Case BriefsSupreme Court

Supreme Court: On the question as to whether Order II Rule 2 CPC can be made applicable to an application for amendment of plaint, the bench of Aniruddha Bose and JB Pardiwala*, JJ has held that Order II Rule 2 of the CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview, and cannot apply to an amendment which is sought on an existing suit.

Power of Courts to allow/decline amendments

It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation.

The courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interest of justice.

Further, the courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn.

Interpretation of Order II Rule 2 CPC

Generally, the term ‘sue’ can mean both the filing of the suit and prosecuting the suit to its culmination, depending on the context of the provision. However, the expressions “omits to sue” and “intentionally relinquish any portion of his claim” in Order II Rule 2 CPC indicate that the legislature thought it fit to debar a plaintiff from suing afterwards for any relief which he/she has omitted without the leave of the court or from suing in respect of any portion of his claim which he intentionally relinquishes. Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.

If the two suits and the relief claimed therein are based on the same cause of action then the subsequent suit will become barred under Order II Rule 2 of the CPC. However, we do not find any merit in the contention raised on behalf of the appellant herein that the amendment application is liable to be rejected by applying the bar under Order II Rule 2 of the CPC. Order II Rule 2 of the CPC cannot apply to an amendment which is sought on an existing suit.

Principles for Amendment of Pleadings

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.

[Life Insurance Corporation of India v. Sanjiv Builders Pvt Ltd, 2022 SCC OnLine SC 1128, decided on 01.09.2022]


*Judgment by: Justice JB Pardiwala

Op EdsOP. ED.

A. Introduction

At what stage does a civil trial commence while applying the proviso to Order 6 Rule 17[1] of the Code of Civil Procedure, 1908 (CPC)? The answer to this question is pending adjudication before the Supreme Court in Anita v. Anil.[2] In its order dated 13-9-2021, the Supreme Court noted two divergent views on this issue. One view is that of the Bombay High Court, and the other of the Calcutta High Court. The Bombay High Court is of the view that the filing of the affidavit in examination of chief would amount to commencement of trial[3] whereas the Calcutta High Court has taken the view that the expression “commencement of trial” in the proviso to Order 6 Rule 17 CPC “would imply the date when the court first applies its mind after the affidavit of evidence is 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”.[4] Both the Bombay and the Calcutta High Courts extensively rely on several Supreme Court judgments to support their respective views.

The purpose of this article, therefore, is to examine and analyse the law laid down by the courts in this regard. The article is divided into 5 parts. Part A is this introduction; in Part B, the author will analyse the certain relevant judgments of the Supreme Court on the issue; in Parts C and D, the author will examine the views of the Bombay and the Calcutta High Courts respectively; and lastly in Part E, the author will conclude this article suggesting certain legislative amendments to the proviso to Order 6 Rule 17.

B. The view of the Supreme Court

1. In Baldev Singh v. Manohar Singh (Baldev Singh),[5] the Supreme Court was considering a challenge against an order of the trial court (which was affirmed by the High Court) rejecting an application for amendment of a written statement.[6]

1.1 The trial court and the High Court rejected the application mainly on three grounds. The first ground was that the since the appellants had made certain admissions in the written statement, the amendment could not be allowed “permitting the appellants to withdraw their admission”.[7] The second ground was that “the question of limitation” could not be raised by way of an amendment and the third ground was that “inconsistent pleas in the written statement” could not be allowed to be raised by an amendment.[8]

1.2 The Supreme Court confined its judgment only to ground number two and three, namely, (a) on the question of limitation[9]; and (b) on inconsistent pleas.[10] However, while concluding its judgment, the Court referred to the proviso to Order 6 Rule 17 and noted that in the facts of the case before it, the trial had “not yet commenced” as the parties had not yet filed their documentary evidence.[11] On coming to the conclusion that the trial had not yet commenced, the Court observed that “commencement of trial” in Order 6 Rule 17 CPC “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”. After making these observations, the Court concluded that in the facts before it, there was no reason to “reject the application for amendment of the written statement” in view of the proviso to Order 6 Rule 17.[12]

1.3 According to the author, the aforesaid observations of the Court on “commencement of trial” would not constitute the ratio of the judgment but would be obiter dicta because this “expression of opinion” by the Court was on a point which was “not necessary for the decision” of the case.[13] As is stated above, the Court had confined its judgment only to the question of limitation and inconsistent pleas and therefore, its observations on “commencement of trial” were not at all necessary to decide the case before it. However, even though the observations in Baldev Singh[14]are obiter, the principle culled out vide these observations could be construed as declaration of law under Article 141 of the Constitution[15] and therefore, cannot be ignored. In Director of Settlements M.R. Apparao[16] (Director of Settlements), the Supreme Court observed:

  1.  … An “obiter dictum” as distinguished from a ratio decidendi is an observation by Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case….

(emphasis supplied)

2. In Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N.,[17](Ajendraprasadji) the Supreme Court was dealing with yet another case challenging leave to amend the written statement on the ground that “the appellants had not been able to show in context of the proviso” to Order 6 Rule 17 that before the commencement of trial, “the appellants could not have raised the matter in spite of due diligence”.[18]

2.1 After examining the facts of the case and the legislative history of Order 6 Rule 17[19], the Supreme Court concluded that the appellant was “precluded by the proviso” to Order 6 Rule 17 from amending the written statement.[20] However, the Supreme Court went on to rely on a previous decision delivered by it in Kailash Nankhu[21] (Kailash). According to the Supreme Court, it had been “held” in Kailash[22] that “the trial is deemed to commence when the issues are settled and the case is set down for recording evidence”.[23] With due respect to the Court, this is an erroneous reading of Kailash[24]. The Supreme Court in Kailash[25] was dealing with an application for condonation of delay in filing a written statement in an election petition filed in the Allahabad High Court.[26] The three questions[27] for determination before the Supreme Court were:

(1) Whether Order 8 Rule 1 CPC[28] is applicable to the trial of an election petition?

(2) Whether the rules framed by the Allahabad High Court governing election petitions would override the provisions of CPC? and

(3) Whether the time-limit of 90 days in the proviso to Order 8 Rule 1 was mandatory or directory?

The Supreme Court thereafter went on to examine the question that arose for consideration, namely, when does a trial of an election petition commence and what is the meaning of “trial” in “the context of an election petition”.[29] During the course of answering this question, the Court observed that “in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence”.[30] This observation is by no means the ratio of this judgment nor is it a principle of law laid down or declared by the Supreme Court. It is merely a passing observation and is not an authority on the point.

3. The next judgment on the issue is Vidyabai v. Padmalatha (Vidyabai).[31] The question involved in Vidyabai[32]was “whether pleadings can be directed to be amended after the hearing of a case begins.”[33] On the question of whether the trial had commenced or not in the case before it, the Court held that the trial had commenced. The relevant portion of the judgment reads thus:

  1. … The question therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. 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, in our opinion, would amount to “commencement of proceeding”.[34]

3.1 It is strange as to why the Court has used the words “commencement of proceeding” and not “commencement of trial” particularly when it had itself posed a question on whether the trial had commenced or not. The word “proceeding” would obviously be different from the word “trial”. The word “proceeding” is much wider in scope that the word “trial”. Nevertheless, the Court in Vidyabai[35]has referred to Ajendraprasadji[36] and Kailash[37]and after referring to both these judgments, the Court stated that the “ratio” in Kailash[38] was reiterated in Ajendraprasadji[39] which stated that “the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence”.[40] As has already been stated earlier, this is not the ratio laid down in Kailash[41] and neither is it obiter dictum. The Supreme Court also referred to several judgments delivered by it including Baldev Singh[42] (referred to above). On referring to Baldev Singh[43], the Court observed that it is “not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing” as in Baldev Singh[44], “the documents were yet to be filed and, therefore, it was held that the trial did not commence”.

3.2 Another judgment that the Court in Vidyabai[45] referred to was Union of India Major General Madan Lal Yadav (Madan Lal)[46] which was dealing with the interpretation of the expression “trial commences” in Section 123(2)[47] of the Army Act, 1950.[48] After referring to the dictionary meaning of the terms “trial” and “commence”, the Supreme Court went onto observe as under:

  1. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with performance of the first act or steps necessary or essential to proceed with trial.[49]

It is submitted that though the Supreme Court in Madan Lal[50] was interpreting the expression “trial commences” in Section 123(2) of the Army Act, the principle of law laid down by the Court was that a trial would mean an “act of proving or judicial examination or determination of the issues” and this exercise would commence with the “first act or step necessary” to proceed with the trial.

4. Vidyabai[51]has subsequently been referred to in a recent judgment of the Supreme Court in Mohinder Kumar Mehra v. Roop Rani Mehra (Mohinder Kumar)[52] which dealt with a challenge to an order rejecting an application for amendment of plaint under Order 6 Rule 17.[53] After examining the various judgments on the issue, the Court observed that after “issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences”.[54]

C. The view of the Bombay High Court 

  1. In an important judgment delivered on a reference made to a Division Bench of the Bombay High Court in Mahadeo v. Balaji[55](Mahadeo), the High Court had to examine two questions: (i) whether a trial of a suit commences on the date of framing issues or from the date of filing of affidavit in lieu of examination-in-chief; and (ii) whether the proviso to Order 6 Rule 17 is attracted after framing of issues or after filing of affidavits lieu of examination-in-chief.[56] The High Court referred to Vidyabai[57], Ajendraprasadji[58], Kailash[59] and Madan Lal[60]as well as the expressions “proved”, “disproved” and “not proved” in Section 3 of the Evidence Act, 1872[61] and stated as under:

“10. … Thus, it can be seen that when the issues are framed there is no engagement of judicial mind in the exercise of weighing the material before it in order to assess its worth. What is actually done is to narrow down area of dispute and pinpoint the points required to be determined by the Court. In the words of the learned Single Judge the issues are framed in order to navigate the direction in which the trial shall proceed so as to give a clear idea to the parties regarding the burden of proof each one will have to bear and consequently about the right to begin with trial.”[62]

(emphasis supplied)

 On the stage when the trial commences, the High Court stated,

“11. … A first act or step taken to prove, on [sic] disprove the facts in a suit, therefore, can be seen as the commencement of trial in a civil suit. Unmistakably, therefore, filing of an affidavit in lieu of examination-in-chief by the plaintiff can be regarded as first act or step taken by the plaintiff to prove his case, and consequently it can be regarded as commencement of a trial.”[63]                                                                                                                                                                                                                                                (emphasis supplied)

After laying down the law in the aforesaid terms, the High Court answered the reference by holding that “the trial in a civil suit commences from the date of filing of affidavits in lieu of the examination-in-chief of the witnesses” and the proviso to Order 6  Rule 17 CPC will come into play only after filing of the affidavits in lieu of examination-in-chief of witnesses.[64]

2. In another judgment delivered by the Single Bench of the Bombay High Court in Maratha Market People’s Cooperative Bank Ltd. v. Jeejaee Estate (Jeejaee Estate),[65] the High Court again dealt with the very same question. Though the High Court referred to Vidyabai[66] and Mohinder Kumar[67], it appears that the Division Bench judgment in Mahadeo[68] was not brought to the attention of the Single Bench. The Single Bench eventually held that “the trial commences (as contemplated under the proviso appended to Order 6 Rule 17CPC) when the first affidavit of evidence is filed”.[69] This view of the Single Bench, to an extent varies with the view of the Division Bench in Mahadeo[70], which had held that the trial commences from the date of filing of affidavits in lieu of the examination-in-chief of the witnesses.[71] While the Division Bench has stated that affidavits (plural) of evidence would be the stage of commencement of trial, the Single Bench has held that the trial commences from the date of filing the first affidavit of evidence. Therefore, it is respectfully submitted that the decision of the Court in Jeejaee Estate[72] is per incuriam as the Division Bench judgment of Mahadeo[73] was not considered by it. Mahadeo[74] had extensively referred to, relied on, and interpreted various decisions of the Supreme Court including Vidyabai[75] and thereafter came to a conclusion. If the Single Bench had noticed this judgment, it would have been bound to follow it.

3. Incidentally, Mahadeo[76] had been followed by another Single Bench of the Bombay High Court in Anil v. Anita,[77]whose order has been challenged before the Supreme Court by the respondent in Anita v. Anil[78] referred to in Part A of this article.

D. The view of the Calcutta High Court

1. In Sree Sree Iswar Radha Behari Jew v. Malati P. Soni[79] reference was made to the Division Bench of the High Court by a Single Bench on the following issue:

  1. … Whether, in view of Vidyabai Padmalatha[80], “commencement of trial”, as envisaged in the proviso to Order 6 Rule 17 of the Code of Civil Procedure, would mean the date of first hearing, that is, the date of framing of issues, or the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments?

2. The High Court conducted a threadbare analysis of Vidyabai82 and the judgments referred to in Vidyabai[81] including Madan Lal[82], Kailash[83], Baldev Singh[84], Mohinder Kumar[85], Ajendraprasadji[86]. Reference was also made to the Bombay High Court judgment of Mahadeo[87]. As far as the observations in Kailash[88] on commencement of trial[89], the High Court rightly observed that this observation in Kailash[90]is not the ratio decidendi of the judgment; but the High Court further went on to state that the observations in Kailash[91]are obiter and are of “great persuasive value”.[92] However, in the author’s view, as has been mentioned earlier in Part B, the observation in Kailash[93]on commencement of trial is a stray observation and cannot even been considered as obiter dicta.

