, in this article on the subject ’Amendment of pleadings’ for daily reference on its various facets for the benefit of the bench, the bar, the law students and the litigant public. At this outset, a word about the recommendation of Hon’ble Justice Malimath Committee is not out of place. By the Code of Civil Procedure (Amendment) Act, 1999, the provision relating to amendment of pleadings had been deleted. Later, it was reintroduced by the Code of Civil Procedure (Amendment) Act, 2002, but with a proviso and was brought into effect from July 1, 2002.
‘Pleading’ shall mean plaint or written statement. (Order VI, Rule 1 of the Code of Civil Procedure,1908). The whole object of the pleadings is to bring parties to the definite issues, reduce costs and to ensure the speedy delivery of justice.
Order VI Rule 17 provides amendment of the pleadings. By Amendment of 2002, a proviso has been added that amendments should generally be allowed at the stage of pre-trial of the Suit. But subsequent thereto, the court must be satisfied as to why the pleadings could not be brought in, unless it was based on subsequent developments. The issue involved herein is being considered by the courts every day. Amendment in the pleadings may generally be allowed and the amendment may also be allowed at a belated stage. However, it should not cause injustice or prejudice to the other side. The amendment sought should be necessary for the purpose of determining the real question in controversy between the parties. Application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him injury which could not be compensated in terms of cost or change the nature of the Suit itself as it cannot be permitted to create an entirely new case by amendment.
The scope of amendment in Order VI Rule 17:-
In Ajendraprasadji N. Pande & Anr. V. Swami Keshavprakeshdasji N. & Ors., 2007 AIR SCW 513, the Supreme Court considered the scope of amendment in Order VI Rule 17 C.P.C. by adding a proviso to the effect that amendment application should be filed prior to commencement of the trial. The Apex Court held that trial commences when the issues are settled and case is set down for recording of evidence. The Apex Court observed that unless the party satisfies the Court that in spite of due diligence, the issue could not be raised in the suit or proceedings before the commencement of trial, the amendment should not be allowed. While deciding the said case, the Apex Court considered a large number of its earlier judgments particularly B.K. Narayana Pillai V. Parmeshwaran Pillai & Anr., (2001) 1 SCC 712; Kailash V. Nankhu & Ors., (2005) 4 SCC 480; & Baldev Singh & Ors. Manohar Singh & Anr., (2006) 6 SCC 498, wherein it had been held that the delay of its own, untouched by fraud is not a ground for rejecting the application for amendment. The provisions are procedural, and therefore, should be construed liberally to advance the case of justice and not to retard or to defeat justice.
Is justifiable to modify or alter the relief without the amendment of the pleadings?
The answer is negative. In Trojan & Co. V. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235, the Apex Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be founded; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao V. Sita Ram Kesho, (1988) 25 IA 195 (PC), The Supreme Court held that, as a rule, relief not founded on the pleadings should not be granted.” In Muni Lal V. The Oriental Fire & General Insurance Co. Ltd., AIR 1996 SC 642, the Apex Court held that the relief of amendment should be granted to “render substantial justice without causing injustice to the other party or violating fair-play and the Court should be entitled to grant proper relief even at the stage of appellate forum.” (Also see:- Jagdish Singh V. Natthu Singh, AIR 1992 SC 1604).
What are the settled principles for amendment of pleadings?
