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.
A plain reading of the aforesaid provision makes it clear that Order VI Rule 17 of the CPC confers a discretionary power upon the Court to permit amendments which are necessary for determining the real questions in controversy between the parties. However, once the trial has commenced, the exercise of such power is subject to the additional requirement that the Court must be satisfied that despite due diligence, the party could not have raised the matter before the commencement of trial. The object of the provision is to enable the Court to effectively and completely adjudicate upon the dispute between the parties, while at the same time, ensuring that a party does not introduce at a belated stage, matters which could, with due diligence, have been raised earlier.
Court consider following points while granting permission for amendments in pleadings :
(i) Whether the amendment is necessary for determining the real question in controversy and
(ii) Whether it can be allowed without causing injustice or prejudice to the opposite party.
Appellants will have to show that despite due diligence, the matters now sought to be introduced could not have been raised before the commencement of the trial.
An amendment which introduces a new case or a new cause of action is generally impermissible, particularly where the new claim is barred by limitation. At the same time, where the amendment does not introduce a new cause of action or a different case, but merely sets out a different or additional approach to the same facts, such amendment may be permitted. The Court thus drew a distinction between an amendment introducing a new cause of action and one which merely elaborates or alters the approach to the case already pleaded.
The Court is required to determine whether the proposed amendment is necessary for deciding the real question in controversy between the parties, while ensuring that such amendment does not cause injustice or prejudice to the opposite party.
All amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.
Some basic principles 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.
(7) 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.
(8) 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.
(9) 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.
(10) 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.
(11) 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.
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.
Where the question of limitation is itself arguable and depends upon disputed facts, including the date or manner in which the plaintiff acquired knowledge of the relevant document or transaction, the amendment need not necessarily be rejected at the threshold.
There is no absolute rule that an amendment must be rejected merely because the relief sought by way of amendment is alleged to be barred by limitation; the question has to be considered in the facts and circumstances of each case.
The respondents shall remain at liberty to raise the plea of limitation before the trial Court, which shall consider the same in accordance with law.
While considering an application for amendment, courts should adopt a liberal approach and should not be unduly concerned with technicalities.