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Supreme Court of India

Rameshkumar Agarwal vs Rajmala Exports P.Ltd.& Ors on 30 March, 2012


Author: J.
Bench: P. Sathasivam, J. Chelameswar

11) It is clear that while deciding the application for amendment ordinarily the Court must
not refuse bona fide, legitimate, honest and necessary amendments and should never permit
mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the
Code is to allow either party to alter or amend his pleadings in such manner and on such
terms as may be just. Amendment cannot be claimed as a matter of right and under all
circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical
approach. Liberal approach should be the general rule particularly, in cases where the other
side can be compensated with costs. Normally, amendments are allowed in the pleadings to
avoid multiplicity of litigations.

Link:- https://indiankanoon.org/doc/162021975/

Question 1 related protion

Neither the proposed amendments will cause any prejudice to the other side not it take away
any accrued rights of defendants

that in order to avoid the multiplicity of proceedings also the proposed amendment is
necessary

Hence, it is submitted that the Trial Court has not at all considered these factual aspects
so also the legal aspects and wrongly rejected the amendment application only on the
ground that the amendment application is failed the test of due diligence under order 6
rule 17.

that the proposed amendment will not change the nature of the suit
Ganesh Trading Co vs Moji Ram on 25 January, 1978 AIR 484, 1978 SCR (2) 614

It is clear from the foregoing summary of the main rules of pleadings that provisions for the
amendment of pleadings, subject to such terms as to costs and giving of all parties
concerned necessary opportunities to meet exact situations resulting from amendments,
are intended for promoting the ends of justice and not for defeating them

Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil And ... on 7 February,


1957 AIR 363, 1957 SCR 595

"All amendments ought to be allowed which satisfy the two conditions (a) of not working
injustice to the other side, and (b) of being necessary for the purpose of determining the
real questions in controversy between the parties............ but I refrain from citing further
authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine,
as I understand it, is that amendments should be refused only where the other party cannot
be placed in the same position as if the pleading had been originally correct

J.Samuel & Ors vs Gattu Mhesh & Ors on 16 January, 2012

The primary aim of the court is to try the case on its merits and ensure that the rule of justice
prevails. For this the need is for the true facts of the case to be placed before the court so that
the court has access to all the relevant information in coming to its decision. Therefore, at
times it is required to permit parties to amend their plaints. The Court's discretion to grant
permission for a party to amend his pleading lies on two conditions, firstly, no injustice must
be done to the other side and secondly, the amendment must be necessary for the purpose of
determining the real question in controversy between the parties. However to balance the
interests of the parties in pursuit of doing justice, the proviso has been added which clearly
states 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.

13) Due diligence is the idea that reasonable investigation is necessary before certain kinds
of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the
adjudicatory mechanism to attain an anticipated relief. An advocate representing someone
must engage in due diligence to determine that the representations made are factually
accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to
provide a test for determining whether to exercise the discretion in situations of requested
amendment after the commencement of trial.

14) A party requesting a relief stemming out of a claim is required to exercise due diligence
and is a requirement which cannot be dispensed with. The term "due diligence" determines
the scope of a party's constructive knowledge, claim and is very critical to the outcome of the
suit.

15) In the given facts, there is a clear lack of `due diligence' and the mistake committed
certainly does not come within the preview of a typographical error. The term typographical
error is defined as a mistake made in the printed/typed material during a printing/typing
process. The term includes errors due to mechanical failure or slips of tand or finger, but
usually excludes errors of ignorance. Therefore the act of neglecting to perform an action
which one has an obligation to do cannot be called as a typographical error. As a
consequence the plea of typographical error cannot be entertained in this regard since the
situation is of lack of due diligence wherein such amendment is impliedly barred under the
Code.

S. Rm. Ar. S. Sp. Sathappa Chettiar vs S. Rm. Ar. Rm. Ramanathan Chettiar on 28
November, 1958 1958 AIR 228, 1958 SCR 1015

n due course the respondent was served and he filed a written statement raising several
contentions against the appellant's claim for partition and accounts. One of the points raised
by the respondent was -that the compromise and the release deed executed by the appellant's
father and the decree that was subsequently passed between the parties were fair and bona
fide transactions and, since they amounted to a settlement of the disputed claim by the
appellant's father, the plaintiff was bound by them.

Ramaswamy Gounder J. who heard the suit tried the respondent's contention about the
binding character of the compromise decree as a preliminary issue. The learned judge held
that there was a fair and bona fide settlement of the dispute by the appellant's father acting as
the manager of his branch and so the appellant was bound by the compromise decree. In the
result, the appellant's suit was dismissed on September 22, 1953.

Jai Jai Ram Manohar Lal vs National Building Material ... on 17 March, 1969 AIR
1267, 1970 SCR (1) 22

The Court always gives leave to amend the pleading of a party, unless it is satisfied that the
party applying was acting mala fide, or that by his blunder, he had caused injury to his
opponent which may not be compensed for by an order of costs. However negligent or
careless may have been the first omission, and, however late the proposed amend- ment, the
amendment may be allowed if it can be made without injustice to the other side. In
Amulakchand Mewaram and others v. Babulal Kanalal Taliwala(1), Beaumont, C.J., in
delivering the judgment of the Bombay High Court set out the principles applicable to cases
like the present and observed:

"...... the question whether there should be an amendment or not really turns upon
whether the name in which the suit is brought in the name of a non-existent person or
whether it is merely a misdescription of existing persons. If the former is the case, the suit is
a nullity and no amendment can cure it. If the latter is the case, prima facie, there ought to
be an amendment because the general rule, subject no doubt to certain exceptions, is that
the Court should always allow an amendment where any loss to the opposing party can be
compensated for by costs."

Ganga Bai vs Vijay Kumar & Ors on 9 April, 1974 AIR 1126, 1974 SCR (3) 882

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

Modi Spinning & Weaving Mills Co. ... vs Ladha Ram & Co on 23 September, 1977
AIR 680, 1977 SCR (1) 728

HELD: It is true that inconsistent pleas can be made inpleadings. The defendants cannot be
allowed to changecompletely the case and substitute an entirely different andnew case. In
the instant case, the effect of substitutionof paragraphs 25 and 26 is not making inconsistent
and alternative pleadings. but it is seeking to displace the plaintiff completely from the
admissions made by the defend-ants in the written statement. If such amendments are
allowed, the plaintiff will be irretrievably prejudiced bybeing denied the opportunity of
extracting the admissionfrom the defendants. The decision of the trial court is correct. The
defend- ants cannot be allowed to change completely the case made in paragraphs 25 and
26 of the written statement and substitute an entirely different and new case.
J.Samuel & Ors vs Gattu Mhesh & Ors on 16 January, 2012

Due diligence is the idea that reasonable investigation is necessary before certain kinds of
relief are requested. Duly diligent efforts are a requirement for a party seeking to use the
adjudicatory mechanism to attain an anticipated relief. An advocate representing someone
must engage in due diligence to determine that the representations made are factually
accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to
provide a test for determining whether to exercise the discretion in situations of requested
amendment after the commencement of trial.

Prithi Pal Singh v. Amrik Singh, (2013) 9 SCC 576

. Shri Prem Malhotra, the learned counsel for the respondent, contended that since the

respondent had refused performance the suit must be deemed to have been filed on 23-12-

1987 and, therefore, when the amendment was allowed, it would relate back to the date of

filing the suit which was filed within three years from the date of the refusal. Accordingly, the

suit is not barred by limitation. Shri U.R Lalit, the learned Senior Counsel for the appellant,

contended that in view of the liberty given by the High Court the appellant is entitled to raise

the plea of limitation. The suit filed after expiry of 3 years from 1986 is barred by limitation.