3. The High Court then went onto opine that there is a “distinction between when the trial stage commences in the life of a civil suit and when the trial actually commences” within the meaning of the proviso to Order 6 Rule 17.[94] According to the High Court,

  1. … Ordinarily, the trial stage commences in a suit immediately upon the issues being determined. However, it is not immediately thereupon that the trial in a suit commences in right earnest and the commencement of the trial is only when any witness takes to the box, whether to prove his affidavit of evidence or to prove any document to be tendered into evidence or to face any cross-examination for, it is at this stage that the court applies its judicial mind to examine the evidence or to consider whether a particular document is to be received in evidence or to consider the permissibility of the questions put in cross-examination. It is also open to the court to put its own questions to the witness; and, when the court does so, it surely applies its mind for the purpose of assessing the merits of the lis.[95]

4. The High Court further opined that a reading of Madan Lal[96]and Baldev Singh[97] that were relied on in Vidyabai[98] would imply that commencement of trial would be “something more than the mere receipt of any affidavit of evidence since the filing of such affidavit does not result in the court immediately examining it or applying its judicial mind to the same”.[99] The commencement of trial “is when the court applies its mind to assess the lis after the first affidavit of evidence is filed”.[100]

5. The High Court therefore, finally answered the reference by holding that “the expression ‘commencement of trial’ in the proviso to Order 6 Rule 17 of the Code of Civil Procedure would imply the date when the court first applies its mind after the affidavit of evidence is 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”.[101]

E. Concluding comments

  1. In the author’s opinion, the view of the Calcutta High Court is correct and that of the Bombay High Court is incorrect. In a civil proceeding, only the battle lines are drawn with the framing of issues and the filing of evidence affidavits. It is only when the witness steps into the witness box that the real charge begins by the counsel. This is when the trial starts.
  2. It is important to note that the purpose behind allowing amendments to pleadings is to avoid multiplicity of proceedings. However, at the same time, the parties cannot misuse the provisions of procedural law to delay a trial and the administration of justice. To remedy its misuse, Order 6 was initially amended in 1999[102] by deleting Rules 17 and 18 altogether to order to shorten the duration of litigation and increase the speed of the trial.[103] However, Rules 17 and 18 was restored once again in 2002[104] by inserting a proviso prohibiting amendments to pleadings after the trial had commenced unless the court concluded that despite due diligence, the amendment could not take place before the trial commenced.
  3. However, in the absence of a clear and definitive pronouncement by the Supreme Court on when a civil trial commences for the purpose of Order 6 Rule 17, the meaning of the expression “commencement of trial” would always be subject to different interpretations by the courts depending on the facts of each case before it. Therefore, in the author’s opinion, to remedy this situation, the legislature must up its game and make the following amendments to Order 6 Rule 17:

i) adding an Explanation after the proviso to Order 6 Rule 17, defining the expression commencement of trial,

or;

ii) amending the proviso to Order 6 Rule 17 by replacing “trial has commenced” and “commencement of trial” with “issues are framed” and “framing of issues”. In other words, amendment of pleadings should not be permitted after the issues are framed. An Explanation could be added clarifying that framing of issues would also mean and include framing of additional issues and recasting of issues under Order 14 Rule 5.[105]

The aforementioned suggested amendments may narrow the scope of disagreement on the interpretation of the expression “commencement of trial” and would also facilitate a faster conclusion of a trial.


*Practising Advocate at Bombay High Court and National Company Law Tribunal, Mumbai. Author can be reached at Twitter @DormaanD.

[1]Civil Procedure Code, 1908, Or. 6 R.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.

[2] 2021 SCC OnLine SC 3250.

[3]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 16.

[4]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 38.

[5](2006) 6 SCC 498.

[6]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 500, para 2.

[7]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502, para 11.

[8]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502, para 11.

[9]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 502-504, paras 12-14.

[10]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 504, paras 15 and 16.

[11]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 504, para 17.

[12]Baldev Singh v. Manohar Singh, (2006) 6 SCC 498, 505, paras 17-18.

[13]Mohandas Issardas v. A.N. Sattanathan, 1954 SCC OnLine Bom 84.

[14](2006) 6 SCC 498.

[15]Constitution of India, Art. 141.

[16](2002) 4 SCC 638, 650-651.

[17](2006) 12 SCC 1.

[18]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 4, para 2.

[19]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 13, paras 33 to 36.

[20]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 14, 15-18, paras 41, 44-55.

[21](2005) 4 SCC 480.

[22](2005) 4 SCC 480.

[23]Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N., (2006) 12 SCC 1, 19, para 60.

[24](2005) 4 SCC 480.

[25](2005) 4 SCC 480.

[26]Kailash v. Nankhu, (2005) 4 SCC 480, 486-487, para 2.

[27]Kailash v. Nankhu, (2005) 4 SCC 480, 487, para 5.

[28]Civil Procedure Code, 1908, Or. 8 R. 1.

[29]Kailash v. Nankhu, (2005) 4 SCC 480, 490-491, para 13.

[30]Kailash v. Nankhu, (2005) 4 SCC 480, 490-491, para 13.

[31](2009) 2 SCC 409.

[32](2009) 2 SCC 409.

[33]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 411, para 2.

[34]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 413, para 11.

