REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6921 OF 2009.  (Arising out of SLP (c) No.1552 OF 2007)

Revajeetu Builders & Developers ….. Appellant

Versus

Narayanaswamy & Sons & Others ….. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal  is directed  against the  judgment and  

order dated 16.9.2006 passed by the High Court of Karnataka  

at Bangalore in Writ Petition No.36550 of 2003.  

3. Brief facts in nutshell are as under:

The appellant (original plaintiff) filed an Original Suit  

no.  2265  of  1996  before  the  XXXI  Additional  City  Civil  

Judge, Bangalore against the respondents (defendant nos. 1  

to 10) for recovery of Rs.52,97,111/- with interest at the  

rate of 18% per annum from the date of filing of suit till  

payment.  The appellant alternatively had taken the plea  

that if the court for any reason comes to the conclusion  

that a decree for a sum of Rs.52,97,111/- cannot be passed

as prayed by the appellant against respondents (original  

defendant nos. 1 and 2), then the court may at least pass a  

decree for Rs.19,12,500/- with interest at the rate of 18%  

from the date of suit till the date of realization against  

the respondents.   

4. The  appellant  also  claimed  that  it  be  declared  

absolute owner of the scheduled property on the basis of  

the sale deed dated 30.9.1987. The sale deed was executed  

by  the  respondents  in  favour  of  the  appellant  after  

obtaining permission from the State of Karnataka under the  

provisions of the Urban Land (Ceiling & Regulation) Act,  

1976.   

5. A petition in public interest was filed by one S.  

Vasudeva  which  ultimately  came  up  before  this  Court  in  

Civil  Appeal  Nos.1454-56  of  1993  challenging  the  

aforementioned  transfer  of  land.   This  court  in  those  

proceedings  held  that  the  sale  deed  executed  by  the  

respondent in favour of the appellant on 30.9.1987 is held  

to be invalid and inoperative.  It may be pertinent to  

mention that after the institution of the suit, the Urban  

Land (Ceiling and Regulation) Act, 1976 has been repealed.  

6. After the Act has been repealed, the appellant filed  

an application under Order VI Rule 17 of the Code of Civil  

Procedure,  1908  (for  short  ‘CPC’)  seeking  leave  of  the  

trial court to add two additional paragraphs as 2(A) and  

(B) and few prayers and to delete certain paragraphs in the

plaint and also to delete the prayer (a), (b) and (c).   

Paragraphs 2(A) and (B) are set out as under:

“2(A). With  the  enactment  of  the  Urban  Land  (Ceiling  &  Regulation)  Act,  1976,  the  first  defendant  firm  was  prohibited  from  holding  vacant  land  in  excess of ceiling limits.  As provided by  the said Act, such vacant land, in excess  of  ceiling  limits,  was  liable  to  be  acquired  by  the  State  Government.  Therefore, the first defendant firm applied  to  the  State  Government  for  exemption,  under section 20(1) of the said Act, and  sought  permission  to  hold  excess  vacant  land to an extent admeasuring 16194 square  metres.   Vide  Government  Order  dated  17.07.85, in exercise of its power under  section 20(1) of the said Act, the state  government  permitted  the  first  defendant  firm  to  hold  the  excess  vacant  land.  Subsequently,  as  stated  in  para  4  hereinafter, the first defendant firm made  another application to the state government  to exempt the balance excess vacant land  admeasuring 3444 square metres and the same  was permitted by the state government vide  its order dated 18.04.87.  Thus, the entire  extent of vacant land in excess of ceiling  limits admeasuring a total aggregate extent  of 19638 square metres was exempted, by the  state  government,  under  section  20(1)  of  the said Act.

2(B). Thereafter,  the  defendant  firm  approached the plaintiff and offered to sell, to  the plaintiff, an extent of 5 acres 24 guntas in  survey nos.6/1 and 6/2, Dasarahalli, VI Block,  Jayanagar,  Bangalore,  together  with  building  thereon.   This  extent  of  5  acres  24  guntas  comprised of 19638 square feet of excess vacant  land, in addition to the land with buildings and  vacant  land within  ceiling limits.   The  first  defendant  firm,  therefore,  obtained  permission  from  the  state  government  under  orders  dated  06.03.87 and 18.04.87 to sell to the plaintiffs,  the excess vacant land admeasuring 19638 square  metres, as set out in paras 3 and 4 hereinafter.  Pursuant  thereto,  the  first  defendant  firm  executed a registered Sale Deed dated 30.09.87 in  respect of the total aggregate extent of 5 acres

24 guntas i.e. including the excess vacant land  admeasuring  19638  square  metres  as  aforesaid  (19638 sq. metres).”

7. The appellant sought to add the following prayers in  

the plaint by an amendment in the plaint:-

(a)  to declare that from 1.4.1988, the  defendants  are  trespassers  and  or  in  unauthorized  occupation  of  the  building  which they were permitted, under the Sale  Deed dated 30.9.1987 to use as a licensee  till 31.3.1988;

(b)  to  issue  a  mandatory  injunction  directing  the  defendants  to  vacate  and  deliver  to  the  plaintiff,  vacant  and  peaceful possession of the building within  30 days; and

(c)  to  issue  a  permanent  injunction  restraining the defendants or any of them,  or their agents, representatives, servants  or  any  other  persons  claiming  through,  under  or  on  behalf  of  any  of  them  from  interfering  with  or  in  any  manner  disturbing,  hindering,  obstructing,  the  plaintiff’s enjoyment and possession of the  entire suit schedule property including the  building portion ordered to be evicted in  terms of prayer (b) hereinabove.