The question is: as to when the limitation began to run? In view of the admitted position that

the contract was to be performed within 15 days after the injunction was vacated, the

limitation began to run on 6-4-1986. In view of the position that the suit for perpetual

injunction was converted into one for specific performance by order dated 25-8-1989, the

suit must be deemed to have been instituted on 25-8-1989 and the suit was clearly barred

by limitation. We find force in the stand of the appellant. We think that parties had, by
agreement, determined the date for performance of the contract. Thereby limitation began

to run from 6-4-1986. Suit merely for injunction laid on 23-12-1987 would not be of any avail

nor the limitation began to run from that date. Suit for perpetual injunction is different from

suit for specific performance. The suit for specific performance in fact was claimed by way

of amendment application filed under Order 6 Rule 17 CPC on 12-9-1979. It will operate

only on the application being ordered. Since the amendment was ordered on 25-8-1989 the

crucial date would be the date on which the amendment was ordered by which date,

admittedly, the suit is barred by limitation. The courts below, therefore, were not right in

decreeing the suit.’

Panchdeo Narain Srivastava vs Km. Jyoti Sahay And Anr. on 18 February, 1983
AIR 1983 SC 462, 1983 (1) SCALE 719, 1984 Supp (1) SCC 594

This is the only reason which appealed to the learned single judge for interfering with an
order granting amendment in exercise of the revisional Jurisdiction under Section 115 of
the CPC. The original plaintiff has preferred this appeal by special leave.

Chander Kanta Bansal vs Rajinder Singh Anand on 11 March, 2008

. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised
by, a person who seeks to satisfy a legal requirement or to discharge an obligation.
According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due
diligence", in law, means doing everything reasonable, not everything possible. "Due
diligence" means reasonable diligence; it means such diligence as a prudent man would
exercise in the conduct of his own affairs.
Vineet Kumar vs Mangal Sain Wadhere on 5 January, 1985 AIR 817, 1984 SCR (2)
333

Normally amendment is not allowed if it changes the cause of action. But it is well
recognised that where the amendment does not constitute an addition of a new cause of
action, or raise a new case, but amounts to no more than adding to the facts already on the
record the amendments would be allowed even after the statutory period of limitation. The
question in the present case is whether by seeking the benefit of s.39 of the new Act there is a
change in the cause of action. In A.K. Gupta & Sons. v. Damodar Valley Corporation this
Court dealing with the cause of action observed as follows:

"The expression "cause of action" in the present context does not mean every fact which it is
material to be proved to entitle the plaintiff to succeed" as was said in Cooks v. Gill(2) in a
different context, for if it were so, no material fact could ever be amended or added and, of
course, no one would want to change or add an immaterial allegation by amendment. That
expression for the present purpose only means, a new claim made on a new basis constituted
by new facts. Such a view was taken in Rabinson v. Unicos Property Corporation Ltd.(3) and
it seems to us to be the only possible view to take. Any other view would make the rule
futile."

B.K.N.Pillai vs P. Pillai And Anr on 13 December, 1999

No amendment should be allowed which amounts to or relates in defeating a legal right


accruing to the opposite party on account of lapse of time. The delay in filing the petition
for amendment of the pleadings should be properly compensated by costs and error or
mistake which, if not fraudulent, should not be made a ground for rejecting the application
for amendment of plaint or written statement In the appeals the appellant-defendant
wanted to amend the written statement by taking a plea that in case he is not held a lessee,
he was entitled to the benefit of Section 60(b) of the Indian Easterners Act, 1882. Learned
counsel for the appellant is not interested in incorporation of the other pleas raised in the
application seeking amendment The plea sought to be raised is neither inconsistent nor
repugnant to the pleas already raised in defence.
Puran Ram vs Bhaguram & Anr on 29 February, 2008

It may be stated at this juncture that the trial court in its discretion had allowed the
application for amendment of plaint. In that situation, it needs to be seen whether it was
open to the High Court in the exercise of its power under Article 227 of the Constitution to
reverse the said order and reject the application for amendment of plaint. We will come to
this question later after we deal with the question whether the application for amendment
of plaint in the facts and circumstances of the case and on the allegations made in the plaint
could be rejected.

