Name :- Ratnesh kumar

University:- The ICFAI university Dehradun

Email:- ratnesh8678@[Link]

 what is Pleadings and its Rule ?

Pleadings are the statements which are the backbone of every civil suit. No civil suit will come
into existence if there are no Pleadings. Pleadings have been defined under Order 6 Rule 1 of
CPC which states that Pleading shall be Plaint or Written Statements. Plaint is the statements
filed by the Plaintiff in a Civil Court to prove his claim whereas Written statements are the
statements defined in Order 8 Rule 1 of CPC which states that defendant should file written
statements in 30 days from the date of issuance of the summons. Written statements are filed by
the defendant for his defense.
Plaint has not defined in CPC but it can be termed as pleadings of Plaintiff from which civil suit
is initiate Plaint should be properly drafted and it should not contain any vague or unambiguous
statements. Pleadings are those material facts which helps plaintiff to define the cause of action
and defendant to establish his defense in a civil suit.

 Order VI Rule 17 Code of Civil Procedure :

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.”

 In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil court to allow parties
to alter, amend or modify the pleadings at any stage of proceedings.
Provision for Amendment of pleadings has been stated in Order 6 Rule 17 of the Code of civil
procedure. But the court will allow amendment only if this amendment is necessary to determine
the controversy between the parties. The purpose of this provision is to promote ends of justice
and not to defeat the law.

The Proviso of Order 6 Rule 17 states that court will not allow application of amendment after
the trial has been commenced unless court comes to the conclusion that party did not raise the
relevant facts before the commencement of the trial. This proviso gives discretionary power to
the court to decide on the application of pleadings after the commencement of the Trial. An
institution of the suit is necessary for applying for amendment of pleadings.

This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This omission was
made to ensure consistency in new changes in the civil code. But later, it was restored by the
Civil Procedure (Amendment) Code, 2000. This amendment has given power to the court to
allow application of the pleadings with some limitation.

In the case of Gurdial Singh v. Raj Kumar Aneja AIR 2002 SC 1003 (1010) :(2002) 2 SCC
445,
The court stated that any person who is applying for the amendment of pleadings should state
that what is to be altered, amended or modified in the original pleadings.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors(2006) 4 SCC 385,

The court stated that Amendment of pleadings consists of two parts :

In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow
application of pleadings.
In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the
application of pleadings if this amendment is necessary for the purpose of determining the real
questions in controversy between the parties.

 Why court allows amendment of Pleadings?

The primary objective for the court to allow application for Amendment of Pleadings is secure
the ends of the justice and prevent injustice to other parties. Also, this amendment is necessary
for the purpose of determining the real questions in controversy between the parties.
 Amendments of pleadings help the parties to correct its mistakes in the pleadings.
In the case of Cropper v. Smith 1885, the court stated that the object behind amendment of
pleadings is to protect the rights of the parties and not to punish them for the mistake made by
them in the pleadings.

Importance of the Doctrine of Relation back in Amendment of Pleadings

When the court allows the application of the Amendment of Pleadings then it relates back to the
date of suit.
But in the case of Sampath Kumar v. Ayyakannu AIR 2002 SC 3369(3372),
The court stated that in some special cases, the court can direct that amendment of pleadings will
not relate back to the date of suit.

 Amendment of Pleadings when granted:

In the case of Kishan Das Vithoba Bacheloron 2 July, 1909,

The court stated that there are two necessary conditions to be satisfied before granting leave for
amendment of pleadings:
 This grant of leave should not leads to the injustice to other party.
 This Amendment of pleadings is necessary for determining the real question of
controversy between parties.

In the case of Rajkumar Gurawara (Dead) Thr. [Link]. vs S.K. Sarawagi And Co. Pvt. Ltd.
AIR 2008 ,
The honorable Supreme Court stated certain conditions when amendments of Pleadings can be
allowed they are:

 When nature of the case will change by allowing application for amendment of appeal
 When a new cause of action arise by allowing application of an amendment
 When Amendments of Pleadings defeats the law of limitation.