8. The trial court vide order dated 5.4.2003 allowed  

application for amendment filed under Order VI Rule 17 CPC.  

The respondents aggrieved by the said order of the trial  

court  preferred  a  writ  petition  No.36550  of  2003  under  

Article 227 of the Constitution before the High Court of  

Karnataka on the ground that the amendment as sought and  

granted has changed the entire nature of the suit and cause  

of action.  The respondents also submitted that the fact of  

allowing amendment would be taking away admissions in the

plaint by the appellant and such an amendment cannot be  

permitted by any court of law.  It was further submitted by  

the respondents that by the order of the trial court the  

rights accrued to the respondents have been taken away.   

9. The respondents submitted that the original suit was  

instituted for recovery of Rs.52,97,111/-.  Alternatively,  

the  appellant  requested  the  court  to  declare  it  as  the  

absolute  owner  based  on  the  basis  of  sale  deed  dated  

30.9.1987  and  direct  the  respondents  to  deliver  vacant  

possession  of  the  plaint  schedule  property.   The  

respondents also submitted that the appellant relying upon  

the  sale  deed  dated  30.9.1987  requested  the  court  to  

declare  it  as  the  absolute  owner  and  since  it  sought  

possession  of  the  property  from  the  respondents  meaning  

thereby  that  the  respondents  are  in  possession  of  the  

entire suit property.  If the appellant are in possession  

of only a portion of the suit property, the same ought to  

have been mentioned in the plaint and the prayer in respect  

of the same would be limited and not seeking relief of  

possession in respect of the entire suit property.  Now by  

virtue of the amendment, the appellant is trying to contend  

that the respondents are to be treated as trespassers and  

unauthorized occupants of the building in question.   

10. The learned counsel for the respondents submitted  

that when the appellant had originally sought possession of

the entire property from the respondents, by giving up such  

a claim, now the appellant is trying to introduce a new  

case  which  would  certainly  affect  the  rights  of  the  

respondents when the appellant had earlier requested the  

court  to  pass  a  decree  for  possession  of  the  entire  

property.  Learned counsel for the appellant also submitted  

that  the  trial  court  without  considering  or  properly  

comprehending implications of all these aspects has allowed  

the amendment application.   

11. In  the  impugned  judgment,  the  High  Court  after  

considering  the  rival  contentions  came  to  the  definite  

conclusion that the appellant while seeking permission to  

amend the plaint is trying to introduce a new case which  

was  not  his  case  in  the  original  plaint  and  proposed  

amendment if allowed would certainly affect the rights of  

the respondents adversely.  In  the  impugned  judgment,  

the  High  Court  also  held  that  the  appellant  cannot  be  

permitted to withdraw the admissions made in the plaint as  

it would affect the rights of the respondents.    

12. The High Court in the impugned judgment also held  

that any such amendment which changes the entire character  

of the plaint cannot be permitted and that too after a  

lapse of four years after the institution of the suit.  The  

High Court has set aside the order of the trial court which  

allowed the amendment under Order VI Rule 17 CPC.

13. Being  aggrieved  by  the  impugned  judgment,  the  

appellant has preferred this appeal.

14. We have heard the learned counsel for the parties  

and have also perused the written submissions filed by the  

parties.

15. It  is  submitted  by  the  learned  counsel  for  the  

appellant that the suit, as originally framed, was only for  

refund  of  sale  consideration  and  alternatively  for  

possession.  The appellant also submitted that the relief  

for possession was always there, although it was in respect  

of  the  entire  land  which  is  sought  to  be  amended  and  

reduced  to  the  licensed  area  only.   According  to  the  

appellant,  the  amendment  under  Order  VI  Rule  17  is  

consequent  to  the  subsequent  Urban  Land  (Ceiling  &  

Regulation) Repeal Act, 1999 which validated all exemption  

orders  notwithstanding  any  court  orders,  judgments  or  

decrees to the contrary.  The appellant also submitted that  

the amendment is necessary to elucidate the real points in  

controversy.  It was also submitted by the appellant that  

the  amendment  will  not  cause  any  prejudice  to  the  

respondents.  It was also submitted that the stand taken up  

by the respondents is totally dishonest, wrong and not bona  

fide.  The appellant submitted that the court should be  

liberal  in  allowing  amendments  and  the  respondents  be  

compensated by costs.

16. The learned counsel for the respondents submitted  

that in the original plaint, the appellant rightly sought  

only for recovery of sale price relying on section 65 of  

the Contract Act.  Section 65 of the Contract Act is as  

follows:-

 “When an agreement is discovered to be void, or  when a contract becomes void, any person who  has received any advantage under such agreement  or contract is bound to restore it, or to make  compensation for it, to the person from whom he  received it.”