[35](2009) 2 SCC 409.

[36](2006) 12 SCC 1.

[37](2005) 4 SCC 480.

[38](2005) 4 SCC 480.

[39](2006) 12 SCC 1.

[40]Vidyabai v. Padmalatha, (2009) 2 SCC 409, 415, para 15.

[41](2005) 4 SCC 480.

[42](2006) 6 SCC 498.

[43](2006) 6 SCC 498.

[44](2006) 6 SCC 498.

[45](2009) 2 SCC 409.

[46](1996) 4 SCC 127.

[47]Army Act, 1950, S. 123(2)

  1. (2). No such person shall be tried for an offence, unless his trial commenceswithin a period of three years after he had ceased to be subject to this Act; and in computing such period, the time during which such person has avoided arrest by absconding or concealing himself or where the institution of the proceeding in respect of the offence has been stayed by an injunction or order, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded:

Provided that nothing contained in this sub- section shall apply to the trial of any such person for an offence of desertion or fraudulent enrolment or for any of the offences mentioned in S. 37 or shall affect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court-martial.

[48]Union of India v. Major General Madam Lal Yadav, (1996) 4 SCC 127, 135-136, paras 13 to 19.

[49]Union of India v. Major General Madal Lal Yadav, (1996) 4 SCC 127, 136.

[50](1996) 4 SCC 127.

[51](2009) 2 SCC 409.

[52](2018) 2 SCC 132.

[53]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 135, para 1.

[54]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 139,  para 17.

[55]2012 SCC OnLine Bom 1283.

[56]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 1.

[57](2009) 2 SCC 409.

[58](2006) 12 SCC 1.

[59](2005) 4 SCC 480.

[60](1996) 4 SCC 127.

[61]Evidence Act, 1872, S. 3,

Proved”.––A fact is said to be proved when, after considering the matters before it, the Court; either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved”.––A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Not proved”.––A fact is said not to be proved when it is neither proved nor disproved.

[62]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283.

[63]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283.

[64]Mahadeo v. Balaji, 2012 SCC OnLine Bom 1283, para 16.

[65]2019 SCC OnLine Bom 32.

[66](2009) 2 SCC 409.

[67](2018) 2 SCC 132.

[68]2012 SCC OnLine Bom 1283.

[69]2019 SCC OnLine Bom 32, para 14.

[70]2012 SCC OnLine Bom 1283.

[71]2012 SCC OnLine Bom 1283, para 16.

[72]2019 SCC OnLine Bom 32.

[73]2012 SCC OnLine Bom 1283.

[74]2012 SCC OnLine Bom 1283.

[75](2009) 2 SCC 409.

[76]2012 SCC OnLine Bom 1283.

[77]2021 SCC OnLine Bom 1593.

[78]SLP (Civil) No. 13691 of 2021, order dated 13-9-2021. [Pending uploading]

[79]2019 SCC OnLine Cal 9113, para 2.

[80](2009) 2 SCC 409.

82(2009) 2 SCC 409.

[81](2009) 2 SCC 409.

[82](1996) 4 SCC 127.

[83](2005) 4 SCC 480.

[84](2006) 6 SCC 498.

[85](2018) 2 SCC 132.

[86](2006) 12 SCC 1.

[87]2012 SCC OnLine Bom 1283.

[88](2005) 4 SCC 480.

[89](2005) 4 SCC 480.

[90](2005) 4 SCC 480.

[91](2005) 4 SCC 480.

[92]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 19.

[93](2005) 4 SCC 480.

[94]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 32.

[95]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113.

[96](1996) 4 SCC 127.

[97](2006) 6 SCC 498.

[98](2009) 2 SCC 409.

[99]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 33.

[100]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 36.

[101]Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, 2019 SCC OnLine Cal 9113, para 38.

[102]Vide S. 16 of the Civil Procedure Code(Amendment) Act, 1999.

[103]Mohinder Kumar Mehra v. Roop Rani Mehra, (2018) 2 SCC 132, 138, para 14.

[104]Vide S. 7 of the Civil Procedure Code (Amendment) Act, 2002.

[105]Civil Procedure Code, 1908, Or. 14 R. 5

Power to amend, and strike out, issues.—(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G.Arun, J., held that no amendment can be allowed in written statement where it seeks to change former admissions.  The Bench stated,

 “Even the most liberal approach towards amendment of written statements will not justify the approval of such an application.”

Background

The petitioner was the defendant in a suit filed for seeking to cancel two assignment deeds registered by the respondent in favour of the petitioner. After the petitioner filed his written statement, the respondent amended the plaint. Though the petitioner filed additional written statement, subsequent interlocutory application was filed by him seeking to amend the written statement.

The Plaintiff opposed the application, contending that the amendment was totally misconceived and filed only for the purpose of protracting the suit. The Trial Court dismissed the amendment application, holding that the attempt of the petitioner was to withdraw the admissions in the written statement and to incorporate new contentions. The Trial Court also found the petitioner guilty of wanton negligence and callousness.

The petitioner assailed the findings of Trial Court and submitted that the purpose of amendment was to withdraw certain portions from the written statement and to incorporate identical averments with minor modifications and the amendment was only clarificatory in nature.

Amendment in Question

The amendment was sought with regard to change in percentage of share from 22.5% to 32.5% and payment in the name of the power of attorney of the defendant to payment to the defendant and the term ‘adjustment’ was sought to be replaced with ‘payment’.

Opinion of the Court

Noticeably, even in the lengthy explanations in the additional written statement, the petitioner had not mentioned about the contentions now sought to be incorporated. Therefore, differentiating Pavithran, wherein it had been held that “if an admission could be explained away or can be rescinded or superseded, there cannot be any prohibition against such admission being allowed to be taken away by amending the pleading”, the Bench stated that had the attempt of the petitioner been to only explain or clarify the admission the aforementioned decisions would have applied, on the contrary, the attempt was to withdraw the admissions and set forth an entirely new case.

Reliance was placed by the Court on Modi Spinning and Weaving Mills (supra), wherein the Supreme Court had held that the defendant cannot be permitted to change his case completely and substitute an entirely new case. The Bench remarked,

“The amendments would, not only have the effect of the defendant making inconsistent and alternative pleadings, but also of completely displacing the admissions made in the written statement.”

Though the petitioner had been permitted to file additional written statement, he waited till the case was listed for trial before filing the second amendment application. Moreover, there was no dispute to the fact that the amendment application was filed after the plaintiff had submitted his affidavit in lieu of chief examination. Therefore, the Bench stated that it was incumbent upon the petitioner to have satisfied the Trial Court that he could not have filed the application earlier, in spite of due diligence.

Noticing that the affidavit in lieu of chief examination was filed prior to the filing of application for amendment and the Bench held that even if it was accepted that the application was filed before the date fixed for leading evidence, the interdiction in the proviso to Order VI Rule 17 would apply.

The suit was included in the provisional list for the month of August, 2021 on the request of the plaintiff, since he was working abroad. The plaintiff had come down for the purpose of giving evidence and also submitted his affidavit in lieu of chief examination. The amendment application was filed thereafter, just prior to the date fixed for trial. Being so, the Bench was of the view that substantial loss was caused to the plaintiff by the conduct of the petitioner.

Accordingly, it was held that the Trial Court was fully justified in rejecting the application. [Muhammed Ashraf v. Fasalu Rahman, OP(C) No. 1374 of 2021, decided on 10-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Petitioner: Advocate R. Sudhish and Advocate M. Manju

For the Respondent: Advocate K.M. Firoz and Advocate M. Shajna

Case BriefsHigh Courts

Bombay High Court: Milind N. Jadhav, J., addressed a matter with regard to the amendment of pleadings.

Petitioners have submitted that they are aggrieved with the Orders passed by Civil Judge, Junior Division on 17-11-2016.

Factual Matrix

Petitioners were the original defendants and respondents the legal heirs of the original plaintiff. Original Plaintiff had filed the Civil Suit against the defendants for permanent injunction in respect of the suit property. Since the original plaintiff expired in 2015, his legal heirs are present respondents.

Petitioners objected to the amendment proposed in regard to the fact that since the original defendant had expired in 2014, hence his legal heirs (present petitioners) were required to be brought on record.

The said amendment was objected to on the ground of maintainability and limitation.

It was added that, if the amendment would be allowed it would change the nature of the suit and a completely different relief would be introduced.

With regard to the limitation, it was stated that the cause of action to see the relief arose in the year 2008 and the application was filed after a period of 8 years.

Analysis, Law and Decision

Bench referred to the provision of Order 6 Rule 17 related to the amendment.

Order VI Rule 17:

“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.”

Court’s Power regarding Amendment of Pleadings

Court noted that though the Courts have very wide discretion in the matter of amendment of pleadings, Court’s power must be exercised judiciously and with great care while deciding the applications for amendment.

What does the Court need to consider while granting amendment?

Principal Condition: It is required to be considered by the Court, whether the grant of the amendment is necessary for the determination of the real controversy in the suit.

The above condition is the basic test to govern the Court’s discretion on granting or refusing amendment.

With respect to refusal or grant, the Supreme Court’s decision in Revajeetu Builders & Developers v. Narayanswamy & Sons (2009) 10 SCC 84, has to be taken into consideration.

Bench in view of the above discussion accepted the petitioner’s submissions.

