AMENDMENT OF PLEADINGS RULES 17-18

As already stated, material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. But many a times the party may find it necessary to amend his pleadings before or during the trial of the case. “Fresh information has come to hand; interrogatories have been fully answered by his opponent; documents whose existence was unknown to him have been disclosed which necessitates reshaping his claim or defence. Or his opponent may have raised some well-founded objections to his pleadings, in which case it will be advisable for him to amend at once his pleadings before it is too late.

Rule 17

Rule 17 provides for amendment of pleadings. It reads as under:

• “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.” (Inserted by amendment act 2002)

Reasons for court to allow amendment

• The Primary objective for the court is to allow application for amendment of pleadings to secure the ends of the justice and prevent injustice to other parties.
• When amendment is necessary for the purpose of determining the real questions in controversy between the parties.
• Amendment of pleadings help the parties to correct mistakes in the pleadings.

Stages where the pleadings can be amended

• The court will allow amendment only if it is necessary to determine the controversy between two parties. The purpose of this provision is to promote ends of justice and not to defeat the law.
• The court has discretionary power to decide on the application of amendment after the trial has commenced. However, such discretion must be exercised judicially and in consonance with established principles of law.

Necessary conditions to be satisfied before granting leave for amendment of pleadings

• The amendment of pleadings is necessary for determining the real question of controversy between parties.
• When the court is sure that the nature of case will change by allowing application of an amendment.
• When a new cause of action arises by allowing application of an amendment.
• When amendments of pleadings defeat the law of limitation.
• When the application of amendment is filed to avoid multiplicity of suits.
• When parties in the plaint or written statements are wrongfully described.
• When the plaintiff omits to have some properties to the plaint.

When is amendment refused

• When such amendment is not necessary for the determination of real question of controversy between parties.
• Such amendments which lead to introduction of a totally new case, are rejected.

In Steward v. North Metropolitan Tramways Co. 1886, the plaintiff filed a suit for damages against the tramway company for damages caused by the negligence of the company in allowing the tramway to be in 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 the roadway in proper condition was of the latter and, therefore, the company was not liable. At 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.

• When the plaintiff for defendant is negligent.
• When proposed amendments is unjust.
• When application for amendments of pleading violates the legal rights or cause injustice to the other party.

Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour. As a general rule, every amendment should be allowed if it can be made without prejudice or injustice to the other side, and one of the classes of cases wherein the amendment may work injustice to the opposite party is where it takes away from a party a right accrued to him by lapse of time. Therefore, in absence of special circumstances such an amendment should not be allowed by the court.

The English case on the subject is Weldon v. Neal 1887. In that case, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment. At the date of the application, those claims were barred by limitation though they were within the period of limitation at the date of the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him.

• Amendment is also refused when it leads to needless complications in the case, or when there has been excessive delay by the parties in filing the suit.
• Application for amendment of pleading will not be allowed by the court it is made with mala fide intentions or where the application for amendment is not made in good faith. As a general rule, leave to amend ought not to be granted if the applicant has acted mala fide. Want of bona fides may be inferred from the circumstances of the case. When there is no substantial ground for the case proposed to be set up by the amendment, or the object is to defeat or delay the plaintiff’s claim, or merely to reagitate the same question and lead further evidence, the amendment was not granted as not being bona fide.
• Situation where several opportunities are given to the parties to apply for amendment of pleadings, but they had failed to make an application.
• Amendments should be refused 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.

Procedure for filing application for amendment

 To maintain balance between the parties of plaintiff and defendant both. Court should have to determine what will be the effect of amendment on the opposite party.

1. The plaintiff for defendant who wants to amend its pleadings can approach the concerned civil court with an application for amendment.
2. He is required to pay the relevant court fees as per the Court Fees Act, 1870.
3. Applicant needs to tell the purpose of the alteration in his application.
4. Judge will read the application and if he thinks fit that this amendment is necessary for the purpose of determining the real question in controversy between the parties, then he will grant permission for amendment of pleading.
5. After getting order from the Court, the applicant needs to file new pleadings within the prescribed time and if no time has been prescribed by the Court, then he needs to file it in 14 days from the date of order.
6. The applicant also need to give a copy of his amended pleadings to opposite party.

Who May apply for amendment of Pleadings

Normally, it is the plaintiff or the defendant who may apply for amendment of his pleading i.e. plaint or written statement. Where there are two or more plaintiffs or defendants in a suit, one or more plaintiffs or defendants may make such application.

Who may grant amendment?

Ordinarily, it is the trial court which can grant an application for amendment of plaint or written statement. But an appellate or revisional court can also grant such application for amendment of pleading. Even the Supreme Court may grant an application for amendment of plaint or written statement in an appropriate case.

Notice to opposite party

When an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an objection against such prayer. An order granting amendment without hearing the opposite party is not legal and valid. But, if the amendment is purely formal or technical in nature, non-issuance of notice is not material. Where the plaint is amended, notice of amended plaint must be served on the defendant.

Recording of reasons

While deciding an application for amendment of pleading, the court must apply its mind and should record reasons for allowing or not allowing the amendment.

Limitation

No period of limitation is prescribed either in the Code of Civil Procedure or in the Limitation Act for making an application for amendment. On the contrary, Rule 17 permits a party to alter or amend his pleading “at any stage” of the proceedings. But it is well ­settled that ordinarily, an amendment of pleading should not be allowed if the effect of such amendment is to deprive a party of a right which he has  acquired by virtue of the law of limitation. The above principle also must be read in the light of proviso to Rule 17 inserted by the Amendment Act of 2002.