The Appeal was filed by the Respondent (Plaintiff) for the specific performance of contract based on an agreement dated 08.06.1979 and damages of about Rs. 1,01,00,000/-. However, after 30 years after the institution of the suit, the Respondent (Plaintiff) filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1906 (“CPC”) seeking an amendment to the suit regarding the quantum of damages i.e., increased sum of Rs. 400,01,00,000/-. The said Application came to be allowed vide the order dated 11.09.2018, keeping the issue of limitation open and also permitting the Appellant (Defendant) to file an additional written statement. The same was challenged in an Appeal and the Order dated 11.09.2018 was set aside vide the impugned order dated 13.12.2018. The Impugned Order dated 13.12.2018 was challenged before the Supreme Court in the present case.
The Hon’ble Supreme Court, inter alia, laid down principles applicable with respect to Order 6 Rule 17 of the CPC. The Hon’ble Supreme Court of India has observed and held that “All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.” The Hon’ble Court also observed that in dealing with a prayer for amendment of pleadings, the Court should avoid a hypertechnical approach, and is ordinarily required to be liberal, especially where the opposite party can be compensated by costs. The Court has held that “The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed”
The Hon’ble Supreme Court has categorically laid down instances when an application for amendment is to be allowed, i.e.,
- if the amendment is required for effective and proper adjudication of the controversy between the parties. The Court went ahead to observe that where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed;
- to avoid multiplicity of proceedings, provided
- the amendment does not result in injustice to the other side,
- by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side and
- the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations);
- Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
The Hon’ble Court also laid down instances when an application for amendment may be rejected, i.e.,
- by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration;
- the amendment changes the nature of the suit;
- the prayer for amendment is malafide, or
- by the amendment, the other side loses a valid defence.
The Hon’ble Court while considering the various instances wherein an application for amendment should be allowed, has not referenced the requirement of due diligence that is stipulated in the proviso to Order 6 Rule 17 CPC.
The due diligence proviso 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.