The Author, Sujith Nair is an Advocate currently practicing at the Chambers of Adv. Rui Rodrigues, Bombay High Court.
I. INTRODUCTION:
It is a well-established rule of civil procedure that no amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. The court can neither make out a case which has not been pleaded nor grant relief which is not claimed by the parties and which does not flow from the facts and the cause of action alleged in the plaint. Hence, amending the pleadings may become very crucial for the parties to a dispute. Order VI Rule 17 of the Code of Civil Procedure, 1908 governs the amendment of pleadings
From a bear reading of the said provision, it can be discerned that amendments are to be allowed which satisfy two conditions.
(a) of not doing injustice to the opposing party, and
(b) of being required for the purpose of determining the real issues in dispute between the parties.
Even after the commencement of the trial, the amendment may be allowed if the Court is of the view that the applicant could not have raised the matter before the start of the trial, despite their due diligence. The term "due diligence" has been succinctly defined by the Bombay High Court in Walchandnagar Industries Limited vs. Indraprastha Developers and Ors as under:
"Due diligence" means careful and persistent application and effort. It means the diligence that a prudent man would exercise in the conduct of his own affairs. Unless the party takes prompt steps, mere action cannot be accepted after the commencement of the trial. The due diligence determines the scope of the party's constructive knowledge of the claim. It is a kind of reasonable investigation, which is necessary before claiming the relief."
II. SCHEME
It is certain that a "right" to amend cannot be asserted and the courts enjoy much discretion in the matter. However, the courts shouldn't take an overly technical stance when deciding such pleas. For instance, there is no rule stating that the Court cannot grant leave to amend the plaint unless it is expressly averred in the application for amendment of the plaint that the error, omission, or mis-description is the result of a bonafide mistake. Hence, even if the plaint was not carefully drafted, the party will not be penalised solely because of it.
Only when the opposite party cannot be placed in the same position, as if the initial pleading had been correct, and the amendment would cause such prejudice to him that it could not be compensated for in costs, can an amendment be rejected. Now, it has become settled law that the grant of application for amendment will be subject to the following three conditions, namely:
(i) when allowing amendment changes the nature of the pleadings;
(ii) when the amendment would result in the introduction of a new cause of action and intends to prejudice the other party; and
(iii) when amendment, if allowed, will defeat the law of limitation.
Let us now try to examine each of these factors.
A. NATURE
It is essential to understand that it is not by a mere change in the wording of the plaint or the introduction of fresh details that the nature of a suit is altered. The alteration which affects the case is one where the original suit is wholly displaced by the proposed amendment or where a totally different or inconsistent case is introduced.
So, for example, if the amendment relates to the relief of compensation in lieu of or in addition to specific performance, where the plaintiff has not abandoned his relief of specific performance, the court will allow the amendment at any stage of the proceeding. But if what is sought by the amendment is the conversion of a suit for specific performance into one for damages for breach of contract under Section 73 of the Contract Act, a different and rather less liberal standard will apply. It is settled law that the relief sought would not change the nature of the suit if the necessary factual basis for amendment is already contained in the plaint. A change in the nature of the relief sought does not constitute a change in the nature of the suit.
B Cause of Action
It is imperative to understand what "cause of action" actually means in the context of an amendment application. The expression ‘cause of action’ for the present purpose only means a new claim made on a new basis constituted by new facts.
So long as the proposed amendment has some basis in the pleadings of the applicant, the amendment won’t be considered to be a new cause of action. This point can be fully illustrated by referring to the decision of the Calcutta High Court in Lekha Mashi Naya Patel vs. Gopal Bagla. In this case, by the proposed amendments, the suit for eviction under the Transfer of Property Act was for the first time converted into one under the West Bengal Premises Tenancy Act. It was contended that if such an amendment were allowed, it would cause injustice to the petitioners by introducing a new cause of action. The court dismissed the objection by observing that on close scrutiny it will be evident that the original plaint did disclose a cause of action for eviction under the West Bengal Premises Tenancy Act as the ground of requirement within the meaning of the West Bengal Premises Tenancy Act appears to have been substantially pleaded. Hence, the court states that, "no new case is being made out by the proposed amendment for which there is not even the slightest basis in the original plaint."
An amendment has also been allowed when such an amendment is to incorporate facts which can be verified from the records before the court and is not a new story conjured for the first time. In this context, it will also be relevant to note that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused.
C. Limitation
The usual rule is that a party cannot establish a new case or cause of action through an amendment, especially if a lawsuit based on the new case or cause of action is time-barred. The change, however, will be permitted even after the statutory period of limitation has passed in cases where it does not amount to the addition of a new cause of action or raise a distinct case but just involves a different or additional approach to the same facts.
In L.J. Leach and Company Ltd. vs. Jardine Skinner and Co., a suit for damages for conversion was by amendment allowed to be converted to a suit for damages for breach of contract after that claim had become barred. The SC observed that the prayer in the plaint was itself general and merely claimed damages. Thus, all the allegations necessary for sustaining a claim for damages for breach of contract were already in the plaint. What was lacking was only the allegation that the plaintiffs were, in the alternative, entitled to claim damages for breach of contract by the defendants.
It has never been held that the question of a bar of limitation is one of the issues to be considered in allowing clarification of a matter already contained in the original pleading when an amendment is requested that merely clarifies an existing pleading and does not in substance add to or alter it. The amendment should be permitted even though the appellant is trying to fully establish the cause of action for specific performance for which relief had previously been prayed for.
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.
III. Conclusion:
Given the above, it can be deduced that the courts have generally applied a fairly liberal standard in granting amendment applications and have carved exceptions to the stringent rules in favour of the applicant as and when feasible. The SC in Ganesh Trading Co. Vs. Moji Ram observes that the 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.