Other points on which Amendments of Pleadings is granted:

  When the application of amendment is filed to avoid multiplicity of suits.
 When parties in the plaint or written statements wrongfully described.
 When the plaintiff omits to add some properties to the plaint.

 Amendment of Pleadings when refused:

 Application of amendment of Pleadings is rejected by the court when this amendment is

not necessary for determining the real question of controversy between parties.
 Application of amendment of pleadings is rejected when it leads to the introduction of a
totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons7 Supreme
Court held that “ the defendant cannot be allowed to change completely the case made in
certain paragraphs of the written statement and substitute an entirely different and new
case”.
 When the Plaintiff or defendant is negligent
 When proposed alteration or modification is unjust
 Application for Amendments of Pleadings is refused when it violates the legal rights or
cause injustice to the other party
 Leave to amend is refused when it leads to the needless complications in the case.
 Leave to amend is refused when there has been excessive delay by the parties in filing the
suit.
 Application of Amendment is refused when it changes the nature of the disputes
 The court will not grant application of amendment of 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.

 Can the pleadings be amended if the suit is debarred by the Limitation Act

In the case of L.J. Leach & Co. Ltd. v. Jardine Skinner & Co (1976) 4 SCC 320(321): AIR
1977 SC 680.,
The Supreme Court stated that court can decline the application of amendment of pleadings if it
is debarred by the Limitation Act. But the court has discretionary power to allow this application
to secure ends of justice. The limitation can be ground for rejecting the application but the court
can allow if the court thinks that amendment is necessary.

In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors AIR
1957 SC 357,
The court stated that it is settled principle that court can disallow the application of amendment if
on the date of the filing of Application it is barred by the limitation. But this not mean that court
cannot order grant for Application. For securing the interest of justice, the court has discretionary
power to allow application of amendment of pleading.

In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors (2008) 14 SCC 632,
The court held that there is no settled principle that which states that court can reject the
application of amendment if on the date of filing the application it is barred by limitation. The
court stated the discretion to allow or not to allow application depends on the factual background
of the case. If facts & circumstance of the case clearly establishes that this amendment is
necessary to determine the cause of action and to avoid further litigation then the court should
allow this application.

In the case of Ragu Thilak D. John v. S. Rayappan AIR 2004 SC 4102,

The court stated that it is disputed fact that application of amendment will be allowed or not
when it is barred by the Limitation. But in many cases, the issue of limitation is made an issue in
the suit, In those cases, application of amendment is allowed for disposing of the case.

In the case of Vishwambhar v. Laxminarayan (2001) 2 SCC 472,

The court held that application for amendment of Pleading is to the relate back to a filling of the
date of application not to the date of filing of the suit.
  Subash Gupta vs Yadap Nepal on 15 September, 2017

 16. In re:- B. K. N. Pillai v. P. Pillai & Anr.9 the Apex Court after referring to various
judgments of the privy Council as well as the Apex Court on the un-amended Order VI
Rule 17 of the CPC would hold:-
"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 to 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 on the
basis of guidelines laid down by various High Courts and this Court. 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 hypertechnical 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. Amendments are allowed in the pleadings to
avoid uncalled for multiplicity of litigation."
 18. In a case relating to an application for amendment filed in the year 1999, before the
commencement of the trial by a judgment rendered on 13.09.2002, the Apex Court in re:
Sampath Kumar (supra), while explaining the mandate of Order VI Rule 17 of CPC
would hold :-

"9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or
amend his pleadings at any stage of the proceedings and on such terms as may be just.
Such amendments as are directed towards putting forth and seeking determination of the
real questions in controversy between the parties shall be permitted to be made. The
question of delay in moving an application for amendment should be decided not by
calculating the period from the date of institution of the suit alone but by reference to the
stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed
more liberally than those which are sought to be made after the commencement of the
trial or after conclusion thereof. In the former case generally it can be assumed that the
defendant is not prejudiced because he will have full opportunity of meeting the case of
the plaintiff as amended. In the latter cases the question of prejudice to the opposite party
may arise and that shall have to be answered by reference to the facts and circumstances
of each individual case. No straitjacket formula can be laid down. The fact remains that a
mere delay cannot be a ground for refusing a prayer for amendment.

