Source: Bombay High Court

Why in News?

The Bench comprising of Justice Manish Pitale observed the issue, of whether the specific mandate of the amended Order XI of the Code of Civil Procedure, 1908 (CPC) applicable to a proposal for amendment of the plaint.

• The Bombay High Court (HC) gave the observation in the matter of Khanna Rayon Industries Pvt. Ltd. v. Swastik Associates & Ors.

Background

• The Bombay HC heard an application of amendment in a commercial suit seeking to place on record documents that were admittedly in the power, custody, control or possession of the Plaintiff at the time of filing of the suit.
• The Applicant /Plaintiff sought the aforementioned amendment of the plaint in terms of one of the two exhibits that were submitted with the plaint.
  • As per the proposed amendment in the second Exhibit, the plaintiff sought to place two documents on record.
• The defendant raised an objection to the proposed amendment contending that documents could not be introduced without adhering to the requirements of amended Order XI of the CPC, as amended by the Commercial Courts Act, 2015.
• The plaintiff contended that the proposed amendment was within the ambit of Order VI Rule 17 of the CPC as the Commercial Courts Act, 2015 brought specific amendments in the CPC but VI Rule 17 was not amended.
• Plaintiff asked court to adopt a liberal approach and allow the amendment to determine the real question in dispute.

Court’s Observations

• The Court observed that “It cannot be said that the rigors introduced in procedural law i.e., the CPC as per the Commercial Courts Act can be ignored because Order VI Rule 17 of the CPC has not been amended in the context of commercial suits”.
• The Court further noted that “An application, which in pith and substance is an application relatable to Order XI of the CPC, as applicable to commercial suits, can masquerade as an application for amendment under Order VI Rule 17 of the CPC”.

Amendment of Pleadings

• According to Order VI Rule 1 of the CPC, "Pleading", shall mean a plaint or written statement, which includes all the details required by a party to comprehend the contentions of the other party.
• An amendment of pleading under CPC can be performed under Order VI Rule 17.
• The first part of the rule gives discretionary power to the court by stating it ‘may’ allow an application for amendment to determine the real question in the dispute.
• The second part makes it mandatory for the court to allow the application if it finds that the parties could not have raised the issue in spite of the due diligence before the commencement of the trial.
  • The second part as proviso was added to Order VI Rule 17 was added in year 2002.
• In Salem Advocate Bar Association, Tamil Nadu v. Union of India & Ors. (2005), the Supreme Court has held that the object of adding the proviso is to prevent frivolous applications which are filed to delay the trial.

Cardinal Principles

Hon'ble Supreme Court in the matter of Revajeetu Builders and Developers v. Narayanaswamy & Sons (2009) laid down some basic principles for allowing or rejecting the application under Order VI Rule 17:

1. Whether the amendment sought is imperative for proper and effective adjudication of the case?
2. Whether the application for amendment is bona fide or malafide?
3. The amendment should not cause such prejudice to the otherside which cannot be compensated adequately in terms of money;
4. Refusing amendment would in fact lead to injustice or lead to multiple litigation;
5. Whether the proposed amendment constitutionally 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.

Legal Provisions

• Order VI Rule 17 of CPC - 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.
• Order XI 1(5) of CPC – The plaintiff shall not be allowed to rely on documents, which were in the plaintiff's power, possession, control or custody and not disclosed along with plaint or within the extended period set out above, save and except by leave of Court and such leave shall be granted only upon the plaintiff establishing reasonable cause for non-disclosure along with the plaint.