Gayathri Womens Welfare ... vs Gowramma & Anr on 11 January, 2011

The trial court upon a detailed appreciation of the evidence led by the parties concluded
that on the basis of the material on record, it can be said that the possession of the
appellant in respect of the plaint schedule property as against the respondents was long,
settled and uninterrupted. On the basis of the aforesaid conclusion, the trial court
proceeded to decide the issue with regard to the counter claim of the respondents.

the trial court permitted the respondents to amend the written statement to incorporate
the relief of counter claim for mandatory injunction. After the respondents had filed the
amended written statement, the appellants filed the written statement to the counter
claim. On the basis of the amended pleadings, the trial court had framed additional issues.
Upon the pleadings of the parties and upon consideration of the material on record, as
noticed earlier, the trial court again decreed the suit of the appellants but dismissed the
counter claim.

M/S. South Konkan Distilleries & ... vs Prabhakar Gajanan Naik & Ors on 9
September, 2008

it is always open to the court to allow an mendment if it is of the view that allowing of
an amendment shall really sub-serve the ultimate cause of justice and avoid further
litigation.
Chander Kanta Bansal vs Rajinder Singh Anand on 11 March, 2008

The proviso limits the power to allow amendment after the commencement of trial but
grants discretion to the court to allow amendment if it feels that the party could not have
raised the matter before the commencement of trial in spite of due diligence. It is true that
the power to allow amendment should be liberally exercised. The liberal principles which
guide the exercise of discretion in allowing the amendment are that multiplicity of
proceedings should be avoided, that amendments which do not totally alter the character
of an action should be granted, while care should be taken to see that injustice and
prejudice of an irremediable character are not inflicted upon the opposite party under
pretence of amendment.

K. Venkateswara Rao And Anr vs Bekkam Narasimha Reddi & Ors on 13 August,
1969 AIR 872, 1969 SCR (1) 679

Under O. 6 r. 17 C.P.C. a court of law trying the suit has very wide powers in the matter of
allowing amendments of pleadings and all amendments which will aid the court in disposing
of the matters in dispute between the parties are as a rule allowed subject to the law of
limitation.

Shanti Kumar R. Canji vs The Home Insurance Co. Of New York on 24 July,
1974AIR 1719, 1975 SCR (1) 550

The amendment order is not purely of discretion. Even with regard to discretionary orders
the appellate court can interfere where the order is insupportable in law or is unjust. In
exceptional cases an amendment has been allowed where the effect is to take away from a
defendant a legal right which has accrued to him by lapse of time.
Pankaja & Anr vs Yellappa (D) By Lrs. & Ors on 5 August, 2004

he Court's jurisdiction to allows substantial delay in filing such amendment applications. .


The jurisdiction to allow or not allow an amendment being discretionary the same will have
to be exercised in a judicious evaluation of the facts and circumstances in which the
amendment is sought. If the granting of an amendment really subserves the ultimate cause
of justice and avoids further litigation the same should be allowed

M/S. Revajeetu Builders & ... vs M/S. Narayanaswamy & Sons & Ors on 9
October, 2009

The first condition which must be satisfied before the amendment can be allowed by the
court is whether such amendment is necessary for the determination of the real question in
controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the
basic test which should govern the courts' discretion in grant or refusal of the amendment.

P.A. Ahammed Ibrahim vs Food Corporation Of India on 17 August, 1999

before applying provisions of Order VI Rule 17, there must be institution of the suit. Any
application filed under provisions of different statutes cannot be treated as a suit or plaint
unless otherwise provided in the said Act.

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