 "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17
CPC provides that amendment of pleadings shall not be allowed when the trial of the suit
has already commenced.

For this reason, we have examined the records and find that, in fact, the trial has not yet
commenced. It appears from the records that the parties have yet to file their
 documentary evidence in the suit. From the record, it also appears that the suit was not on
the verge of conclusion as found by the High Court and the trial court. That apart, (2005)
6 SCC 344 WP(C) No. 33 of 2016 Shri Subash Gupta v. Shri Yadap Nepal
commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil
Procedure must be understood in the limited sense as meaning the final hearing of the
suit, examination of witnesses, filing of documents and addressing of arguments. As
noted hereinbefore, parties are yet to file their documents, we do not find any reason to
reject the application for amendment of the written statement in view of proviso to Order
6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow
an amendment of the written statement at any stage of the proceedings."

 Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009)
10 SCC 84, at para 63:

 "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:
 (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 the
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.

 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 Vidyabai and others vs. Padmalatha and another – AIR 2009 SC 1433,

Hon’ble Supreme Court has discussed the legisltative intent behind bringing the proviso
to Rule 17 of Order 6 of CPC. At para 7 of the said judgment it was opined that the
provisions of Order 6 Rule 17 of the CPC are in mandatory [Link] court’s jurisdiction
to allow an application under Order 6 Rule 17 of CPC is taken away unless the conditions
precedent therefor are satisfied i.e., the court must come to a conculsuion that inspite of
due diligence the parties could not have raised the matter before the commencement of
trial.

Thus, the proviso indicates that once the trial commences, no amendments should be
allowed except where it is found necessary on account of the subsequent events like a
change in law subsequent to the framing of the issues or on account of any fact coming to
the knowledge of the applicant after framing of the issues which he could not have
discovered with due diligence before the issues were framed.

 It is clear from the amended Rule 17 of Order VI of the C.P.C., that no application for
amendment is to be allowed after the trial has commenced, unless Court comes to the
conclusion that inspite of due diligence, parties could not raise the matter before
commencement of the trial. Therefore the Hon'ble Supreme Court and all High Courts
have explained what does “commencement of trial” mean.

 Vidyabai vs. Padmalatha (AIR 2009 SC 1433)

The date on which the issues are framed is the date of first hearing. Provisions of
the Code of Civil Procedure envisage taking of various steps at different stages of
the proceeding. Filing of an affidavit in lieu of examination in chief of the
witness, would amount to 'commencement of trial'.

 Baldev Singh vs. Manohar Singh(AIR 2006 SC 2832)-

‘Commencement of trial’ must be understood in the limited sense as meaning the

final hearing of the suit, examination of witnesses, filing of documents and
arguments.

 Brij Gopal Pallod & others vs. Municipal Council, Zaheerabad(2013(2) ALT
353)-

The trial of suit said to have commenced when the trial court makes the chief
examination of the first witness in the suit presented in the form of an affidavit,
as part of record, after verification of its content, and on an examination of the
documents mentioned therein from the point of view of admissibility, and when
 such witness is available for cross-examination by the opposite party.

 In the case of Sampath Kumar vs. Ayyakannu and another reported in AIR 2002
SC 3369,

The Apex Court held that in a suit for permanent prohibitory injunction against the
defendant for forcefully dispossessing the plaintiff, where the plaintiff sought by
amendment relief for declaration of title to suit property and consequential relief of
delivery of possession. The proposed amendment was held not to have altered the basic
structure of the suit. With regard to the delay, the Court held that the question of delay in
moving the application for amendment should be decided not by calculating the period
from the date of institution of the suit alone, but, by reference to the stage to which the
hearing of the suit has proceeded. Pre-trial amendments are allowed more liberally than
those which are sought to be made after the commencement of the trial or after
conclusion thereof. It held that in former case generally it can be assumed that the
defendant is not prejudiced because he will have full opportunity of meeting with the case
of the plaintiff as amended, whereas, there could be some possibility of prejudice if it is
preferred after the trial has commenced. However, no straight jacket formula is laid down
and considering the reference and the facts and circumstances of each individual case,
this aspect of delay is needed to be considered.

