FINAL DRAFT DRAFTING OF PLEADING AND CONVEYANCING

DR. RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY , LUCKNOW

ACADEMIC SESSION 2020-2021

FINAL DRAFT- DRAFTING OF PLEADING AND CONVEYANCING

“AMENDMENT OF PLEADINGS”

SUBMITTED TO - SUBMITTED BY:

DR. SHAKUNTALA SANGAM IRUL SRIVASTAVA

ASS. PROFESSOR, (DRAFTING AND PLEADING) ENROLLMENT NO. 180101059

DR. RAM MANOHAR LOHIYA SECTION A

NATIONAL LAW UNIVERSITY B.A. LLB (HONS.) SIXTH SEM

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ACKNOWLEDGEMENT

This is to acknowledge that I, Pushpam Raj Pandey, Enrollment number-170101104, BA.LLB 6TH
SEMESTER has made this project work entitled “AMENDMENT OF PLEADINGS”. This
submission to Dr. Ram Manohar Lohia National Law University is a record of an original work
done by me under the guidance of Dr. Shakuntala Sangam, Assistant Professor of DRAFTING,
PLEADING AND CONVEYANCING at RMLNLU. The results embodied in the project have not
been submitted to any other university or institute or in any kind of seminar. The project is original
and has been carried out with the help of research. The study of this project shall involve doctrinal
research methodology. Study of this project will be done through books, articles, magazines,
journals and internet databases. Thus I am thankful to my teacher for giving me this opportunity
and providing all kind of help to me in finishing it. Last but definitely not the least I would like to
thank my family and friends for providing the necessary things and help for completing the project
on time.

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CONTENTS
ACKNOWLEDGEMENT .............................................................................................................. 2

INTRODUCTION .......................................................................................................................... 4

Order VI, Rule 17- Amendment of Pleadings ................................................................................ 5

AMENDMENT AND ITS OBJECTIVES: .................................................................................... 6

LEAVE TO AMEND WHEN GRANTED .................................................................................... 6

LEAVE OF AMENDMENT WHEN NOT GRANTED ................................................................ 8

Conclusion .................................................................................................................................... 10

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INTRODUCTION

According to Black law Dictionary “Pleadings are written allegations of what is affirmed on the
one side, or denied on the other, disclosing to the court or jury having to try the cause the
real matter in dispute between the parties.”

Pleadings are statements in writing drawn up and filed by each party to a case stating what his
contentions will be at the trial and giving all such details as his opponent needs to know in order
to prepare his case in answer.

Pleading is defined in the Code of Civil Procedure as meaning a plaint or written statement.(Order
VI, Rule 1).

The whole object of the pleadings is to narrow the parties to definite issues and thereby diminish
expense and delay, especially as regards the amount of testimony required on either side of the
hearing.

The Fundamental Rules regarding pleading are:

1) A pleading must state facts and not law.

2) It must contain only material facts on which the parties relies for his claim or defence.
3) It must state only the facts on which the party pleading relies for his claim or defence,
and not the evidence by which they are to be proved.
4) The facts must be in form of a concise statement but in aiming at conciseness, precision
should not be sacrificied.
Pleadings are statement in writing delivered by each party alternately to his opponent,
stating what his contentions will be at the trial, giving all such details as his opponent needs
to know in order to prepare his case in answer. It is an essential requirement of pleading
that material fact and necessary particulars must be stated in the pleadings and the decisions
cannot be based on grounds outside the pleadings. But many a time the party may find it
necessary to amend his pleadings before or during the trial of the case and keeping in mind

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the importance of pleadings Rule 17 of Order VI of C.P.C provides with the provision of
amendment of pleading.

ORDER VI, RULE 17- AMENDMENT OF PLEADINGS

"17. 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."

The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this
provision was deleted. It has again been 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. The proviso, to some extent, curtails absolute
discretion to allow amendment at any stage. Now, if application is filed after commencement
of trial, it must be shown that in spite of due diligence, such amendment could not have been
sought earlier.1

1
(2006) 4 SCC 385

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AMENDMENT AND ITS OBJECTIVES:

As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have
to be struck out. The paramount object behind Amendment is that the courts should try the merits
of the cases that come before them and should consequently allow all amendments that may be
necessary for determining the real question in controversy between the parties provided it does not
cause injustice or prejudice to the other side. Ultimately, the courts exist for 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 full and complete justice to parties Provisions for the amendment of
pleading are contained to promote end of justice and not for defeating them. Further in the leading
case of Cropper v. Smith, the object underlying the amendment of pleadings has been laid down
by Bowen, L.J. in the following words: “I think it is well-established principle that the object of
the courts is to decide the rights of the parties and not to punish them for mistakes they make in
the conduct of their cases by deciding otherwise than in accordance with their rights”.

Thus the purpose and object of Order VI, Rule 17 is to allow either party to alter or amend his
pleadings in such a manner and on such terms as may be just. 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. Liberal approach should be the general rule particularly, in cases
where the outer side can be compensated with costs. Normally, amendments are allowed in the
pleadings to avoid multiplicity of litigations.

LEAVE TO AMEND WHEN GRANTED

In the case of State of M.P v. U.O.I. it was said that Among various rules of pleading in Order
XXVI we are concerned about Rule 8 which reads as under:

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“ The court may, at any stage of the proceedings, allow either party to amend his pleadings in such
manner and on such terms as may be just, but only such amendments shall be made as may be
necessary for the purpose of determing the real question in controversy between the parties.”

The above provision, which is similar to Order VI, Rule 17 of the Code prescribes that at any stage
of the proceedings, the Court may allow either party to amend his pleadings. However, it must be
established that the proposed amendment is necessary for he purpose of determining the real
question in controversy between the parties.

The Rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a
general rule, leave to amend will be granted so as to enable the real question in issue between
parties to be raised in pleadings, where the amendment will occasion no injury to the opposite
party and can be sufficiently compensated for by costs or other terms to be imposed by the order.

In Kisandas v. Vithoba2, Batchelor J. observed as follows: “All amendments ought to be allowed

which satisfy the two conditions:

1. of not working in justice to the other side, and

2. of being necessary for the purpose of determining the real questions in controversy between the
parties. Amendments should be refused only where the other party cannot be placed in the same
position as if the pleading had been originally correct, but the amendment would cause him an
injury which could not be compensated in costs .”

Same was held in the case of Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil.

Therefore the main points to be considered before a party is allowed to amend his pleading are:
firstly, whether the amendment is necessary for determination of the real question in controversy;

2
(2008) 3 SCC 511

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and secondly, can the amendment be allowed without injustice to the other side. Thus, it has been
held that where amendment is sought to avoid multiplicity of suits, or where the parties in the
plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence,
the amendment should be allowed.

LEAVE OF AMENDMENT WHEN NOT GRANTED

It is true that courts have very wide discretion in the matter of amendment of pleadings. But the
wider the discretion, the greater is the possibility of its abuse. Ultimately it is a legal power and no
legal power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai v. Vijay
Kumar, the Supreme Court has rightly observed:“The power to allow an amendment is
undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the
law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is
governed by judicial considerations and wider the discretion, greater ought to be the care and
circumspection on the part of the court”. Generally, in the following cases, leave to amend will be
refused by the court:

1. Leave to amend will be refused when amendment is not necessary for the purpose of
determining the real question in controversy between the parties. The real controversy
test is the basic test. In Edevian v. Cohen, the application for amendment was rejected
since it was not necessary to decide the real question in controversy.
2. 2. Leave to amend will be refused if it introduces a totally different, new and inconsistent
case or changes the fundamental character of the suit or defence. In Steward v. North
Metropolitan Tramways Co., the plaintiff filed a suit for damages against the tramways
Company for negligence of the company in allowing the tramways to be in a defective
condition. The company denied the allegation of negligence. It was not even contended
that the company was not the proper party to be sued. More than six months after the
written statement was filed, the company applied for leave to amend the defence by
adding the plea that under the contract entered into between the company and the local
authority the liability to maintain tramways in proper condition was of the latter and,

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therefore, the company was not liable. On the date of the amendment application, the
plaintiff's remedy against the local authority was time barred. Had the agreement been
pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under
the circumstances, the amendment was refused.

3. Leave to amend will be refused where the effect of the proposed amendment is totake
away from the other side a legal right accrued in his favour . Every amendment should be
allowed if it does not cause injustice or prejudice to the other party. In Weldon v. Neal
the original action was simply for slander, and the plaintiff was non-suited. Later she
sought to amend her claim by setting up, in addition to the claim for slander, fresh claims
in respect of assault, false imprisonment and other causes of action, which at the time of
such amendment were barred by limitation though not barred at the date of the writ. Here,
then, the amendment sought to setup fresh claims, claims which had never been heard of
until they had become barred; yet even in so strong a case as this Lord Esher M.R.
refusing leave to amend intimated that the decision might have been the other way if
there had existed special circumstances to justify it.

4. Leave to amend will be refused where the application for amendment is not made in good
faith. The leave to amend is to be refused if the applicant has acted mala fide. In Patasibai
v. Ratanlal, it was observed that there was no ground to allow the application for
amendment of the plaint which apart from being highly belated, was clearly an
afterthought fur the obvious purpose of averting the inevitable consequence of rejection
of the plaint on the ground that it does not disclose any cause of action or raise any trivial
issue.

THE RULE IN THE CASE OF REVAJEETU BUILDERS AND

DEVELOPERS V. NARAYANASWAMY AND SONS AND OTHERS
"63. On critically analysing both the English and Indian cases, some basic principles
emerge which ought to be taken into consideration while allowing or rejecting the
application for amendment:

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(1) whether the amendment sought is imperative for proper and effective adjudication of
the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be
compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes he nature

and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended
claims would be barred by limitation on the date of application. These are some of the
important factors which may be kept in mind while dealing with application filed under
Order 6 Rule 17. These are only illustrative and not exhaustive."

The above principles make it clear that Courts have ample power to allow the application
for amendment of the plaint. However, it must be satisfied that the same is required in the
interest of justice and for the purpose of determination of real question in controversy
between the parties.

CONCLUSION

It can be concluded that the amendment of pleading is necessary to avoid multiplicity of

civil suits. But, the court cannot grant the leave of amendment at its whims and fancies.
There has to be certain criterion for granting or refusing the leave, which has been laid

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down in case laws. It is a well known fact that delay in justice is one of the basic flaws of
the Indian Judiciary and amendment of pleadings is a vital reason for that.

The Court must not refuse bona fide, legitimate, honest and necessary amendments and
should never permit mala fide amendments. Amendment of pleadings cannot be claimed
as a matter of right and under all circumstances, but the Courts while deciding such prayers
should not adopt a mechanical approach. The court should adopt a liberal approach in cases
where the other side can be compensated with costs. Normally, amendments are allowed
in the pleadings to avoid multiplicity of litigations. Therefore it is for the Courts to decide
whether an amendment of pleading is necessary for the cause of justice or curbing the
delay.After all the basic aim of the judiciary is to strive for ends of justice so it has to
maintain the balance accordingly.

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