17. The original plaint expressly so avers and relies on  

section 65 of the Contract Act clearly admitting that the  

sale deed has become void.  This admission is now sought to  

be got rid off and the sale deed is sought to be asserted  

as  valid.   It  was  submitted  that  the  appellant  cannot,  

therefore, seek any amendment of the plaint relying on the  

circumstances  as  to  the  earlier  decision  having  been  

overruled by seeking amendment of the plaint.   This has  

the effect of changing the character of the suit and also  

omitting an admission made.

18. Respondents  (Defendant  nos.1,  2,  4  and  7)  filed  

written statement to the original plaint.  They prayed the  

court to pass a decree in favour of the appellant for a sum  

of  Rs.27,30,339.45/.   This  is  an  admission  of  the  

respondents  in  favour  of  the  appellant  to  an  extent  of  

Rs.27,30,339.45/-.  The appellant now cannot be permitted  

to take a complete somersault.  

19. The respondents also submitted that the appellant  

cannot now seek recovery of possession of the property. To  

grant  amendment  at  this  stage  would  not  only  have  the  

effect of appellant getting rid of the admissions made in  

the original plaint but defeating the provisions of Order  

XII Rule 6 of the CPC by changing the cause of action and  

entire character of the suit and causing serious prejudice  

to the respondents.  The respondents relied on the decision  

of this court in  Usha Balashaheb Swami & Others v. Kiran  

Appaso Swami & Others1 wherein the court has held that by  

way  of  amendment,  admission  made  in  pleadings  and  

particularly in the plaint cannot be sought to be omitted  

or got rid of.  The Court further observed that a prayer  

for  amendment  of  the  plaint  stand  on  different  footing.  

The  relevant  observations  of  the  Court  are  set  out  as  

under:

“19. ..a prayer for amendment of the plaint and  a prayer for amendment of the written statement  stand  on  different  footings.   The  general  principle that amendment of pleadings cannot be  allowed so as to alter materially or substitute  cause of action or the nature of claim applies to  amendments to plaint. It has no counterpart in  the  principles  relating  to  amendment  of  the  written statement.  Therefore, addition of a new  ground of defence or substituting or altering a  defence  or  taking  inconsistent  pleas  in  the  written  statement  would  not  be  objectionable  while  adding,  altering  or  substituting  a  new  cause  of  action  in  the  plaint  may  be  objectionable.

20. Such being the settled law, we must hold  that  in  the  case  of  amendment  of  a  written  

1  (2007) 5 SCC 602

statement,  the  courts  are  more  liberal  in  allowing an amendment than that of a plaint as a  question of prejudice would be far less in the  former than in the latter case…….”

20. The  learned  counsel  for  the  respondents  further  

relied on the decision in Heeralal v. Kalyan Mal & Others2  

wherein the court proceeded on the basis that the earlier  

admissions  of  the  defendant  cannot  be  allowed  to  be  

withdrawn.  The Court examined the facts and held that the  

defendant  cannot  be  permitted  to  withdraw  any  admission  

already made.     

21. The respondents have also relied on the decision in  

Gautam Sarup v. Leela Jetley & Others3.  In the said case,  

it was held that by amendment the admission in the original  

pleadings cannot be sought to be got rid off.

22. In  M/s  Modi Spinning & Weaving Mills Co. Ltd. &  

Another v. Ladha Ram & Co.4, the trial court while rejecting  

an  application  under  Order  VI  Rule  17  said  that  the  

repudiation of clear admission is motivated to deprive the  

plaintiff of the valuable right accrued to him and it is  

against  law.   The  High  Court  on  revision  affirmed  the  

judgment  of  the  trial  court  and  held  that  by  means  of  

amendment  the  defendant  wanted  to  introduce  an  entirely  

different  case  and  if  such  amendments  were  permitted  it  

would prejudice the other side.

2 (1998) 1 SCC 278 3 (2008) 7 SCC 85 4  (1976) 4 SCC 320

23. In the said case, a three-Judge bench of this court  

observed:  

“10. It is true that inconsistent pleas can  be  made  in  pleadings  but  the  effect  of  substitution of paragraphs 25 and 26 is not  making  inconsistent  and  alternative  pleadings but it is seeking to displace the  plaintiff  completely  from  the  admissions  made  by  the  defendants  in  the  written  statement.  If such amendments are allowed  the  plaintiff  will  be  irretrievably  prejudiced by being denied the opportunity  of  extracting  the  admission  from  the  defendants.   The  High  Court  rightly  rejected the application for amendment and  agreed with the trial Court.”

This judgment has been referred in  Usha Balashaheb Swami  

(supra) and the court observed that  Modi Spinning's case  

(supra) was a clear authority for the proposition that once  

a written statement contained an admission in favour of the  

plaintiff, by amendment such an admission of the defendant,  

cannot  be  withdrawn  and  if  allowed,  it  would  amount  to  

totally displacing the case of the plaintiff.   

24. In  the  same  judgment  of  Usha  Balashaheb  

Swami  (supra), the Court dealt with a number of judgments  

of this Court and laid down that the prayer for amendment  

of the plaint and a prayer for amendment of the written  

statement  stand  on  different  footings.   The  general  

principle that amendment of pleadings cannot be allowed so  

as to alter materially or substitute the cause of action or  

the nature of claim applies to amendments to plaint.  It  

has no counterpart in the principles relating to amendment

of the written statement.   Therefore, addition of a new  

ground of defence or substituting or altering a defence or  

taking inconsistent pleas in the written statement would  

not be objectionable while adding, altering or substituting  

a new cause of action in the plaint may be objectionable.