Barred by Law of Limitation

Amendment has been sought after 8 years from the denial of the title. Under the provisions of Article 58 of the Limitation Act, 1963, the maximum period of limitation allowed is 3 years and thus, the action on the part of the respondents (plaintiffs) was clearly barred by the law of limitation.

Since the original suit was a suit simpliciter seeking an injunction, the amendment sought to seek declaratory relief of title could not have been allowed and granted.

Applying the principles laid down in clause (c) and (d) of the Supreme Court decision in Anathula Sudhakar v. P. Buchy Reddy (dead) by LRs., (2008) 4 SCC 594, it can be summarized that respondents’ (plaintiffs) application filed on 25-10-2016 after a time gap of almost 8 years was far beyond the allowable limitation period and was clearly barred by law of limitation.

Adding to the above, it was stated that relief of seeking declaratory title alters the nature of original suit for injunction. Hence the application being allowed for amendment needs to be set aside.[Eknath Nivrutti Hegadkar v. Aagatrao Dyanu Ghodake, 2021 SCC OnLine Bom 770, decided on 01-6-2021]


Advocates before the Court:

Mr. Surel S. Shah for the Petitioners

Mr. Prasad Kulkarni for the Respondents

Case BriefsHigh Courts

Sikkim High Court: Meenakshi Madan Rai, J., while allowing the application made for the amendment of pleadings, held “The proposed amendment, in my considered opinion, in no manner causes any prejudice to the answering Respondent neither does it change the nature and character of the Petition or the reliefs sought.”

Counsel for the petitioner submitted that the amendment sought in the present application is necessary for the purpose of determining the real question in controversy and further placed reliance on the case of Estralla Rubber v. Dass Estate (P) Ltd, (2001) 8 SCC 97. Objecting the same, Advocate General submitted that after the repatriation order was issued by the Government the Petitioner has joined his original Department, that is, Education Department, and consequently nothing further remains for adjudication in the matter. However, if this Court be inclined to allow the amendment it should not prejudice the rights of the Respondent to take up the grounds of waiver and acquiescence at the hearing. To substantiate his submission, Advocate General relied on P.S. Gopinathan v. State of Kerala, (2008) 7 SCC 70.

Taking into consideration the due submissions, the Court allowed the application seeking amendment, reiterating that unless the amendment sought affects the right vested with the opposite party, the same shall be allowed provided there was no opportunity of raising it at an earlier stage.[Santosh Dong v. State of Sikkim, 2020 SCC OnLine Sikk 205, decided on 10-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J., dismissed a petition filed against the order of the trial court whereby it had rejected the petitioner-defendant’s application under Order 6 Rule 17 CPC (amendment of pleadings) seeking amendment in their written statement.

The instant suit which was filed for specific performance in 2005 had a long and chequered history. The petitioner, in 2006, had filed an application for impleadment which was initially dismissed. However, later the Division Bench of the High Court allowed it and provided a limited right to the petitioner to file a written statement to participate in the proceedings. Subsequently, the petitioner had filed an application under Order 6 Rule 17 at the time when the plaintiff’s evidence had been commenced. This application was rejected by the trial court.

Ratnesh Bansal, Advocate appearing for the petitioner, sought to urge that the amendment which was sought now had arisen because some questions were not permitted to be put to the plaintiff’s witness in cross-examination. Per contra, Rajiv Garg, Ashish Garg and L.S. Rana, Advocates representing the plaintiff, vehemently opposed the application for amendment.

The High Court noted that initially the petitioner was given a restricted right to file a written statement but the written statement which was filed was beyond the liberty given by the Court. That led to considerable delay in the matter. The evidence by the plaintiff commenced in 2017 and concluded in 2018. Though the application for amendment was filed in 2017, it seemed to have been urged and pressed only after the cross-examination of the plaintiff’s witnesses has concluded.

Notably, the proviso to Order 6 Rule 17 states:

“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.”

Perusing the record and considering the submissions made the parties, the High Court held that the written statement being sought to be amended now was not only hopelessly barred but was also beyond the liberty which was initially granted. The trial court, therefore, rightly dismissed the application for amendment. After the conclusion of the plaintiff’s evidence, such an amendment could not be permitted in view of the proviso to Order 6 Rule 17 CPC. [Naresh Kumar v. Meer Singh, 2020 SCC OnLine Del 398, decided on 28-01-2020]

Case BriefsHigh Courts

Himachal Pradesh High Court: Chander Bhusan Barowalia, J. contemplated a petition filed under Article 227 of  Constitution of India for quashing and setting aside the order passed by Civil Judge of dismissing the application under Order 6 Rule 7 i.e. for ‘Amendment of Pleadings’ read with Section 151 of CPC.

Factual matrix of the case was that the plaintiff maintained a suit for permanent prohibitory injunction, and sought to restrain the defendants from interfering in any manner, taking forcible possession, installed the electric pole and also restrained them from putting the electrical wires and changing the nature of suit land.

