Amendment
in plaint
PLAINT
Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedy from court for the redressal of his grievances.
Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedy from court for the redressal of his grievances.
Amending the Pleadings and the approach of the Judiciary
The most challenging problem facing the administration of
justice in India is the backlog and resulting delay in criminal and civil cases
at every level, from the lower courts to the Supreme Court. One of the
provisions which contribute to it is provision related to amendment of
pleadings given in Order VI, rule 17 of the Code of Civil Procedure.
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. Rule 17 of Order VI deals with the provision of amendment of the plaint.
Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An amendment can be by way of altering something, modifying something, deleting something.
Order VI Rule 17 reads as under:
"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."
Essentials of pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. Order 6 of the Civil Procedure Code, 1908 deals with pleading in general. A plaint is the first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. It can be seen that Rule 1 defines pleading; Rule 2 lays down the fundamental principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.
Amendment of pleadings
The Court may at any stage of the proceedings allow both 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 comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
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”.
Leave to amend when granted
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.
“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”.
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; 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.
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. Rule 17 of Order VI deals with the provision of amendment of the plaint.
Order VI, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings. Pleadings are the case of the Plaintiff or the Defendant in Plaint and Written Statement respectively. An amendment can be by way of altering something, modifying something, deleting something.
Order VI Rule 17 reads as under:
"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."
Essentials of pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, such as a complaint, a demurrer, or an answer. Order 6 of the Civil Procedure Code, 1908 deals with pleading in general. A plaint is the first document that initiates the pleading and thus, a lawsuit. A plaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief. It can be seen that Rule 1 defines pleading; Rule 2 lays down the fundamental principles of pleading. Rules 3 to 13 require the essential particulars to be supplied by parties.
Amendment of pleadings
The Court may at any stage of the proceedings allow both 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 comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
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”.
Leave to amend when granted
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.
“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”.
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; 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 to amend when refused
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 partie. 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. 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, 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 to take away from the other side a legal right accrued in his favor . 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. 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 triable issue.
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