25. If we carefully examine all the cases, the statement  

of law declared by the Privy Council in  Ma Shwe Mya v.  

Maung  Mo  Hnaung5 has  been  consistently  accepted  by  the  

courts till date as correct statement of law.  The Privy  

Council observed:

“All rules of court are nothing but provisions  intended to secure the proper administration of  justice, and it is therefore essential that they  should be made to serve and be subordinate to  that purpose, so that full powers of amendment  must be enjoyed and should always be liberally  exercised, but nonetheless no power has yet been  given to enable one distinct cause of action to  be  substituted  for  another,  nor  to  change,  by  means  of  amendment,  the  subject-matter  of  the  suit.”

26. When we apply the principle laid down by the above  

judgments,  the  conclusion  becomes  irresistible  that  the  

view  taken  by  the  High  Court  in  the  impugned  judgment  

cannot be said to be unjustified.   

27. We are tracing the legislative history, objects and  

reasons for incorporating Order VI Rule 17 not because it  

is necessary to dispose of this case, but a large number of  

applications  under  Order  VI  Rule  17  are  filed  and  our  

5  AIR 1922 PC 249

courts are flooded with such cases.  Indiscriminate filing  

of applications of amendments is one of the main causes of  

delay  in  disposal  of  civil  cases.   In  our  view,  clear  

guideline  may  help  disposing  off  these  applications  

satisfactorily.   

 28. We deem it appropriate to give historical background  

of Rule 17 of Order VI corresponds to section 53 of the Old  

Code of 1882.  It is similar to Order 21 Rule 8 of the  

English Law.  Order VI Rule 17 CPC reads as under:

“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.”

29. In our considered view, Order VI Rule 17 is one of  

the  important  provisions  of  the  CPC,  but  we  have  no  

hesitation in also observing that this is one of the most  

misused provision of the Code for dragging the proceedings  

indefinitely, particularly in the Indian courts which are  

otherwise heavily overburdened with the pending cases.  All  

Civil  Courts  ordinarily  have  a  long  list  of  cases,  

therefore,  the  Courts  are  compelled  to  grant  long  dates  

which  causes  delay  in  disposal  of  the  cases.   The

applications  for  amendment  lead  to  further  delay  in  

disposal of the cases.   

30. It may be pertinent to mention that with a view to  

avoid delay and to ensure expeditious disposal of suits,  

Rule  17  was  deleted  on  the  recommendation  of  Justice  

Malimath  Committee  by  the  Code  of  Civil  Procedure  

(Amendment) Act, 1999 but because of public uproar, it was  

revived.  Justice C.K. Thakker, an eminent former Judge of  

this Court in his book on Code of Civil Procedure (2005  

Edition) incorporated this information while dealing with  

the object of amendment.

31. In  a  recently  published  unique,  unusual  and  

extremely  informative  book  “Justice,  Courts  and  Delays”,  

the author Arun Mohan, a Senior Advocate of the High Court  

of Delhi and of this Court, from his vast experience as a  

Civil Lawyer observed that 80% applications under Rule VI  

Order 17 are filed with the sole objective of delaying the  

proceedings, whereas 15% application are filed because of  

lackadaisical  approach  in  the  first  instance,  and  5%  

applications  are  those  where  there  is  actual  need  of  

amendment.   His experience further revealed that out of  

these  100  applications,  95  applications  are  allowed  and  

only 5 (even may be less) are rejected.  According to him,  

a need for amendment of pleading should arise in a few  

cases, and if proper rules with regard to pleadings are put  

into place, it would be only in rare cases. Therefore, for

allowing amendment, it is not just costs, but the delays  

caused  thereby,  benefit  of  such  delays,  the  additional  

costs  which  had  to  be  incurred  by  the  victim  of  the  

amendment.   The  Court  must  scientifically  evaluate  the  

reasons, purpose and effect of the amendment and all these  

factors must be taken into consideration while awarding the  

costs.

32. To curtail delay in disposal of cases, in 1999 the  

Legislation  altogether  deleted  Rule  17  which  meant  that  

amendment  of  pleading  would  no  longer  have  been  

permissible.  But immediately after the deletion there was  

widespread uproar and in 2002 Rule 17 was restored, but  

added a proviso.  That proviso applies only after the trial  

has commenced.   Prior to that stage, the situation remains  

as it was.  According to the view of the learned author  

Arun Mohan as observed in his book, although the proviso  

has improved the position, the fact remains that amendments  

should  be  permissible,  but  only  if  a  sufficient  ground  

therefore  is  made  out,  and  further,  only  on  stringent  

terms.   To  that  end,  the  rule  needs  to  be  further  

tightened.   

33. The general principle is that courts at any stage of  

the proceedings may allow either party to alter or amend  

the pleadings in such manner and on such terms as may be  

just and all those amendments must be allowed which are  

imperative for determining the real question in controversy

between  the  parties.   The  basic  principles  of  grant  or  

refusal of amendment articulated almost 125 years ago are  

still considered to be correct statement of law and our  

courts have been following the basic principles laid down  

in those cases.