In Hanuwant Singh Rawat V. M/s Rajputana Automobiles, Ajmer, (1993) 1 WLC 625, the Rajasthan High Court summarised the legal position as under:-
(i) That the amendment of pleadings should ordinarily be allowed by the Court, once it is satisfied that the amendment is necessary for the just and proper decision of the controversy between the parties;
(ii) The amendment of pleadings should not ordinarily be declined only on the ground of delay on the part of the appellant in seeking leave of the Court to amend the pleadings, if the opposite party can suitably be compensated by means of costs etc. Even inconsistent pleas can be allowed to be raised by amendment in the pleadings;
(iii) However, amendment of pleadings cannot be allowed so as to completely alter the nature of the Suit;
(iv) Amendment of the pleadings must not be allowed when amendment is not necessary for the purpose of determining the real question(s) in the controversy between the parties;
(v) The amendment should be refused where the plaintiff’s Suit would be wholly displaced by the proposed amendment;
(vi) Where the effect of the amendment would be to take away from the defendant a legal right which has accrued to him by lapse of time or by operation of some law;
(vii) The amendment in the pleadings should not be allowed where the court finds that amendment sought for has not been made in good faith or suffers from lack of bona fides; and
(viii) Ordinarily, the amendment must not be allowed where a party wants to withdraw from the admission made by it in the original pleadings.”
Similarly, in the case of Peethani Suryanarayana v. Repaka Venkata Ramana Kishore, (2009) 11 SCC 308 it was held that the Courts hold the power to allow such amendment provided: (a) Application is bonafide (b) Does not cause injustice to the other side (c) Does not affect the right(s) already accrued to the other side.
Amendment should not change the basic structure of the Suit:-
In Sampat Kumar V. Ayyakannu & Anr., (2002) 7 SCC 559, the Supreme Court held that any amendment seeking to introduce a cause of action, which arose during pendency of the Suit, may be permitted in order to avoid multiplicity of Suit. But, it should not change the basic structure of the Suit. More so, the court should be liberal to allow amendment at the time of pre-trial of a Suit but must be strict and examine the issue of delay where the application for amendment is filed at a much belated stage of commencement of the trial.
In Bharat Karsondas Thakkar V. M/s Kiran Construction Co. & Ors., 2008 AIR SCW 3192, the Supreme Court held that amendment is not permissible if it changes the nature of suit.
Amendments are sought to avoid multiplicity of proceedings:-
In the case of State of MP v. Union of India, (2011) 12 SCC 268, amendment sought after a delay of 5 years and issues are already framed. Relief sought by virtue of amendment was not relief that could be granted in the suit concerned. It was held that though courts have ample power to allow amendment of plaint but the said power should be exercised in the interest of justice and for determination of the real question in controversy between the parties. Either party can amend its pleadings in such a manner and on such terms as may be just. However, 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- A liberal approach should be the general rule approach- A liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Amendments are sought to avoid multiplicity of proceedings and where sought after trial commences, it must be shown that in spite of due diligence, such amendment could not have been sought before. (See also: Revajeelu Builders and Developers V. Narayanaswamy and Sons, (2009) 10 SCC 84.
Amendment is not allowed if it changes the cause of action:-
In G. Nagamma & Ors. V. Siromanamma & Anr., JT 1998 (4) SC 484, the Supreme Court observed that in an application under Order 6 Rule 17, even an alternative relief can be sought; however, it should not change the cause of action or materially affect the relief claimed earlier. In Jagdish Singh V. Natthu Singh, AIR 1992 SC 1604, the Apex Court held that the Court may to a certain extent allow the conversion of the nature of the Suit, provided it does not give rise to an entire new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking damages for breach of contract may be permitted.
In Vineet Kumar V. Mangal Sain Wadhera, AIR 1985 SC 817, the Supreme Court clearly held that normally amendment is not allowed if it changes the cause of action, but where the amendment does not constitute the addition of a new cause of action, or raises a new case, but amounts to not more than adding to the facts already on record, the amendment should be allowed even after the statutory period of limitation. The judgment was substantially overruled by the larger bench in Sureshchand V. Gulam Chintuy, AIR 1990 SC 297.
Amendment sought to incorporate some undisputed facts elaborating the plaintiff’s claim:-
In Fritiz T.M. Clement & Anr. V. Sudhakaran Nadar & Anr., AIR 2002 SC 1148, the Apex Court held that in case the original plaint is cryptic and amendment sought to incorporate some undisputed facts elaborating the plaintiff’s claim is based on the said admitted facts, amendment should be allowed as it would place the defendant in a better position to defend and would certainly not prejudice his case. More so, if the claim does not challenge the nature of the relief, and the rate of fee is challenged without challenging the total amount claimed, such amendment may be allowed even at a belated stage.