The defendants contested that the electric poles erected on the side of the road near the boundary of the land of the plaintiffs and in the presence of the parties. It was submitted that the electric pole, which had been installed by the Electricity Department will not cause any hindrance to the land of the plaintiffs and after the electricity wire was attached, any obstruction or hindrance was not caused to the plaintiffs.

During the pendency of suit, plaintiffs maintained an application, under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure, for amendment of the plaint on the grounds that the defendants in connivance with each other forcibly erected poles and laid wires on it but, the said application was dismissed by the learned Civil Court.

Kulwant Chauhan, counsel for the petitioners submitted that the amendments were required to be allowed in order to properly adjudicate the case it was necessitated for the reason that after the filing of the present suit, defendants had erected the electric pole on the suit land and now, it was required to be added. In support of his arguments, he had relied upon the judgment in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 and contended that the application can be filed at any stage of the suit and the learned Courts are also required to allow the same, to meet the ends of justice. It was held that, “the same is not applicable to the facts and circumstances of the present case, a serious prejudice would be caused to the respondents in case, the application is allowed, at this stage, as the factum is with respect to the laying of electric lines under the Electricity Act and plaintiffs have waited for five years, even after having knowledge of erection of the electric pole in making the application for amendment.”

On the contrary, the counsel for the defendants Pawan Gautam and Suman Bhitmta, contested that petition was not maintainable, as the application was filed quite late before the learned Court below. He argued that as per the petitioner himself, electric pole erected in the year 2011 and now, the application had been filed, at the belated stage. He further argued that there was no case made out in favor of the petitioners to allow the present petition.

The Court found that the instant petition was maintained for an injunction and to restrain the defendants. It was further noted that the defendants had installed the pole and further an application for amendment was maintained in the year 2016. It was noted that though the application is filed after a long span of time but the question raised in the instant petition was different and the same cannot be allowed at the present stage of proceedings. It was held that “From the perusal of record which shows that the present suit has been maintained on 19.10.2011, at that time, defendants have started digging the pit for installation of electric poles and are threatening to install the same over the suit land. At that time, the averments of the plaintiff have been contested by defendants No.4 to 8 by filing written statement on 27.12.2011 by alleging that the electric poles were already erected in the month of May, 2011 i.e. on the road side near the boundary of the land of the plaintiff.”

If it was presumed that the electric poles were erected after the institution of the suit land in 2011, what prevented the plaintiff from moving an application for amendment of the plaint has not been mentioned by the applicant in his pleadings? It was settled law that the provisions of Order 6 Rule 17 have to be applied more liberally qua the written statement viz-a-viz plaint. Hence the petition was dismissed as the amendments were sought after 5 years and was sleeping over his rights.[Kishori Lal v. Darshan Kumar, 2019 SCC OnLine HP 1401, decided on 30-08-2019]

Case BriefsHigh Courts

High Court of Madhya Pradesh, Jabalpur: The Court recently ruled over a petition against the order of the lower court to allow an amendment in plaint under Order 6 rule 17 CPC. The petitioners’ counsel criticizing the order submitted that they had preferred an amendment application keeping in mind the subsequent action of the other side to take an illegal possession of the suit land and there was need to make amendment to the plaint because, now the petitioner needed to plead against unauthorized possession and had to seek relief of restoration of possession.

However, the court below had rejected the application on the strength of the report of the Court Commissioner and the stand of the defendants. The counsel for petitioners further contended that the question before the trial court was not relating to the merits and demerits of the case, but only thing which was required to be seen was whether amendment application was based on subsequent event or not whereas the court dealt only with the merits of the case. On the other hand, counsel for the respondents relied only on the report of the Court Commissioner.

On hearing both the parties, Sujoy Paul, J. observed that a plain reading of amendment application makes it clear that it is based on the alleged subsequent event whereas the court below rejected it without looking into the necessity of amendment or subsequent events that took place, but relied only on commissioner’s report of which the provision doesn’t talk about at all. The Court further referred to the locus classicus of Sampath Kumar v. Ayyakannu,  (2002) 7 SCC 559 in the matter of amendments in civil cases in which the Apex Court had opined that an amendment, based on subsequent event is permissible and such an amendment may be necessary to avoid multiplicity of proceedings.

The Court tested the instant case at the anvil of the above-mentioned case and held that the trial court had missed the real point and did not take any pains to see the effect of amendment application on the basis of subsequent events. Allowing the petitions, it finally directed the court below to rehear the parties on the amendment application and decide it afresh in accordance with law. [Ashok Jain v. Ruchita Agnihotri,  2017 SCC OnLine MP 1361, decided on 24.11.2017]