34. In the leading English case of  Cropper v. Smith6,  

the object underlying amendment of pleadings has been laid  

down by Browen, L.J. in the following words:

“It  is  a  well  established  principle  that  the  object of the courts is to decide the rights of  the parties and not punish them for mistakes they  make in the conduct in their cases by deciding  otherwise  than  in  accordance  with  their  rights  ... I know of no kind of error or mistake which,  if not fraudulent or intended to overreach, the  court  ought  not  to  correct  if  it  can  be  done  without injustice to the other party. Courts do  not exist for the sake of discipline but for the  sake of deciding matters in controversy, and I do  not regard such amendment as a matter of favour  or grace ... it seems to me that as soon as it  appears that the way in which a party has framed  his case will not lead to a decision of the real  matter in controversy, it is as much a matter of  right on his part to have it corrected if it can  be done without injustice, as  anything else in  the case is a matter of right."

35. In  Tildersley v. Harper7 which was decided by the  

English Court even earlier than the Cropper’s case (supra),  

in an action against a lessee for setting aside a lease, in  

the statement of claim it was alleged that the power of  

attorney of donee had received specified sum as a bribe.  

In the statement of defence, each circumstance was denied  

but there was no general denial of a bribe having been  

6 (1884) 29 Ch D 700 7  (1878) 10 Ch. D 393

given.  A prayer for amendment of the defence statement was  

refused.   

36. The Court of Appeal held that the amendment ought to  

have  been  allowed.   Bramwell,  L.J.  made  the  following  

pertinent observations:

“I  have  had  much  to  do  in  Chambers  with  applications  for  leave  to  amend,  and  I  may  perhaps be allowed to say that this humble branch  of learning is very familiar to me.  My practice  has always been to give leave to amend unless I  have been satisfied that the party applying  was  acting mala fide, or that, by his blunder he had  done some injury to his opponent which could not  be compensated for by costs or otherwise.”

(Emphasis added)

37. In another leading English case  Weldon v. Neal8, A  

filed  a  suit  against  B  for  damages  for  slander.   A  

thereafter applied for leave to amend the plaint by adding  

fresh claims in respect of assault and false imprisonment.  

On the date of the application, those claims were barred by  

limitation though they were within the period of limitation  

on the date of filing the suit.  The amendment was refused  

since the effect of granting it would be to take away from  

B the legal right (the defence under the law of limitation)  

and thus would cause prejudice to him.

38. The rule, however, is not a universal one and under  

certain circumstances, such an amendment may be allowed by  

the court notwithstanding the law of limitation.  The fact  

that the claim is barred by law of limitation is but one of  

8 (1880) 19 QBD 394: 56 LJ QB 621

the  factors  to  be  taken  into  account  by  the  court  in  

exercising  the  discretion  as  to  whether  the  amendment  

should be allowed or refused, but it does not affect the  

power of the court if the amendment is required in the  

interests of justice.9

39. In Steward v. North Metropolitan Tramways Co.10, the  

plaintiff  filed  a  suit  for  damages  against  the  tramways  

Company  for  negligence  of  the  company  in  allowing  the  

tramways  to  be  in  a  defective  condition.   The  company  

denied  the  allegation  of  negligence.   It  was  not  even  

contended that the company was not the proper party to be  

sued.  More than six months after the written statement was  

filed, the company applied for leave to amend the defence  

by adding the plea that under the contract entered into  

between the company and the local authority the liability  

to maintain tramways in proper condition was of the latter  

and, therefore, the company was not liable.  On the date of  

the amendment application, the plaintiff’s remedy against  

the local authority was time barred.  Had the agreement  

been pleaded earlier, the plaintiff could have filed a suit  

even against the local authority.  Under the circumstances,  

the amendment was refused.

40. In the said case, Pollock, J. quoting with approval  

the  observation  of  Bremwell,  LJ.  rightly  observed:  “The  

test  as  to  whether  the  amendment  should  be  allowed  is,  

9 Ganga Bai v. Vijai Kumar (1974) 2 SCC 393; Arundhati Mishra v. Sri Ram Charitra Pandey   (1994) 2 SCC 29. 10 (1886) 16 QB 178

whether or not the defendants can amend without placing the  

plaintiff in such a position that he cannot be recouped, as  

it  were,  by  any  allowance  of  costs,  or  otherwise.  

According to him such an amendment ought not be allowed.”

41. Kisandas v. Rachappa Vithoba11 is probably the first  

leading case decided by the High Court of Bombay under the  

present Code of 1908.  There, A, plaintiff, averred that in  

pursuance of a partnership agreement, he delivered Rs.4001  

worth of cloth to B, defendant, and sued for dissolution of  

partnership and accounts.  The trial court found that A  

delivered the cloth worth Rs.4001 but held that there was  

no  partnership  and  the  suit  was  not  maintainable.   In  

appeal,  A  sought  amendment  of  adding  a  prayer  for  the  

recovery of Rs.4001.  On that day, claim for recovery of  

money was barred by limitation.  The amendment was allowed  

by  the  appellate  court  and  the  suit  was  decreed.   B  

challenged the decree.  The High Court upheld the order and  

dismissed  the  appeal.  Referring  to  leading  English  

decisions on the point, Batchelor, J. stated:

“From  the  imperative  character  of  the  last  sentence of the rule it seems to me clear that, at  any stage of the proceedings, all amendments ought  to be allowed which satisfy the two conditions (a)  of not working in justice to the other side, and  (b)  of  being  necessary  for  the  purpose  of  determining  the  real  questions  in  controversy  between the parties.”

