Amendment of plaint

Respondents/plaintiffs (vendees) filed a suit for specific performance of a purported oral sale agreement against the defendant (vendor)

After filing of the said suit the vendor passed away and some of her legal heirs were brought on the record

Petitioner, who claimed to be one of the legal heirs of the vendor was not arrayed as a legal heir in the suit, therefore, he submitted an application for his impleadment in the suit as a defendant, which was allowed

Once the evidence in the suit was led and concluded, the respondents (vendees) filed an application seeking amendment of the plaint, alleging that the petitioner was not the son of the deceased vendor

Said application was dismissed by the Trial Court, however, the same was allowed by the revisional Court, whose order was sustained by the High Court in the impugned judgment

Validity

Interest of the respondents was better protected with the petitioner remaining a defendant, since in the eventuality that the suit were to be decreed without petitioner being arrayed as a party then he may file an application, under section 12(2), C.P.C., stating that the decree was obtained by fraud since he was a necessary party being a legal heir, yet was not arrayed as a defendant, and sought to set aside such decree

Respondents wanted to amend their plaint by challenging petitioner's paternity/maternity which had no connection with a suit which sought specific performance of a purported agreement

Defendants in the suit, including the petitioner, were keen to proceed with the suit, filed by the respondents nineteen years ago, but the respondents were delaying its conclusion, giving credence to the petitioner's contention that since the respondents were in possession of the suit property they did not want the suit to be decided

In the facts and circumstances of the case, Trial Court had rightly dismissed the respondents' application for amendment of the plaint

Petition for leave to appeal was converted into appeal and allowed, impugned orders of the revisional court and the High Court were set aside with costs imposed on the respondents throughout as they had abused the process of the court and indulged in unnecessary litigation.

Suit for cancellation of Hiba (gift) Deed, declaration and injunction was filed by respondent/plaintiff regarding suit property

Respondent/plaintiff filed application to amend her plaint to include her prayer of restoration of possession on the plea that she was illegally dispossessed by petitioner/defendant from suit property

Lower Appellate Court allowed to respondent/plaintiff to amend her plaint

Validity

All rules of Civil Procedure Code, 1908, are geared towards securing proper administration of justice and were always to be interpreted with such aim and purpose

Discretionary power conferred under O.VI, R.17, C.P.C. on a Court has to be only exercised in consonance with and in the light of judicial principles contained in judicial precedents

Amendment in pleadings may be allowed where multiplicity of suits can be avoided; amendment does not alter subject matter of suit or cause of action of suit; does not take away any accrued right; plaintiff becomes entitled to further relief by reason of events subsequent to filing of suit; cause of action needs amplification; interest of safe and accurate administration of justice so requires; on account of plaintiff's evidence a new statutory line of defence gets triggered; no injustice is caused; and relief is inadvertently left out

Such list is not exhaustive but just to cataloguing instances where it would be in line with trite and established law to allow amendment in pleadings under O.VI, R.17, C.P.C.

High Court declined to interfere in the order passed by Lower Appellate Court

Constitutional petition was dismissed, in circumstances.

During trial of a suit, necessity for making amendment in plaint arose when plaintiff thought that material facts or material particulars already stated in plaint required rectification or elucidation; or further facts or materials were necessary and in such a case, amendment to plaint was allowed under O. VII, R. 17, C.P.C., which was called voluntary amendment

When court, on such terms as it thought just, either on its own motion or on application, ordered any person to be added as a defendant who ought to have been joined as a defendant or whose presence before court was necessary then in such a case, plaint was compulsorily amended under O. I, R. 10(4) of C.P.C., in such manner as was deemed necessary

Nature of the said two types of amendments was not only different but also consequences of failure to make such amendments after order were also not the same

Plaintiff if, after obtaining leave to amend his plaint, failed to amend it within time, then he would not be permitted to amend it afterwards, but such failure did not render suit liable to dismissal

Consequence of failure to amend plaint, therefore, was that suit would go to trial on original pleadings, but such suit could not be dismissed

Trial Court had no power to compel a plaintiff to amend his plaint and failure to make either type of amendment did not result in dismissal of suit.

Plaintiff had moved application for amendment of plaint but had not sought in the said application to disclose a cause of action by amendment in the plaint

Trial Court had rightly rejected plaint, in circumstances

Courts below had rightly appreciated the provisions of O. VII, R. 11, C.P.C.

No illegality or irregularity had been pointed out in the impugned orders passed by the Courts below

Revision was dismissed, in circumstances.

Application for amendment of plaint was silent with regard to word/paragraph to be deleted after adding/inserting proposed amendment

Petition moved by the plaintiff for amendment of plaint was vague, defective and was not sustainable in the eye of law

Admission or denial in the plaint or written statement could not be allowed to be amended

Impugned order passed by the Court below was in accordance with law

Revision was dismissed, in circumstances.

Plaintiff moved application for amendment of plaint which was dismissed by the Trial Court but Appellate Court accepted the same

Appellate Court directed the plaintiff to submit amended plaint in the Trial Court on the next date of hearing

Plaintiff failed to submit amended plaint and his right to submit amended plaint was struck off

Validity

Plaintiff was bound to file amended plaint on the next date of hearing in the Trial Court fixed by the Appellate Court while allowing his petition

Provision of O.VI, R.18, C.P.C. was mandatory in nature

Plaintiff had violated the said provisions of law by not filing amended plaint in the Trial Court

Where appellate or revisional Court had allowed amendment then Trial Court could not extend the time for filing of amended plaint

Writ petition was dismissed, in circumstances.

Trial Court rejected plaint against which appeal was filed wherein plaintiff moved application for amendment of plaint which was dismissed

Validity

No right of prior purchase did exist with regard to sale of shop, serai or market or other property used as a place for transaction of public business

Trial Court had rightly rejected plaint in the present suit

Petitioner through proposed amendment wanted to fill up defects/lacunas in the suit which was not permissible under the law

If proposed amendment was allowed then it would change the complexion of the suit and new cause of action would be introduced

Parties, in the present suit, were followers of Fiqa Jafaria

Right of pre-emption was not available on the basis of vicinage, contiguity and participation in the amenities attached to the suit property

Suit of pre-emptor was not maintainable, in circumstances

Impugned orders had been passed by the Courts below in accordance with law

Revision was dismissed, in circumstances.

Whenever a plaint was allowed to be amended, right accrued to the opposite party to file amended written statement and no dispensation could be made to requirement of mandatory notice of such amendment to the opposite party even if the amendment was of a minor nature.

Plaintiff/petitioner contended that his application to amend plaint was just to add prayer in wake of revelation of agreement in his favour by his late father and that proposed amendment would not change the nature of the suit

Respondents/defendants contended that two courts below were justified as application of the plaintiff was meant to cover loop holes which introduced a new cause of action

Validity

Plaintiff had intended to amend the plaint by insertion of an added prayer under the same cause of action by referring to the agreement by his late father in his favour

Amendment could even be allowed by court where trial was in progress, if not allowed, even in second appeal

Prayer could be asked for in a revision before the revisional court

When an appeal before Supreme Court was preferred amendment could be allowed for the consideration

Amendment, in the present case, was without any alteration of the character of the suit

Mere introduction of fresh matter through amendment which did not alter nature of the suit was not to be refused where the parties seeking amendment had acted in good faith and mala fide was not the intention behind such amendment

Amendments could be sympathetically considered even if counsel drafting the case had left over introducing a matter which must go to the root of the cause of the case

Law permitted the amendment of plaint by insertion of the reference to previous agreement

Specific issue was to be framed regarding declaration of the status of the agreement as to whether same pertained to any type of alienation or transferring the rights by father of the petitioner in favour of his son or on account of sale or by way of gift, if so, the plaintiff had cause of action

Impugned orders were set aside

Revision petition was allowed accordingly.

Plaintiff moved application to amend the plaint, which was dismissed by both Trial Court and revisional court on ground of delayed filing

Validity

While considering request of a party for amendment of pleadings technicalities should have been avoided, as rules of procedure were meant to advance justice and mere delay could not be made basis for dismissal of such application

High Court allowed constitutional petition; order passed by both the courts below was set aside and application for amendment of plaint was accepted subject to payment of cost in circumstances.

Application for amendment of plaint was accepted by the Trial Court against which Appellate Court passed direction that final judgment till next date of hearing be not announced

Validity

Interim/interlocutory order of Appellate Court had been challenged through present constitutional petition

Constitutional petition would not lie against an interim/interlocutory order passed by the court of competent jurisdiction unless it was shown to be patently illegal, unlawful and without lawful authority

No illegality, infirmity or jurisdictional error had been pointed out in the impugned order passed by the Appellate Court

Constitutional petition was dismissed in limine being not competent.

Court had power to allow either of the parties to alter or amend the pleadings at any stage of the proceedings subject to the condition that amendment proposed was necessary for the purpose of determining the real question of controversy between the parties

If amendment of pleadings was necessary for the purpose of determination of real controversy between the parties, it should be allowed subject to the condition that fundamental character of the suit would not be changed

Said power of amendment was not restricted to the trial court rather court sitting in appeal or revision could also exercise such power subject to the said conditions and restrictions

Delay in applying for amendment of pleadings would not be fatal in each case

Relief ancillary to the relief sought should be allowed subject to the fact that allowed amendment should not change the basic character of the suit

Plaintiff, in the present case, would fail in absence of the relief for possession which was ancillary to the relief sought originally in the suit

Addition of the relief for possession would have no effect on the basic structure of the case, nor its nature would be changed

Proposed amendment was necessary for final determination of the controversy between the parties

Application for amendment was allowed to the extent of possession subject to payment of Rs.15,000 as cost of amendment to be paid to the opposite party

Trial Court was directed to frame proper issues to the extent of possession after amendment of pleadings by the parties and decide the matter on merits within a specified time.

Contention of defendant was that Revisional Court had no jurisdiction to pass impugned order as valuation of subject-matter was Rs.29,00,000

Validity

Valuation clause of the plaint was Rs.29,00,000 and plaintiff had affixed maximum court-fee

Value of suit property being beyond jurisdiction of Revisional Court revision petition was not competent

Amendment allowed by the Revisional Court was not permissible as same would change the complexion of suit qua sale consideration of suit property

Plaintiff had never disputed sale price and vague amendment could not be sought

Controversial amendment was hit by the principle of approbate and reprobate

Impugned order was illegal, unlawful and same was passed without jurisdiction which was set aside

Constitutional petition was accepted and application for amendment of plaint was dismissed in circumstances.

Plaintiff-respondent filed a suit for possession through pre-emption of land measuring 2-kanals 4-marlas wherein an application for amendment in the plaint was moved

Contention of the plaintiff-respondent was that through clerical mistake the measurement of land was wrongly given as 2-kanals 4-marlas instead of 2-kanals 9-marlas

Application for amendment of plaint was allowed concurrently

Validity

Plaint showed that the details of both the mutations, number of Khatas and Khasras along with shares were correctly given

Measurement given in the plaint i.e. 2-kanals 4-marlas instead of 2-kanals 9-marlas appeared to be result of a clerical mistake

Clerical or mathematical mistakes could be corrected at any stage

Delay in submission of the application was no ground to disallow the prayer and application under O. VI, R. 17, C.P.C. could be moved at any stage of the proceedings including the appeal

Impugned order passed by the Trial Court and Appellate Court did not suffer from any illegality or infirmity

Suit was not for partial pre-emption and incorrect measurement was given due to the clerical mistake and no right had accrued in favour of the defendants-petitioners

Constitutional petition was without merit and the same was dismissed in limine.

Petitioner (defendant) assailed orders of revisional court whereby respondent's (plaintiff) application for amendment of plaint to the extent of changing the nomenclature of the suit property was allowed

Contention of the petitioner was that such amendment would tantamount to changing the nature of the suit

Validity

Court had authority to allow either party to amend pleadings when the proposed amendment was just and necessary to resolve the real question of controversy between the parties

Amendment proposed by the plaintiff/respondent seeking change of nomenclature according to registration certificate which was duly issued by competent authority was not likely to change the nature or form of the suit and did not amount to introducing a new cause of action

Constitutional petition was dismissed.

Plaintiff's right to maintain a suit for declaratory decree was not affected by the fact that during pendency of the suit,i right to possession had also accrued to the plaintiffs

If original relief claimed becomes by reason of any subsequent change of circumstances, inappropriate, it was open for court to take notice of such events as they happened after the institution of suit and to mold its decree according to the circumstances as they stood at the time when the decree was made

Court was not obliged to dismiss a suit if it was bad under proviso to section 42 of the Specific Relief Act, 1877 as it did not authorize the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title, omits/fails to do so

Said section only forbade the court to make declaration, the prayer for which was not coupled with a prayer for consequential relief

Suit which was defective under section 42 should not, therefore, be dismissed for failure on part of the plaintiff to pray for further relief and Court should allow the plaintiff to amend the plaint; and it was a settled rule of practice not to dismiss suit for non-compliance of the provisions of section 42 of Specific Relief Act, 1877 but rather to allow the plaintiff to make necessary amendments.

Amendment of pleadings, if allowed in other cases, would take effect retrospectively from date of filing of original plaint, but in suit for pre-emption, same would take effect from date of its allowing.

Language used in O. VI, R.17, C.P.C. to the effect that "all such amendments would be made as could be necessary for purpose of determining the real question in controversy", was mandatory in nature

Once the court decided that amendment was necessary for the purpose of determining the real question, the court was required by law, not only to allow an amendment application made by a party in that behalf, but was also bound to direct the amendment for the said purpose

Full power of amendment must be enjoyed and should always be liberally exercised

When allowing the amendment in the plaint, the defendant's right should also be kept in view

Nature of the suit, insofar as its cause of action was concerned, was not to be changed by the amendment, because when the cause of action was changed, the suit itself would become different from the one initially filed

Dismissal of application for amendment of plaint on technical grounds, without touching merits and without determining right to amend the pleadings, was no bar for maintaining second application for the same purpose

Second application should only be barred, when earlier was decided on merits

Once a decision was given on an application under O. VI, R.17, C.P.C. regarding the same subject matter, similar application could not be filed, again on the same ground

Plaintiff having proved a genuine case for amendment, which was permissible, amendment should be liberally allowed in view of the grounds high-lighted in the amendment application

Petition for leave to appeal was converted into appeal and was allowed by Supreme Appellate Court, in circumstances.

S. 153, O. VI, r. 17-Amendment of plaint-Power to be exercised in accordance with legal principles-Setting u1 a new case not allowed. The powers of amendment conferred by the Code are very wide, but they must be exercised in accordance with legal principles, and an amendment would not be allowed which would involve the setting up of a new case.