 In the case of Jai Jai Ram Manohar Lal vs. National Building Material Supply,
Gurgaon, reported in AIR 1969 SC 1267,

The Apex Court held that the suit was originally instituted mis-describing the plaintiff
and the amendment was sought for substituting the real plaintiff. The Court held that
there was no question of limitation in such case and the plaint must be deemed on such
amendment to have been instituted in the name of real plaintiff on the date on which it
was originally instituted. It further held that the rules and procedure are intended to be
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 and
procedure. The Court always gives leave to amend the pleading of a 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 may not be compensated for by an order of costs.
However, negligent or careless may have been the first omission, and, however, late the
proposed amendment, the amendment may be allowed if it can be made without injustice
to the other side.
  [Link] vs Kasirajan on 28 January, 2016
6. On evaluating the evidences both oral and documentary, the learned Trial Judge 'viz'
the learned District Munsif, Sivakasi had proceeded to dismiss the suit on 19.11.2010. Having
been aggrieved by the judgment of dismissal, the appellants (plaintiffs) had preferred an appeal
in [Link].2 of 2011 on the file of the learned Subordinate Judge, Sivakasi. During the pendency
of the appeal, the appellants had taken out an application in [Link].47 of 2011 under Order 6
Rule 17 and Section 151 of the Code of Civil Procedure, 1908 seeking permission to amend the
plaint by inclusion of the particulars detailed in the petition. This petition was contested by the
respondents. After hearing both sides, the First Appellate Court had dismissed the petition.
18. It may be relevant to note here that it is the settled proposition of law that the
amendment of pleadings at any stage under Order 6 Rule 17 could be permitted. Order 6 Rule 17
C.P.C. postulates amendment of pleadings at any stage of the proceedings because the appeal is
continuation of the suit.
19. It is also the settled proposition that all amendments ought to be allowed which satisfy
the following two conditions:-
a) of not working injustice to the other side.
b) of being necessary for the purpose of determining the real questions in controversy between
the parties.
20. Amendments should normally 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. In North Eastern Railway
Administration, Gorakhpur v. Bhagvan das (D) by Lrs) 2008-4-LW-80, while speaking on behalf
of a Division Bench, Hon'ble [Link] [Link] in paragraph 15 has observed as under:-
''15. Insofar as the principles which govern the question of granting or
disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are
concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of
pleadings at any stage of the proceedings. In Pirogonda Hongonda Patil Vs. Kalgonda Shidgonda
Patil & others AIR 1957 SC 363, which still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other
side, and (b) 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.
 28. In BACHAN LAL VS. STATE OF UTTARANCHAL, AIR 2004 UTTRA. 23, it has
been held that :-
''Where prayer made for amendment of pleading under Order 6 Rule 17 by amendment Act of
2002, the prayer should not be disallowed by taking hypertechnical view. The plaintiff sought
amendment for declaring that the order of cancelling the patta was null and void, held to
determine the real question in controversy, amendment can be allowed. From the perusal of the
amendment which are sought to be incorporated, it appears that the plaintiff has already taken the
plea that the order dated 16.07.1984 passed by the District Magistrate/Collector Uttrakashi be
quashed, in other words since the quashing is not possible by the civil court and the suit can be
brought only under the provisions of Specific Relief Act therefore, the plaintiff has sought
amendment for declaring the same to be void. In other words the plaintiff was already conscious
of the fact that the order dated 16.07.1984 is null and void only due to defective pleadings quash
was mentioned instead of declaring to be void. It is a settled law that at the time of the allowing
of amendment, the Court has only to look as to whether the ingredients of Order VI, Rule 17 are
satisfied or not. Rule 17 is very much clear it provides that amendment can be allowed at any
stage or proceedings on such terms as may be just, there is no quarrel with the proposition that
amendment was sought at the trial stage and that too without changing the nature of the suit.''