42. In a concurring judgment, Beaman, J. observed that  

“the  practice  is  to  allow  all  amendments,  whether  

11  (1909) 33 Bom 644

introducing fresh claims or not, so long as they do not put  

the other party at a disadvantage for which he cannot be  

compensated by costs.”

His Lordship proceeded to state:

“In my opinion two simple tests, and two only,  need to be applied, in order to ascertain whether  a  given  case  is  within  the  principle.  First,  could the party asking to amend obtain the same  quantity of relief without the amendment? If not,  then  it  follows  necessarily  that  the  proposed  amendment  places  the  other  party  at  a  disadvantage,  it  allows  his  opponent  to  obtain  more from him than he would have been able to  obtain but for the amendment. Second, in those  circumstances,  can  the  party  thus  placed  at  a  disadvantage be compensated for it by costs? If  not,  then  the  amendment  ought  not,  unless  the  case is so peculiar as to be taken out of the  scope of the rule, to be allowed.”

43. In Amulakchand Mewaram & Others v. Babulal Kanalal  

Taliwala12, the Bombay High Court again had an occasion to  

decide a case under Order VI Rule 17.   In that case, the  

Court approved the following observations of Beaumont, C.J.  

and observed:

“...  the  question  whether  there  should  be  an  amendment or not really turns upon whether the  name in which the suit is brought in the name of  a non-existent person or whether it is merely a  misdescription  of  existing  persons.  If  the  former is the case, the suit is a nullity and no  amendment  can  cure  it.  If  the  latter  is  the  case,  prima  facie,  there  ought  to  be  an  amendment because the general rule, subject no  doubt to certain exceptions, is that the Court  should always allow an amendment where any loss  to the opposing party can be compensated for by  costs.”

12 (1933) 35 Bom. L.R. 569

44. In  L.J.  Leach  &  Co.  Ltd.  &  Another  v.  Jardine,  

Skinner  &  Co.13,  a  suit  for  damages  for  ‘conversion  of  

goods’  filed  by  the  plaintiff  was  decreed  by  the  trial  

court but the decree was set aside by the High Court.  In  

an  appeal  before  this  Court,  the  plaintiff  applied  for  

amendment of the plaint by raising an alternative claim for  

damages for breach of contract for ‘non-delivery of goods’.  

The amendment was resisted by the defendant contending that  

it sought to introduce a new cause of action which was  

barred by limitation on the day the amendment was sought  

and, hence, it would seriously prejudice the defendant.

45. Though the Court noticed ‘considerable force’ in the  

objection,  keeping  in  view  the  prayer  in  the  amendment  

which was not ‘foreign to the scope of the suit’ and all  

necessary facts were on record, it allowed the amendment.

46. In  P.H. Patil v. K.S. Patil14, A obtained a decree  

for possession against B.  He was, however, obstructed in  

obtaining possession by C in execution.  A then filed a  

substantive suit against B and C.  In the plaint, except  

saying that he had obtained a decree against B, nothing  

more was stated by A.  Hence, he filed an application for  

amendment which was rejected by the trial court but allowed  

by the High Court.  C approached this Court.

47. Dismissing the appeal and confirming the order of  

13 AIR 1957 SC 357 14 AIR 1957 SC 363

the High Court, this Court observed that the discretionary  

power of amendment was not exercised by the High Court on  

wrong  principles.   There  was  merely  a  defect  in  the  

pleading which was removed by the amendment.  The quality  

and  quantity  of  the  reliefs  sought  remained  the  same.  

Since  the  amendment  did  not  introduce  a  new  case,  the  

defendant was not taken by surprise.

48. In Pursuhottam Umedbhai & Co. v. Manilal & Sons15 a  

suit was instituted in the name of the firm by the partners  

doing business outside India.  It was held that there was  

only mis-description of the plaintiff.  The plaint in the  

name of the firm was not a nullity and could be amended by  

substituting the names of partners.

49. In  similar  circumstances,  in  a  subsequent  case  

Ganesh Trading Co. v. Moji Ram16, this Court reiterated the  

law laid down in  Purushottam Umedbhai & Co. (supra).  The  

Court observed:  

“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.  But,  mere  failure to set out even an essential fact does  not, by itself, constitute a new cause of action.  A cause of action is constituted by the whole  bundle  of  essential  facts  which  the  plaintiff  

15 AIR 1961 SC 325 16 (1978) 2 SCC 91

must prove before he can succeed in his suit. It  must  be  antecedent  to  the  institution  of  the  suit.  If  any  essential  fact  is  lacking  from  averments in the plaint the cause of action will  be defective. In that case, an attempt to supply  the  omission  has  been  and  could  sometime  be  viewed as equivalent to an introduction of a new  cause of action which, cured of its shortcomings,  has really become a good cause of action. This,  however, is not the only possible interpretation;  to be put on every defective state of pleadings.  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, so as to  constitute cause of action where there was none,  provided necessary conditions, such as payment of  either any additional court fees, which may be  payable,  or,  of  costs  of  the  other  side  are  complied with. It is only if lapse of time has  barred the remedy on a newly constituted cause of  action that the Courts should, ordinarily, refuse  prayers for amendment of pleadings.”