Amendment should not disturb the relevant rights of the parties:-
As has been held in Radhika Devi V. Bajrangi Singh, AIR 1996 SC 2358; and Dondapati Narayana Reddy V. Duggireddy Venkatanarayana Reddy, (2001) 8 SCC 115, it is a settled law that if a right accrues in favour of a party, as the order impugned has not been challenged in time, the said right cannot be taken away by seeking amendment in pleadings.
In Gurdial Singh V. Raj Kumar Aneja, (2002) 2 SCC 445, the Supreme Court deprecated the practice adopted by the Courts entertaining the application under O. 6 R. 17 of the Code containing very vague and general statements of fact without having necessary details in the amendment application enabling the Court to discern whether the amendment involves withdrawal of an admission made earlier or attempts to introduce a time-barred plea or claim or is intended to prevent the opposite party from getting the benefit of a right accrued by lapse of time, as an amendment cannot be permitted to achieve the said purpose.
In another case, the Apex Court, in Om Prakash Gupta V. Ranbir B. Goyal, AIR 2002 SC 665 held that amendment should not disturb the relevant rights of the parties that existed on the date of institution of a Suit, but subsequent events may be permitted to be taken on record in exceptional circumstances if necessary to decide the controversy in issue. In State of M.P. V. Kashiram, (2010) 14 SCC 506 adequate consideration must be put in before permission to amend claim, is granted. (Claim to be amended from Rs 4-5 lakh per hectare to Rs 6,17,000 per hectare.
Amendment application – at any stage:-
In Smt. Ganga Bai V. Vijay Kumar, AIR 1974 SC 1126, the Supreme Court observed as under:- “The power to allow an amendment is undoubtedly wide and may, at any stage, be properly exercised in the interest of justice, the law of limitation notwithstanding, but the exercise of such far-reaching discretionary power is governed by judicial consideration and wider the discretion, greater ought to be the care and circumspection on the part of the Court.” In M/s Ganesh Trading Co. V. Maoji Ram, the Supreme Court observed that where an amendment is found to be necessary for promoting the ends of justice and not for defeating the same the application should be allowed. A similar view had been reiterated in B.K.N. Pillai V. P. Pillai & Anr., AIR 2000 SC 614.
If we go through the following rulings, we find that observations of the Apex Court wherein it was held that the court can allow a party to amend pleadings at any stage. L.J. Leach & Co. Ltd. V. Messrs. Jairdine Skinner & Co. AIR 1957 SC 357; Charan Das V. Amir Khan, AIR 1921 Privy Council 50; Prigonda Hongonda Patil V. Kalgonda Shidgonda Patil AIR 1957 SC 363; Nichhalbhai Vallabhai V. Jaswantlal Zinabhai, AIR 1966 SC 997; and M/s Ganesh Trading Co. V. Moji Ram, AIR 1978 SC 484.
Amendment of plaint – before commencement of trial:-
Application for amendment of plaint is allowed as it is filed before commencement of trial of suit and as the proposed amendment is within the purview of the original relief. Mohammed Mahmood and another v. Syed Anwar Mustafa and other, 2016 (2) ALT 262. Amendment of plaint shall not normally be allowed once the trial of the case commenses except in exceptional circumstances. Polisetty Lurdamma (died) and others v. Kunday Mallaiah (died) and others, 2016 (1) ALT 232. Baldev Singh and others v. Manohar Singh and another, 2006 (5) ALT 52 (SC) = 2006 (6) SCJ 305 = (2006) 6 SCC 498 – Distinguished. J.Samuel and others v. Gattu Mahesh and others, 2012 (2) ALT 40 (SC) -Relied on.
