Civil Procedure Code 1908
ORDER VI
PLEADINGS GENERALLY
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 question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
1. Rules 17and 18 which were omitted by Act No. 46 of 1999, section 16.
2. Subs. by Act 22 of 2002, sec. 7 for rules 17 and 18 [as they stood immediately before their omission by clause (iii) of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2000).
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18. Failure to amend after order.
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.
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application should mention –
1) Court details
2) Title of the case
3) Memo of parties
4) Pleadings which are sought to be amended
5) Reasoning
6) Prayer clause to allow amendment the same
7) Prayer
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Rajesh Kumar Aggarwal vs. K.K. Modi [(2006) 4 SCC 385
The object of the rule is that Courts should try the merits of the case 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.
Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
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· Similar views were also expressed in Andhra Bank vs. ABN Amro Bank N.V. [(2007) 6 SCC 167].
· AIR 2002 SUPREME COURT 1003 "Gurdial Singh v. Raj Kumar Aneja"
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SUPREME Court in Harcharan vs. State of Haryana [(1982) 3 SCC 408], where it was observed that amendment of pleadings relating to the main controversy should not be refused on mere technical grounds
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IN REVAJEETU BUILDERS CASE BEFORE SUPREME COURT DECIDED IN OCTOBER 2009 THE FOLLOWING PRINCIPLES WERE QUOTED IN THE MATTER OF AMENDMENT OF PLEADINGS
On critically analyzing 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.
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There was no bar to the Appellate Court permitting amendment of pleadings to enable a party to raise a new plea, as was held by SUPREME Court in Pandit Ishwardas vs. State of M.P. [(1979) 4 SCC 163]. In fact, SUPREME Court observed that all that was necessary was 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 would be taken into consideration before an amendment was granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the Trial Court.
1. The Hon’ble Supreme court of India in Salem Advocate Bar Assn. v. Union of India [(2005) 6 SCC 344] has held that “It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial.
2. The Hon’ble Supreme court of India in Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarwagi And Co. Pvt. Ltd. And Anr. Decided on 14/5/2008 and Judgement can be seen in https://judis.nic.in/supremecourt/chejudis.asp “ It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected.”
3. The Hon’ble Supreme court of India in Chander Kanta Bansal vs Rajinder Singh Anand Decided on: 11/03/2008 and Judgement can be seen in https://judis.nic.in/supremecourt/chejudis.asp It is observed by court as follows “ It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial.”
4. The Hon’ble Supreme court of India in N.Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors. [2006 (12) SCC 1]. and Judgement can be seen in https://judis.nic.in/supremecourt/chejudis.asp In paragraph 57 of the decision, it was observed as follows :”It is submitted that the date of settlement of issues is the date of commencement of trial.”
5. The Hon’ble Supreme court of India in Baldev Singh & Ors. Vs. Manohar Singh & Anr. [2006 (6) SCC 498]. and Judgement can be seen in https://judis.nic.in/supremecourt/chejudis.asp In paragraph 17 of the decision, it was held and observed as follows : “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.
6. The Hon’ble Supreme court of India in South Konkan Distilleries & Anr. Vs Prabhakar Gajanan Naik & Ors.[Decided on 09-09-2008]. and Judgement can be seen in https://judis.nic.in/supremecourt/chejudis.asp it was held and observed as follows : “we are of the view that if a suit was filed on the amended claim, it was an admitted position that the said claim was barred by limitation, the question of allowing the amendment of the written statement and the counter claim, in the facts and circumstances of the case, could not arise at all. Accordingly, the courts below were fully justified in rejecting the application for amendment of the written statement and the counter claim.”
