WHETHER AMENDMENT OF PLEADING CAN BE ALLOWED AFTER COMMENCEMENT OF TRIAL?

Order VI Rule 1 Code of Civil Procedure defines pleadings as a written statement or a plaint. Pleadings form the foundation for any case in the court of law.
Order VI Rule 17 Code of Civil Procedure “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 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.”

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors, the court stated that Amendment of pleadings consists of two parts :
• In the first part, the word ‘may’ gives discretionary power to the court to allow or disallow application of pleadings.
• In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow the application of pleadings if this amendment is necessary for the purpose of determining the real questions in controversy between the parties.
The primary objective for the court to allow application for Amendment of Pleadings is secure the ends of the justice and prevent injustice to other parties. Also, this amendment is necessary for the purpose of determining the real questions in controversy between the parties.
Step by Step procedure for filing an application for Amendment of Pleadings
Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an application for the amendment of pleadings to the concerned civil court
Step 2 – After drafting the application applicant needs to produce the application before the concerned civil judge.
Step 3 – He has to pay a required court fee under court fees Act, 1870.
Step 4 – Applicant needs to tell the purpose of the alteration in his application.
Step 5 – Judge will read the application and if he thinks fit that this alteration or amendment is necessary for the purpose of determining the real questions in controversy between the parties than he will grant permission for amendment for pleading.
Step 6 – After getting the order from the court, the applicant needs to file new pleadings within the prescribed time and if no time has been prescribed by the court then he needs to file it in 14 days from the date of order.
Step 7 – He also needs to give a copy of altered pleadings to the opposite party

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.
In Kisandas v. Vithoba, Batchelor J. observed as follows: “All amendments ought to be allowed which satisfy the two conditions:
1. This grant of leave should not lead to the injustice to other party.
2. This Amendment of pleadings is necessary for determining the real question of controversy between 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 suits, or where the parties in the plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence, the amendment should be allowed.

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 Kumar, the Supreme Court has rightly 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. 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.
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.
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. 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. The leave to amend is to be refused if the applicant has acted mala fide.
When the court allows the application of the Amendment of Pleadings then it relates back to the date of suit. But in the case of Sampath Kumar v. Ayyakannu, the court stated that in some special cases, the court can direct that amendment of pleadings will not relate back to the date of suit.

What happens when an applicant fails to amend in a prescribed time?
Order VI Rule 18 Civil Procedure Failure to amend after order: 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.
Order VI rule 18 states that when a party had application for amendment and it is allowed by the court through an order. But the party does not amend it within the time prescribed in the order or if no time is prescribed, within the fourteen days from issuance of order then the party will be not permitted to amend.
By
Abhinav Jassal
Student reporter, INBA