Application for amendment after commencement of the trial:-
In Vidyabai & Ors. V. Padmalatha & Anr., (2009) 2 SCC 409, the Apex Court held that the provisions of Order 6 Rule 17 are caused in mandatory form. Therefore, the Court may not allow the application for amendment after commencement of the trial. (See also: Ashutosh Chaturvedi V. Prano Devi, (2008) 15 SCC 610; Ravejeetu Builders & Developers V. Narayanswamy & Sons. & Ors. (2009) 10 SCC 84; and South Konkan Distilleries & Anr. V. Prabhakar Gajanan Naik & Ors., AIR 2009 SC 1177).
Recently, in 2016 (3) ALT 211, J.Yadagiri Reddy and others vs. J.Hemalatha and others, the High Court of Judicature at Hyderabad observed that even in cases where an application for amendment is filed after commencement of trial, the amendment should be allowed if the amendment sought does not require any evidence to be led specifically or additionally by either of the parties to decide the rights of the parties as the object of the Court should be not to punish a party for any mistake committed in filling the plaint initially.
In 2016 (3) ALT 655, Molli Eswara Rao vs. Kurcha Chandra Rao, it was held that admittedly, the respondent herein filed the present application after commencement of trial and according to proviso to Order VI Rule 17 C.P.C., it is incumbent and obligatory on the part of the person applying to show that despite exercising due diligence, such application could not be filed before commencement of trial.
Amendment of plaint schedule at the stage of argument:-
In P.Durga Reddy and another v. B.Yadi Reddy, 2016 (2) ALT 63, It was observed that delay itself is not a ground to reject the amendment when it can be allowed on other considerations. Delay can be compensated by costs in such cases. See. State of AP v. Pioneer Builders, 2007 (1) ALT 43 (SC); Veluri Raja Rajeswari v. Veluri Santhansagar Reddy, 2014 (2) ALT 526. Salem Advocate Bar Association, T.N. v. Union of India, 2005 (6) ALT 19.1 (DN SC). Sameer Suresh Gupta v. Rahul Kumar Agarwal, (2013) 9 SCC 374.
Amendment application is filed, after the judgment has been reserved:-
In G. Nagamma & Anr. V. Siromanamma & Anr., and (1996) 2 SCC 25; B.K. Narayana Pillai V. Parameshwaran Pillai & Anr., AIR 2000 SC 614, it was held that , however, a party cannot be permitted to move an application under Order 6 Rule 17 of the Code after the judgment has been reserved. (Vide: Arjun Singh V. Mohindra Kumar & Ors., AIR 1964 SC 993).
Amendment of written statement:-
In Ishwardas V. The State of Madhya Pradesh & Ors., AIR 1979 SC 551 while considering a case of amendment under Order 6 Rule 17 seeking amendment in the written statement at an appellate stage, the Apex Court held as under:- “There is no impediment or bar against an appellate court permitting amendment of pleadings. So as to enable a party to raise a new plea, all that is necessary is that the appellate court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted, is the delay in making the application, and if amendment is made at appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.”
Recently, in Narahari Kirana Shop, rep., by its Prop. B.Bharathi v. K.Kishore Reddy and others, 2016 (1) ALT 27, the High Court of Judicature at Hyderabad observed that an amendment to written statement which has the effect of effacing the admissions made earlier and ousting the jurisdiction of Court cannot be allowed.
Amendment should not give rise to an entirely new case:-
The Supreme Court of India, in Estrella Rubber V. Dass Estate (P) Ltd., (2001) 8 SCC 97, held that mere delay in making the amendment application is not enough to reject the application unless a new case is made out, or serious prejudice is shown to have been caused to the other side so as to take away any accrued right. (See also: Surender Kumar Sharma v. Makkan Singh, (2009) 10 SCC 626. Similarly, in Siddalingamma & Anr. V. Mamtha Shenoy, (2001) 8 SCC 561, the Supreme Court held that the Doctrine of Relation Back applies in case of amendment for the reason that the amendment generally governs the pleadings as amended pleadings would be deemed to have been filed originally as such and the evidence has to be read and appreciated in the light of the averments made in the amendment petition. A similar view has been reiterated in Raghu Thilak D. John V. S. Rayappan & Ors., AIR 2001 SC 699. (See also: Vimal Chand Ghevarchand Jain & Ors. V. Ramakant Eknath Jajoo (2009) 5 SCC 713.
In Municipal Corporation of Greater Bombay V. Lala Pancham & Ors, AIR 1965 SC 1008, the Constitution Bench of the Apex Court observed that even the court itself can suggest amendment to the parties for the reason that main purpose of the court is to do justice, and therefore, it may invite the attention of the parties to the defects in the pleadings, so that same can be remedied and the real issue between the parties may be tried. However, it should not give rise to an entirely new case.
Application filed at an unduly delayed stage:-
In Jayanti Roy V. Dass Estate (P) Ltd., AIR 2002 SC 2394, the Supreme Court held that if there is no material inconsistency between the original averments and those proposed by the amendment, application for amendment should be allowed. However, the application should be moved at a proper stage. Application filed at an unduly delayed stage should normally be rejected. In Union of India & Ors. V. Surjit Singh Atwal, AIR 1979 SC 1701, the Supreme Court held that in case of gross delay, application for amendment must be rejected.
If the plaintiff wants to add certain facts, which the plaintiff had not chosen to mention in the original plaint and the same were in his knowledge when the plaint was instituted it can be done. However, the plaintiff cannot be allowed to make fresh allegation of facts by way of amendment at a belated stage. (See: Gopal Krishanamurthi V. Shreedhara Rao, AIR 1950 Mad. 32; and Gauri Shankar V. M/s Hindustan Trust (Pvt) Ltd., AIR 1972 SC 2091). In Ashutosh Chaturvedi V. Prano Devi & Ors., 2008 AIR SCW 3352, the Supreme Court held that amendment of pleadings at a belated stage is not permissible as it could not be permissible by two provisions contained in the proviso to Order VI.
There is no absolute rule that amendment should not be allowed at a belated stage:-
In Pankaja & Anr. V. Yellappa (Dead) by L.Rs. & Ors., AIR 2004 SC 4102, the Supreme Court held that there is no absolute rule that amendment should not be allowed at a belated stage in a particular case. Even if amendment sought is barred by limitation, if the Court after examining the facts and circumstances of the case comes to the conclusion that amendment serves the ultimate cause of justice and avoids further litigation, the amendment should be allowed. (Also see:- Rajesh Kumar Aggarwal & Ors. V. K.K. Modi & Ors. , AIR 2006 SC 1647).
Admissions – Amendment of pleadings – effect:-
Admission is the best evidence unless the party who has admitted it proves it to have been admitted under a wrong presumption or it could not have been otherwise factually correct. In Narayan Bhagwantrao Gosavi Balajiwale V. Gopal Vinayak Gosavi & Ors., AIR 1960 SC 100, the Supreme Court observed as infra:- “An admission is the best evidence that an opposing party can rely upon and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.” Similar view was reiterated in K.S. Srinivasan V. Union of India & Ors., AIR 1958 SC 419; Basant Singh V. Janki Singh, AIR 1967 SC 341; Prem Ex-Serviceman Cooperative Tenant Farming Society Ltd. V. State of Haryana, AIR 1974 SC 1121; and Avadh Kishore Dass V. Ram Gopal & Ors., AIR 1979 SC 861.
In M/s Modi Spinning & Weaving Mills Co. Ltd., the Supreme Court specifically held that amendment in pleadings is not permitted if it seeks to “displace the plaintiff completely from the admissions made by the defendant in the written statement.” In Heeralal V. Kalyan Mal & Ors., (1998) 1 SCC 278, the Supreme Court held that once a written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendant cannot be allowed to be withdrawn, if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause some irreparable prejudice. In Nagubai Ammal & Ors. V. B. Shama Rao & Ors., AIR 1956 SC 593, the Apex Court took the same view, holding that the statements admitting the factual position must be given full effect and while deciding the same, the Supreme Court placed reliance on the decision in Slatterie V. Pooley, (1840) 6 M&W 664, wherein the Court had observed that, “what a party must admit to be true, may reasonably presumed to be so.” Also see:-Rakesh Wadhawan V. M/S Jagdamba Industrial Corporation & Ors., AIR 2002 SC 2004.
Amendment application – Limitation:-
In T.N. Alloy Foundry Co. Ltd. V. T.N. Electricity Board & Ors., (2004) 3 SCC 392, the Apex Court held that, the court 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 application.
Obligation of the Court to give time to other party to reply properly:-
It is obligatory on the part of the Court, when it allows the amendment, to give time to the other parties to reply properly, failing which, the decree would be illegal, as it is mandatory that the parties may be given a chance to contest the question in controversy. The Court has a discretion to allow amendment even if it is barred by limitation, if the facts so require.(See: Ramnik Vallabh Das Madhwani V. Tara Ben Pravin Lal Madhwani, AIR 2001 SC 1084; T.N. Alloy Foundry Ltd. V. T.N. Electricity Board, (2004) 3 SCC 392; and Pradeep Singhvi V. Heero Dhankani, (2004) 13 SCC 432). The amendment may be permitted to be carried out if it helps to bring real question in controversy between the parties to the fore as refusal thereof would creat complication at the stage of execution in the event of success of the plaintiff in the suit. (See: Sajjan Kumar V. Ram Kishan, (2005) 13 SCC 89).
The amendment application must be filed before the trial has commenced:-
In Baldev Singh and others v. Manohar Singh and another, 2006 (5) ALT 52 (SC), the Apex Court held that it is not permissible for the plaintiff to raise inconsistent pleas but the defendant has a right to raise inconsistent defences for the reason that the amendment of the plaint and that of the written statement are not governed by exactly the same principle. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as altering or substituting a new cause of action. Therefore, while permitting the amendment in the written statement, a more liberal approach is required. The Court further held that the admissions made in the written statement can be withdrawn if the same can be explained satisfactorily. The amendment application must be filed before the trial has commenced otherwise the proviso added to Order VI Rule 17 by amendment with effect from 01.07.2002 would be rendered nugatory.
Amendment application is filed after the amendment: Effect:–
In State Bank of Hyderabad V. Town Municipal Council, (2007) 1 SCC 765, the Supreme Court held that, if the plaint has been instituted prior to the commencement of the Act and amendment application is filed after the amendment, it shall be governed by the unamended law and the proviso added therein shall not apply.
Delay in filing the application for amendment of pleadings:-
In Salem Advocate Bar Association, Tamil Nadu V. Union of India & Ors., (2005) 6 SCC 344, the Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial. In Usha Bala Shaheb Swami & Ors. V. Kiran Appaso Swami & Ors., (2007) 5 SCC 602, the Supreme Court held that by moving an application for amendment under Order 6 Rule 17 the party cannot wriggle out of an admission, though an admission can be explained, whilst keeping the admission intact. In Andhra Bank V. A.B.N. Amro Bank NV & Ors., (2007) 6 SCC 167, the Supreme Court held that at the time of considering the application for amendment of the written statement it is not open for the Court to go into the facts regarding whether in fact the suit was maintainable or not. Delay in filing the application cannot be the sole ground to refuse the prayer for amendment. (Also see:- Sandeep Polymers (P) Limited V. Bajaj Auto Limited & Ors., (2007) 7 SCC 148.)
The appeal is a continuity of the suit: Estoppel:-
In Bongaigaon Refinery and Pehochemicals Ltd. & Ors. V. Girish Chandra Sharma, (2007) 7 SCC 206, the Division Bench of a High Court rejected the claim of a party to agitate the issue which the said party had given up before the Single Judge in the writ Court, the Supreme Court held that the appeal is a continuity of the suit. There can be no bar for the party to agitate the issue given up by it before the Single Judge, as in such an eventuality, the plea is not barred by estoppel.
