Introduction

A plaint or written statement may be drafted by the parties or counsels in a hurried manner. In doing like this there may be errors. Even if it is prepared with taking time, by oversight some part may be missed. Also change in some circumstances may require the party to incorporate some vital details in his pleadings. In all these circumstances, the provision for amendment comes to the help of parties when his pleadings are already filed in the Court. It can be said that a party will not lose his chance to plead his good case by way of amendment only because he has already filed his 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, other than a motion. By stating what claims and defenses are at issue, pleadings establish the issues to be decided by the court. O VI, R 1 states that "Pleading", shall mean plaint or written statement. Thus pleadings constitute of both what is alleged by the plaintiff and the response by the Defendant. 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. O VI, R 21 states the fundamental rules of pleading. They include that: (i) Pleadings must state fact, not law,

Pleading to state material facts and not evidence (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defense as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words. It is an essential requirement of pleading that the material facts 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 emend his pleadings before or during the trial of the case.

(ii) Pleadings should state fact and only fact, (iii) Pleadings should state material fact and not evidence, and

(iv)Pleadings should state facts in a concise form. Rule 17 of Order VI deals with the provision of amendment of the plaint. It states:
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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

Amendment of Pleadings and its object

As stated earlier, essential details have to be mentioned in the plaint and unnecessary details have to be struck out. In the case of Cropper v. Smith2, Bowen, L.J. remarks:
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

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.3
2 3

(1884) 29 Ch D 700 Patil v. Patil, AIR 1957 SC 363

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. 4 Provisions for the amendment of pleading are contained to promote end of justice and not for defeating them.5

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. 6 In Kisandas v. Vithoba7, Batchelor J. observed as follows:
All amendments ought to be allowed which satisfy the two conditions (a) of not working in justice to the other side, and (b) 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 suits8, or where the parties in the plaint are wrongly described 9, or where some properties are omitted from the plaint by inadvertence10, the amendment should be allowed.
4 5

Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869. Ganesh Trading Co. v. Moji Ram, (1978) 2 SCC 91: AIR 1978 SC 484 6 Tildersley v. Harper, (1878) 10 Ch D 393 7 [1909] I.L.R. 33 Bom. 644 8 Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357 9 Ram Manohar Lal v. N.B.M. Supply, (1969) 1 SCC 869. 10 Someshwari v. Mahshwari, AIR 1936 PC 332

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 Kumar11, the Supreme Court 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 parties. The real controversy test is the basic test. In Edevian v. Cohen12, 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.13

11 12

1974 AIR 1126 (1889) 43 Ch. D 187. 13 In Steward v. North Metropolitan Tramways Co., (1886) 16 QB 178, 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 favour. 14 Every amendment should be allowed if it does not cause injustice or prejudice to the other party.
4. Leave to amend will be refused where the application for amendment is not made in

good faith.15 The leave to amend is to be refused if the applicant has acted mala fide.16

Effect of Amendment
Where an amendment is allowed, such amendment relates back to the date of the suit as originally filed. In Brij Kishore v. Smt. Mushtari Khatoon17 it was held that the Court must take the pleadings as they stand after amendment and leave out of consideration the unamended one. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court. 18

Conclusion
Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the
14

Patil v. Patil, AIR 1957 SC 363: 1957 SCR 559; Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357 15 Patil v. Patil, AIR 1957 SC 363 16 In Patasibai v. Ratanlal, 1990 SCC (2) 42, 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 for 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. 17 Brij Kishore v. Smt. Mushtari Khatoon, AIR 1976 All 399 18 Order 6, Rule 18 Civil Procedure Code, 1908

discretion of the court. But like any other discretion, such discretion has to be exercised consistent with settled legal principles. In Ganesh Trading Co. v. Moji Ram19 (1978) 2 SCR 614, this Court stated :

Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil suits. But, the court cannot grant the leave of amendment at its whims and fancies. There has to certain criterion for granting or refusing the leave, which has been laid down in case laws. It is true that parties interested in delaying the trial of the case make misuse of this provision by moving frivolous amendments and after rejection of the application going in revision before the higher Court, delaying the proceedings before the lower courts. 20

Bibliography
Books Referred:
1. Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law

Agency, Faridabad. 2. C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow.
19 20

Order 6, Rule 18 Civil Procedure Code, 1908 Pg 1064, Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur.

3. M.P Jain, the Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur. 4. Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur.