Procedure for Amendment of Pleading
Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take. Order 6 elaborate the rules relating to Pleadings.
Material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. But many a times the party may find it necessary to amend his pleadings before or during the trial of the case. And it is trite law that Procedural law is intended to facilitate and not to obstruct the course of substantive justice.
After some provisions relating to special cases and circumstances, and for signing, verification and striking out of pleadings, comes order 6, rule 17 which reads as follows:
“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”.
This rule further provides that no application for amendment shall be allowed after the trial has commence, 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.
Notice to opposite party
When an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an objection against such prayer. An order granting amendment without hearing the opposite party is not legal and valid. But, if the amendment is purely formal or technical in nature, non issuance of notice is not material.
Recording of reasons
While deciding an application for amendment of pleading, the court must apply its mind and should record reasons for allowing or not allowing the amendment.
Discretion of the court
Discretion of court Rule 17 of Order 6 confers wide discretion on a court to allow either party to alter or amend his pleading at any stage of the proceedings on such terms as it deems fit. Such discretion, however, must be exercised judicially and in consonance with well-established principles of law.
The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time.
Alteration of cause of action by amendment in Pleading
A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. Mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. If any essential fact is lacking from averments in the plaint the cause of action will be defective.
Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured. (Ganesh Trading Co vs Moji Ram 1978 AIR 484)
Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, in- advertence or even infraction of the rules of procedure.