Amendment in the written statement to take additional plea:-
In Bollepanda P. Poonacha & Anr. V. K.M. Madapa, 2008 AIR SCW 2895, the Apex Court held, that amendment in the written statement to take additional pleas can be allowed provided it is not in contravention of the interdict in Order VIII Rule 6(A) i.e. the principle for filing the counter claim.
Amendment of pleadings at an appellate stage:-
In North Eastern Railway Administration, Gorakhpur V. Bhagwan Das (D) by L.Rs., 2008 AIR SCW 3159, the Court held that amendment of pleadings at an appellate stage is permissible if it does not cause injustice to other party and is necessary to determine the question in contravention.
In Nagappa Vs Gurudayal Singh & Ors., AIR 2003 SC 674, the Supreme Court held that amendment can be allowed even at an appellate stage in a case where the law of limitation is not involved and the facts and circumstances of the particular case so demand, in order to do justice to the parties. The case involved therein was under the provisions of Sections 166, 168 and 169 of the Motor Vehicles Act, 1988 and as the Act does not provide for any limitation with respect to filing the claim petition, the amendment at the appellate stage was allowed. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. Amendment can also be allowed at the appellate stage. Introduction of an entirely new case, displacing admissions by a party is not permissible. (See: Pirgonda Hongonda Patil V. Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363; Nanduri Yogananda Laxminarsimhachari & Ors. V. Sri Agasthe Swarswamivaru, AIR 1960 SC 622; M/s Modi Spinning & Weaving Mills Co. Ltd. V. M/s Ladha Ram & Co., AIR 1977 SC 680; Ishwardas V. State of M.P., AIR 1979 SC 551; and Mulk Raj Batra V. District Judge, Dehradun, AIR 1982 SC 24).
As was observed in Kankarathanammal V. V.S. Longanatha Mudaliar & Anr., AIR 1965 SC 271; and M/s. Ganesh Trading Company V. Mauji Ram, AIR 1978 SC 484, amendment Application can be moved at any stage of the proceedings, even at the appellate stage.
Amendment may be allowed liberally:-
In Chander Kanta Bansal V. Rajinder Singh Anand, AIR 2008 SC 2234, the Supreme Court held that amendment may be allowed liberally but it should not cause injustice or prejudice of an irremediable nature to the other party under the pretence of amendment. The proviso edited by amendment to Order VI Rule 17 curtails delay and expedite hearing of the cases. Therefore, the party is bound to explain the delay in filing the application and the due diligence undertaken by him should be such diligence as a prudent man would exercise in the conduct of his own affairs. Similar view has also been taken in Gautam Sarup v. Leela Jetly & Ors., (2008) 7 SCC 85; Usha Devi v. Rijwan Ahmad & Ors., (2008) 3 SCC 717; and Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626. Further, as was pointed in Rajesh Kumar Agrawal V. K.K. Modi, AIR 2006 SC 1647; and Baldev Singh V. Manohar Singh, AIR 2006 SC 2832, amendment may also be necessary to bring to light subsequent events and in that situation, the Court cannot examine the truthfulness or merit of the amendment and may allow the amendment application having an extreme liberal view.
The law can be summarised that amendments should be allowed if an application is moved at a pre-trial stage, and even at a later stage if the party wants to introduce the facts in respect of subsequent development as it would be necessary to avoid multiplicity of proceedings. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleadings at the initial stage, the amendment should not be allowed. Amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide. An amendment of pleadings can be permitted, if the amendment is necessary for the just and proper decision of the controversy between the parties. If there is an undue delay in the filing of the application for amendment, without there being sufficient cause shown to condone the delay, then the Court may normally not allow the amendment. Cause of action in a suit cannot be altered by amendment of pleadings. . The amendment of pleadings cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily.