â17. Amendment of pleadings.â
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.â
Case Law Reference
1. Eapen Antonyv. Joseph,ILR 2009(1) Ker.712
It was held that if the exception to the first part of the proviso is satisfied and the Court comes to the conclusion that in spite of due diligence, the party could not raise the matter before commencement of the trial, it does not restrict the power of the Court to allow the amendment even after closure of the evidence. In such a case, the main part of Rule 17 empowering the Court to allow amendment at any stage of the proceedings will come into operation. It was also held that only on the ground that the Court has power to allow amendment of pleadings even after the closure of evidence, it cannot be said that the plaintiff would have unrestricted rights to apply for amendment of the pleadings.
2. Salem Advocate Bar Association, T.N.v. Union of India, (2005) 6 SCC 344
The Supreme Court held that if the application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial.
3. Sajjan Kumarv. Ram Kishan, (2005) 13 SCC 89
An application for amendment of the description of the suit property was allowed at the final stage of the litigation. The Supreme Court held that the proposed amendment was necessary for the purpose of deciding the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution, even if the plaintiff gets a decree.
4. Chander Kanta Bansalv. Rajinder Singh Anand, (2008) 5 SCC 117
It was held that the proviso to Rule 17 of Order VI of the Code of Civil Procedure, to some extent, limits the scope of amendment of pleadings, but it would still vest enough powers in courts to deal with unforeseen situations whenever they arise. Therefore, it is not a complete bar to entertain an application after the commencement of trial.
5. M.P.Rajasekharan Nairv. Raju,(2003 (2) KLJ 847
A Division Bench of Kerala HighCourt, relying on the decisions of the Supreme Court inheld as follows:-
ââ¦.The question that is posed for consideration is whether the proviso added to Order 6 Rule 17 would bar the amendment of pleadings. Once the suit has been listed for trial such an amendment could be allowed only if 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. We are of the view the plaintiff is seeking amendment of the plaint not to incorporate a fresh cause of action or to change the character of the suit. Plaint when drafted due to an oversight by the lawyer omitted to incorporate an important averment of readiness and willingness. Fact that such an averment was not taken was noticed only when the vakalath was changed and new counsel was engaged. We are of the view by allowing the amendment no new cause of action is sought to be introduced by the plaintiff. Even if such an averment has been incorporated plaintiff has to prove that he was ready and willing to perform his part of the contractâ¦..â
See Also:
6. Gajanan Jaikishan Joshiv. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166
7. Lakhi Ramv. Trikha Ram, AIR 1998 SC 1230
8. Dasanv. Sasi, 2011 (2) KLT 381
It was held that in the case of a suit for specific performance of a contract for transfer of immovable property, the plaintiff can be permitted to amend the plaint to incorporate a prayer for possession under Section 22 of the Specific Relief Act. It was also held that the rigour of the proviso to Rule 17 of Order VI of the Code of Civil Procedure would not as such apply in cases where proviso to Section 22(2) of the Specific Relief Act applies.
9. Rajkumar Gurawarav. S.K.Sarwagi & Company Private Limited,(2008) 14 SCC 364
The Supreme Court held thus:-
â13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.â
10.Ravejeetu Builders and Developersv. Narayanaswamy and Sons,(2009) 10 SCC 84
The Supreme Court, on an analysis of the English and Indian cases, held as follows:-
â63. On critically analysing 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. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.â
The Supreme Court also considered the question of limitation in the matter of considering the application for amendment of the plaint and it was held thus:-
â39. The rule, however, is not a universal one and under certain circumstances, such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed or refused, but it does not affect the power of the court if the amendment is required in the interests of justice.â
See Also
11. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126: (1974) 2 SCC 393: (1974) 3 SCR 882
12.Arundhati Mishra v. Ram Charitra Pandey,(1994) 2 SCC 29
13. Chander Kanta Bansalv. Rajinder Singh Anand, AIR 2008 SC 2234 :(2008) 5 SCC 117
It was held thus:-
â10. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the otherâs case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.â
{All the above referred cases arequoted from a recent judgment of the Kerala High Court in the matter ofMohanan Nair Vs. Premachandran Nairdated28 October, 2014 authored by Justice K.T. Sankaran}