50. In Laxmidas Dayabhai Kabrawala v. Nanabhai Chunilal  

Kabrawala & Others17, the defendant’s prayer for amendment  

by treating a counter claim as cross-suit was objected to  

by the plaintiff  inter alia  on the ground of limitation.  

The amendment, however, was allowed.

51. When the matter reached this Court, while affirming  

the order of the High Court, the majority stated:

“…..It  is,  no  doubt,  true  that,  save  in  exceptional cases, leave to amend under O. 6, r.  17 of the Code will ordinarily be refused when the  effect of the amendment would be to take away from  a party a legal right which had accrued to him by  lapse of time. But this rule can apply only when  either  fresh  allegations  are  added  or  fresh  reliefs sought by way of amendment. Where, for  instance,  an  amendment  is  sought  which  merely  clarifies an existing pleading and does not in  substance add to or alter it, it has never been  held that the question of a bar of limitation is  

17   AIR  1964 SC 11

one of the questions to be considered in allowing  such clarification of a matter already contained  in the original pleading.”

52. The Court further observed that since there was no  

addition to the averments or relief, it was not possible to  

uphold the contention of the plaintiff that by conversion  

of written statement into a plaint in a cross-suit, a fresh  

claim was made or a new relief was sought.  To the facts of  

the  present  case,  therefore,  the  decisions  holding  that  

amendments  could  not  ordinarily  be  allowed  beyond  the  

period  of  limitation  and  the  limited  exceptions  to  that  

rule have no application.   

53. In  Jai  Jai  Ram  Manohar  Lal  v.  National  Building  

Material  Supply18,  A  sued B  in  his  individual  name  but  

afterward soughts leave to amend the plaint to sue as the  

proprietor of a Hindu Joint Family business.  The amendment  

was granted and the suit was decreed.  The High Court,  

however, reversed the decree observing that the action was  

brought by a ‘non-existing person’.  

54. Reversing the order of the High Court, this Court  

(per Shah, J., as he then was) made the following oft-

quoted observations:

18   (1969) 1 SCC 869

“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,  inadvertence  or  even  infraction of the rules of procedure. The Court  always gives leave to amend the pleading of a  party,  unless  it  is  satisfied  that  the  party  Applying, was acting  mala fide, or that by his  blunder,  he  had  caused  injury  to  his  opponent  which may not be compensated for by an order of  costs.  However  negligent  or  careless  may  have  been the first omission, and, however late the  proposed amendment, the amendment may be allowed  if it can be made without injustice to the other  side.”                                  (Emphasis  Added)

55. In  Ganga Bai v. Vijay Kumar19,  an appeal was filed  

against a mere finding recorded by the trial court.  After  

a lapse of more than seven years, amendment was sought by  

which a preliminary decree was challenged which was granted  

by the High Court by a laconic order.  

56. Setting  aside  the  order  of  the  High  Court,  this  

Court stated:  

“The preliminary decree had remained unchallenged  since  September  1958  and  by  lapse  of  time  a  valuable  right  had  accrued  in  favour  of  the  decree-holder. 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.  But  the  exercise  of  such  far-reaching  discretionary  powers  is  governed  by  judicial  considerations and wider the discretion, greater  ought to be the care and circumspection on the  part of the court.”

57. In Haridas Aildas Thadani & Others v. Godraj Rustom  

Kermani20 this Court said that “It is well settled that the  

19 (1974) 2 SCC 393 20  (1984) 1 SCC 668

court should be extremely liberal in granting prayer for  

amendment  of  pleading  unless  serious  injustice  or  

irreparable loss is caused to the other side.  It is also  

clear  that  a  revisional  court  ought  not  to  lightly  

interfere with a discretion exercised in allowing amendment  

in absence of cogent reasons or compelling circumstances.  

58. In B. K. Narayana Pillai v. Parameshwaram Pillai &  

Another21, a suit was filed by A for recovery of possession  

from B alleging that B was a licensee.  In the written  

statement B contended that he was a lessee.  After the  

trial  began,  he  applied  for  amendment  of  the  written  

statement by adding an alternative plea that in case B is  

held to be a licensee, the licence was irrevocable.  The  

amendment was refused.

59. Setting aside the orders refusing amendment, this  

Court stated:

“The purpose and object of Order 6 Rule 17 CPC  is to allow either party to alter or amend his  pleadings in such manner and on such terms as  may be just. The power to allow the amendment is  wide and can be exercised at any stage of the  proceedings in the interests of justice on the  basis of guidelines laid down by various High  Courts and the Supreme Court. It is true that  the amendment cannot be claimed as a matter of  right  and  under  all  circumstances.  But  it  is  equally true that the courts while deciding such  prayers  should  not  adopt  hypertechnical  approach. Liberal approach should be the general  rule particularly in cases where the other side  can  be  compensated  with  the  costs.  Technicalities of law should not be permitted to  hamper  the  courts  in,  the  administration  of  justice  between  the  parties.  Amendments  are  

21  (2000) 1 SCC 712

allowed in the pleadings to avoid uncalled for  multiplicity of litigation.”

