Dr. Pankaj P.
Umbarkar
Associate Professor ,
HNLU, Raipur
Relevant provisions -
As a general rule all persons interested in a suit ought to be joined as
parties to it, so that the matter involved therein maybe finally
adjudicated upon an fresh litigation over the same matters may be
avoided.
Petitions and application which are in the nature of suit.
Charan Lal Sahu V Union of India 1990
The provision of O 1 R. 8 may apply to other proceedings as well
such as writ petition.
1. The Parties must be numerous
2. They must have the same interest in the suit
3. The permission must have been granted or direction must have
been given.
4. Notice must have been issued to the parties to whom it is proposed
to represent.
The issuance of notice of the institution of the suit is pre-requisite
for the RS. If it is not given , the decree will bind on those party
who are on record.
Title:
A on behalf of himself and
all other creditors of C & D
V
C, D
By presentation of the plain
Every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed.
In every plaint, facts shall be proved by affidavit.
Every plaint shall comply with the rules contained in Orders VI and VII,
so far as they are applicable.
The plaint shall not be deemed to be duly instituted unless it complies
with the requirements specified in sub-rules (1) and (2)].
The Court shall cause the particulars of every suit to be entered in a
book to be kept for the purpose and called the register of civil suits.
Such entries shall be numbered in every year according to the order in
which the plaints are admitted.
Order VI R. 1 – Pleading Shall Mean Plaint OR Written Statement
1. Pleading is the foundation of the case
2. Pleading must be complete
3. It must be read completely
4. Party may obtain a leave for additional pleading
Case Laws :
1. Abubakar Inamdar Vs Harun Inamdar (AIR 1996 SC 112): Pleadings
are the foundation for every civil case
2. Ram Narayan Vs Joint Director of Education (AIR 2008 NOC 889)
Amendment of Pleading can be carried out in original pleading and not
on the slip of paper
“Pleadings are statements in writing drawn up and filed by
each party to a case , stating what his contention will be at
trial and giving all such details as his opponent needs to in
order to prepare his case in answer”
1. Ascertaining the point of contentions
2. Narrow down controversy
3. Enable and determine the evidence
4. Cause of action
4. Particulars to be given where necessary.(Cases in which it requires )
[Link] and better statement, or particulars. (Repealed)
[Link] precedent.
[Link].
[Link] of contract.
[Link] of document to be stated.
[Link], knowledge, etc. (Allegations are sufficient )
[Link].
[Link] contract, or relation.
[Link] of law.
[Link] to be signed.
Alternative means the one or the other of two or more things.
Inconsistent on the other hand means manually repugnant ,
contradictory or destructive. One is contrary to the other.
Firm Shrinivas Ram Kumar V Mahabir Prasad AIR 1951 SC 177
The underlying object of allowing alternate pleas and permitting alternative
relief to be claimed in one litigation is to obviate the necessity of another
litigation and to decide the entire controversy in one litigation only.
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 question in
controversy between the parties.
The court shall give the notice if plaintiff amended the material
change but defendant does not appear on the proceedings .
Changes in the rule :
1. This rule was omitted by the Code of Civil Procedure (Amendment) Act
1999.
2. The deletion of r 17 was opposed by the members of the Bar and the
Bench. Therefore, the retention of r 17 by the Amending Act of 2002 is
approved of.
3. However, before the enforcement of the Code of Civil Procedure
(Amendment) Act 1999, the original rule was substituted and restored
with an additional proviso.
4. The proviso limits the power to allow amendment after the
commencement of trial but grants discretion to the court to allow
amendment if it feels that the party could not have raised the matter
before the commencement of trial in spite of due diligence.
AYYAPPALLY MOHD HAJI V. M.M. ABDUL SALAM, (2001) 2 SCC 428
The present rule deals with amendments, which a party desires to make in
his own pleading.
Once an application for amendment of plaint is finally disallowed, deviation
from original pleading cannot be permitted.
In Sajjan Kumar v. Ram Kishan, (2005) 13 SCC 89.
A three-Judge Bench of the Supreme Court considered the question of
permitting amendment relating to misdiscription of the suit property.
In that case the amendment was sought on the plea that the description of
the suit property given in the rent note itself was incorrect and the same
description has been repeated in the plaint.
The defendant opposed the amendment on the ground that the defect was
pointed out in the written statement itself, yet the plaintiff was not diligent
enough to amend the same earlier.
“Such an error committed by the trial Court was liable to be corrected by
the High Court in exercise of its supervisory jurisdiction, even if s 115 of
CPC would not have been strictly applicable.. Still, we are of the opinion
that the proposed amendment was necessary for the purpose of bringing
to the force the real question in controversy between the parties and the
refusal to permit the amendment would create needless complications at
the stage of the execution in the event of the plaintiff-appellant
succeeding in the suit.”
M/s Hi Sheet Industries v. Litelon Ltd., AIR 2007 Mad 78
1. In a suit for injunction, the plaintiff sought amendment of the plaint
to specify the claim for damages in lieu of injunction.
2. The plaintiff had claimed injunction and damages, and in the relief
portion of the plaint it was stated any other sum that may be
ascertained.
3. On these facts a Full Bench of the Madras High Court held the
mentioned relief in the plaint clearly indicated the mind of the
plaintiff to claim more damages in future.
4. When the plaintiff was unable to succeed in getting injunction as
five year period of agreement expired, he wanted to specify the sum
of damages in lieu of injunction.
5. Therefore, it cannot be said that a new case was being introduced,
as the said claim was based on the same cause of action i.e., the
same agreement.
6. Hence the amendment must be permitted.
Kisandas Rupchand v. Rachappa Vithoba (1900) ILR 33 Bom 644
Two simple tests need to be applied, in order to ascertain whether a
given case is within the principle.
1. Could the party asking to amend obtain the same quantity of relief
without the amendment? If not, then it follows necessarily that the
proposed amendment places the other party at disadvantage,
2. Second, in those circumstances, can the party thus placed at a
disadvantage be compensated for it by costs?
Ramavatar v. Manak Raj, AIR 1978
Power to allow amendment should be liberally exercised.
L.N.O. Mills v. Namraj, AIR 1969 Del
Leave to amend must always be granted unless the party applying was acting
mala fide, or that, by his blunder, he had done some injury to his opponent which
could not be compensated for by costs or otherwise.
.Pramada Prasad v. Sagarmal, AIR 1954 Pat 439
Broadly stating, there is no injustice in granting the amendment if the opposite
side can be compensated in costs.
J.B. Patel v. Jaganandan Singh, AIR 1974 Pat 18
The order of costs, however, must be reasonable and not by way of punishment.
Evelyn J. Disney v. Rajeshwar Nath Gupta, AIR 1996
Conversely, amendment should be refused where it is not necessary for the
purpose of determining the real question in controversy between the parties.
Md. Zamiruddin v. Fatima Ahmad, AIR 1978 Pat 153.
An amendment striking out an unnecessary portion of the pleading and which does
not change the cause of action would be permitted.
1 Meaning
2. Who may file written statement
3. When written statement may file
4. Outer limits for filing written Statement
5. Particulars of Written Statement
6. Special rules for defence