Ansari Solicitor Firm


The amendment of pleadings can be done under Order 7 Rule 17, the court may at any stage of proceeding allow either of party to amend or alter his pleadings in such manner as may be just and all such amendment made as be necessary for determination of real questions in controversy between parties. But proviso has been added by Code of Civil procedure, 2002 that no application shall be allowed after trial had commenced, unless the court comes to conclusion that even after taking due diligence, party could not have raised the matter before commencement of trial.

Before insertion of proviso by Code of Civil procedure, 2002, there has been judicial precedent on granting of leave to amend. In Calcutta High Court decision of Nrising Prasad v. Steel Products Ltd.gave cardinal test for determining whether amendment shall be allowed or not:
(1) The first condition must be satisfied before the amendment that such amendment is necessary for determination of the real question in controversy, if not satisfied then it must not be allowed.
(2) On the other hand, if amendment is necessary to decide “real controversy” between the parties, the amendment should be allowed even though court thinks that party seeking the amendment will not able to prove amended plea.

Thus court may allow amendment for purpose of granting consequential relief as held by Supreme Court in the case of Naduri Yogananda Lakshminarasimhachari v. Agastheswarawamivaru. It may also allow while granting relief on the basis of different approaches on same facts as laid down in A. K. Gupta and Sons v. Damodar Valley Corporation. The other reason could be avoiding multicity of proceedings as held by Apex Court in Paragon rubber Industries v. Pragathi Rubber Mills.

There is also judicial precedent set by Apex Courts where “Leave to amend” has been refused. In the case of Ganga Bai v. Vijay Kumar, held that “The power to allow amendment is undoubtedly wide and may be appropriately exercised in interest of justice , but exercise of far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater care and circumspection on the court”.

The leave to amend can be refused by court on the following grounds:
(1) When leave to amend is not necessary for determining real question in controversy between the parties.
(2) If it introduces a totally different, new and inconsistent case or changing of fundamental character of suit as laid down by Apex Court in Modi Spinning And Weaving Mills, Company Limited Versus Ladha Ram And Company reported in 1976 (4) SCC 320.
(3) It would be refused if it take away from other side a legal right accrued in his favour as laid down by Supreme Court in Pirgonda Hongonda Patil Versus Kalgonda Shidgonda Patil. reported in AIR 1957 SC 363.
(4) Leave to amend to be refused where application is not in good faith as laid down in above case only.

In legal parlance, there is no strict rule or any interpretation regarding amendment in prayer, but this has become judicial precedent that after service of the notice, there cannot be amendment in prayer, but there might be instances where amendment was necessary for addressing controversy fully or meeting the needs of changed circumstances in the given case considering which the competent courts of law have granted amendment of prayers as well##. The Hon’ble Apex Court in the decision of Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] submitted that powers under Order VI Rule 17 of the Code of Civil Procedure should be exercised in such a manner and on such terms to do ultimate justice. In another decision of Supreme Court in Revajeetu Builders & Developers v. Narayanswamy & Sons [(2009) 10 SCC 84] laid down principles for allowing or rejecting 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?
(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.

The decision of Gujarat High court in Schencr Process India Limited v. Videocon Industries Limited [2012 (2) GLH 447] held that the amendment can be granted at any stage of the proceedings and another decision of this court in Charotar Cooperative Housing Society Limited v/s Kalaben Himmatlal Patel in Special Civil Application no. 15177 of 2014 decision dated 21.03.2017 held that the amendment deserves to be granted because it is based on the subsequent factual developments and has direct nexus with the original dispute in the suit. When amendment prayed for does not chart in any way a different course than the area of dispute between the parties in the suit, it has to be allowed.

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