60. In  Suraj  Prakash  Bhasin  v.  Raj  Rani  Bhasin  &  

Others22,  this  Court  held  that  liberal  principles  which  

guide the exercise of discretion in allowing amendment are  

that multiplicity of proceedings should be avoided, that  

amendments which do not totally alter the character of an  

action should be readily granted while care should be taken  

to  see  that  injustice  and  prejudice  of  an  irremediable  

character  are  not  inflicted  on  the  opposite  party  under  

pretence of amendment, that one distinct cause of action  

should not be substituted for anther and that the subject-

matter of the suit should not be changed by amendment.

WHETHER AMENDMENT IS NECESSARY TO DECIDE REAL CONTROVERSY:

61. The first condition which must be satisfied before  

the amendment can be allowed by the court is whether such  

amendment is necessary for the determination of the real  

question  in  controversy.   If  that  condition  is  not  

satisfied, the amendment cannot be allowed.  This is the  

basic test which should govern the courts’ discretion in  

grant or refusal of the amendment.

NO PREJUDICE OR INJUSTICE TO OTHER PARTY:

62. The other important condition which should govern  

the  discretion  of  the  Court  is  the  potentiality  of  

prejudice  or  injustice  which  is  likely  to  be  caused  to  

22  (1981) 3 SCC 652

other side.  Ordinarily, if other side is compensated by  

costs, then there is no injustice but in practice hardly  

any court grants actual costs to the opposite side.  

63. The Courts have very wide discretion in the matter  

of  amendment  of  pleadings  but  court’s  powers  must  be  

exercised judiciously and with great care.  

64. In Ganga Bai’s case (supra), this 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. But the exercise of  such  far-reaching  discretionary  powers  is  governed by judicial considerations and wider the  discretion,  greater  ought  to  be  the  care  and  circumspection on the part of the court.”

COSTS:

65. The  Courts  have  consistently  laid  down  that  for  

unnecessary  delay  and  inconvenience,  the  opposite  party  

must be compensated with costs.  The imposition of costs is  

an important judicial exercise particularly when the courts  

deal with the cases of amendment.  The costs cannot and  

should  not  be  imposed  arbitrarily.   In  our  view,  the  

following parameters must be taken into consideration while  

imposing  the  costs.   These  factors  are  illustrative  in  

nature and not exhaustive.

(i) At what stage the amendment was sought?

(ii) While imposing the costs, it should be  taken  into  consideration  whether  the  amendment has been sought at a pre-trial

or post-trial stage;

(iii)The financial benefit derived by one par- ty at the cost of other party should be  properly calculated in terms of money and  the costs be awarded accordingly.

(iv) The  imposition  of  costs  should  not  be  symbolic but realistic;

(v) The delay and inconvenience caused to the  opposite side must be clearly evaluated  in terms of additional and extra court  hearings compelling the opposite party to  bear the extra costs.

(vi) In case of appeal to higher courts, the  victim of amendment is compelled to bear  considerable additional costs.   

All these aspects must be carefully taken into considera-

tion while awarding the costs.

66. The purpose of imposing costs is to:

a) Discourage malafide amendments designed  to delay the legal proceedings;  

b) Compensate the other party for the de- lay and the inconvenience caused;

c) Compensate the other party for avoid- able expenses on the litigation which  had to be incurred by opposite party  for opposing the amendment; and

d) To send a clear message that the par- ties have to be careful while drafting  the original pleadings.

FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH  APPLICATIONS FOR AMENDMENTS:

67. On critically analyzing both the English and Indian  

cases, some basic principles emerge which ought to be taken  

into  consideration  while  allowing  or  rejecting  the

application for amendment.

(1) Whether the amendment sought is im- perative  for  proper  and  effective  adjudication of the case?

(2) Whether the application for amend- ment is bona fide or mala fide?

(3) The amendment should not cause such  prejudice  to  the  other  side  which  cannot be compensated adequately in  terms of money;

(4) Refusing  amendment  would  in  fact  lead to injustice or lead to multi- ple litigation;

(5) Whether the proposed amendment con- stitutionally  or  fundamentally  changes the nature and character of  the case? and

(6) As a general rule, the court should  decline amendments if a fresh suit  on  the  amended  claims  would  be  barred by limitation on the date of  application.

68. These are some of the important factors which may be  

kept  in  mind  while  dealing  with  application  filed  under  

Order VI Rule 17.  These are only illustrative and not  

exhaustive.   

69. The decision on an application made under Order VI  

Rule 17 is a very serious judicial exercise and the said  

exercise should never be undertaken in a casual manner.  

70. We can  conclude our  discussion by  observing that  

while deciding applications for amendments the courts must  

not  refuse  bona  fide,  legitimate,  honest  and  necessary

amendments  and  should  never  permit  mala  fide,  worthless  

and/or dishonest amendments.   

 71. When we apply these parameters to the present case,  

then the application for amendment deserves to be dismissed  

with costs of  Rs.1,00,000/- (Rupees One Lakh) because the  

respondents  were  compelled  to  oppose  the  amendment  

application  before  different  Courts.   This  appeal  being  

devoid of any merit is accordingly dismissed with costs.

…….…….……………………..J.                                          (Dalveer Bhandari)

………….……………………..J.                                         (Harjit Singh Bedi) New Delhi, October 9, 2009.