 The Apex Court in the case of Rajesh Kumar Aggarwal and others vs. K.K. Modi and
others, (2006) 4 SCC 385 held that the provisions of Order 6 Rule 17 are in two parts,
i.e. directory and mandatory, and the Court should allow all amendments that may be
necessary for determining the real question in controversy between the parties provided,
that it does not cause injustice or prejudice to the other side. Only in the cases where the
amendment on the basis of subsequent events would be necessary for the purpose of
determining the real controversy, the application would be allowed. But, the real
controversy test is the basic or cardinal test and it is the primary duty of the Court to
decide whether such an amendment is necessary to decide the real dispute between the
parties. If it is, the amendment will be allowed if it is not the amendment will be refused.
In the said judgment the Apex Court has also taken into consideration that by the
proposed amendment the basic structure/nature of the suit should not change.

 Shiromani Flat Owners' ... vs Kolkata Municipal Corporation & ... on 25 July, 2019

 The learned advocate appearing on behalf of the private respondent strongly

opposes the said applications for amendment and addition of party. It has been
submitted that the said application is akin to an application made under Order 6
Rule 17 of the Code of Civil Procedure. It has been submitted that under the un-
amended provisions of Order 6 Rule 17 the Court may, at any stage of the
proceedings, allow either party to alter, amend the pleadings as may be necessary
for the purpose of determining the real questions in controversy. The said
 provision has been amended in the year 2002 and limitation has been imposed
upon the Court in applying the said provision by adding the proviso to the
original provision. Due to the said proviso an obligation has been cast on the
Court not to allow applications for amendment after the trial has commenced,
unless of course, 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.

 It has been submitted that the petitioners acted in a very casual and cavalier
manner. They were all along aware of the existence of the purported documents.
They did not exercise due diligence in putting forth their claim. The proviso to
Order 6 Rule 17 puts an embargo on the Court to allow applications after trail has
commenced. The same can be allowed only if 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. As the petitioners had all the documents within their
knowledge prior to commencement of the arguments in the matter accordingly
the application for addition and for amendment is liable to be rejected.

 The respondents rely upon the decision delivered by the Hon'ble Supreme Court
in the matter of Vidyabai and Others vs. Padmalatha and Another reported in
(2009)2 SCC 409 paragraphs 10, 11, 15 and 19 wherein the Court held that it is
the primal duty of the court to decide as to whether such an amendment is
necessary to decide the real dispute between the parties. Only if such a condition
is fulfilled, the amendment is to be allowed.

 The answering respondent also relies upon an unreported judgment delivered by

the Hon'ble Division Bench of this Court on 2nd April, 2019 in CO no. 2868 of
2017 in the matter of Sri Sri Ishwar Radha Behari Jew and Sri Sri Ishwar
Shalgram Jew represented by Basudev Das vs. Malati P. Soni wherein the Court
explained the expression "commencement of trial" used in the proviso to Order 6
Rule 17 Civil of Procedure Code. The Court held that the date when the Court
first applies its mind after the affidavit of evidence if filed and when the first
witness proves his affidavit of evidence or such witness seeks to prove a
document for it to be tendered in evidence or the cross-examination of such
witness begins, whichever is earlier.

 The petitioner in GA 1381 of 2019, WP 388 of 2018 submits that the proviso to
Order 6 Rule 17 Code of Civil Procedure will not stand as a bar in as much as
there was no "commencement of trial" in this case. It has been submitted that
though affidavits have been exchanged in between the parties but hearing of the
case has not been commenced. In such a situation there is no impediment on the
part of the Court to add the West Bengal Heritage Commission and its Chairman
as party respondent and to make the necessary amendments in the pleadings.