Amendment of Memorandum of Appeal in First Appeal: When It May Be Allowed, and Why It Does Not Amend the Trial Court Pleadings

 A first appellate court may permit amendment of the memorandum of appeal, or grant leave to urge an additional ground, where the amendment is necessary for effective adjudication of the real controversy and does not introduce a wholly new case causing irremediable prejudice to the respondent. However, such permission does not by itself amend the plaint, written statement, claim petition, or any other pleading before the trial court; the amendment must ordinarily be carried out in the appellate record itself.

Introduction

In appellate practice, applications are often made for amendment of the memorandum of appeal after filing, and sometimes even at an advanced stage of hearing. The real difficulty for courts is not whether such power exists, but how far that power extends and what exactly changes when the amendment is allowed.

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Supreme Court: Memo of appeal if permitted to be amended would not amount to amendment of original pleading

Mr. Salve submitted that the bar under Section 25 of the Act must be considered having regard to Section 53 thereof which provides for applicability of the provisions of the Code of Civil Procedure. The learned counsel urged that the Respondents had already filed an application for amendment of Memo of Appeal in terms of Order 41, Rule 3 of the Code of Civil Procedure, which having been allowed, would amount to amendment of the claim application in the reference case itself. Strong reliance in this behalf has been placed on Harcharan v. State of Haryana   MANU/SC/0166/1982 : AIR1983SC43 Ghaziabad Development Authority v. Anoop Singh and Anr.   MANU/SC/0041/2003 : [2003]1SCR522 . {Para 73}

We do not agree. The pleadings before the Trial Court are the basis for adduction of evidence either before the Trial Court or before the Appellate Court. By amending the memo of appeal the original pleadings cannot be amended.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6825-26 and 6827-6832/2003, 

Decided On: 07.09.2005

Union of India (UOI) Vs. Pramod Gupta (D) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Ashok Bhan and S.B. Sinha, JJ.

Author: S.B. Sinha, J.

Citation: 2005 INSC 409,MANU/SC/0549/2005.

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Supreme Court: New grounds containing new material/facts could not have been introduced for the first time in an appeal when admittedly these grounds were not originally raised in the arbitration petition for setting aside the award

The question then arises, whether in the facts and circumstances of the present case, the High Court committed any error in rejecting the appellant's application for addition of new grounds in the memorandum of arbitration appeal. As noticed above, in the application for setting aside the award, appellant set up only five grounds viz., waiver, acquiescence, delay, laches and res judicata. The grounds sought to be added in the memorandum of arbitration appeal by way of amendment are absolutely new grounds for which there is no foundation in the application for setting aside the award. Obviously, such new grounds containing new material/facts could not have been introduced for the first time in an appeal when admittedly these grounds were not originally raised in the arbitration petition for setting aside the award. {Para 28}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2928 of 2010 

Decided On: 01.04.2010

State of Maharashtra Vs. Hindustan Construction Company Ltd.

Hon'ble Judges/Coram:

R.V. Raveendran and R.M. Lodha, JJ.

Author: R.M. Lodha, J.

Citation: 2010 INSC 191, MANU/SC/0215/2010.

Read full judgment here: Click here.

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Supreme court: Do the principles relating to amendment of pleadings in original proceedings apply to the amendment in the grounds of appeal?

 Do the principles relating to amendment of pleadings in original proceedings apply to the amendment in the grounds of appeal? Order XLI Rule 2 CPC makes a provision that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court. Order XLI Rule 3 CPC provides that where the memorandum of appeal is not drawn up as prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended. {Para 20}

21. The aforesaid provisions in CPC leave no manner of doubt that the appellate court has power to grant leave to amend the memorandum of appeal. As a matter of fact, in Harcharan v. State of Haryana   MANU/SC/0166/1982 : (1982) 3 SCC 408 this Court observed that the memorandum of appeal has same position like the plaint in the suit. This Court said:

...When an appeal is preferred the memorandum of appeal has the same position like the plaint in a suit because plaintiff is held to the case pleaded in the plaint. In the case of memorandum of appeal same situation obtains in view of Order 41, Rule 3. The appellant is confined to and also would be held to the memorandum of appeal. To overcome any contention that such is not the pleading the appellant sought the amendment....

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2928 of 2010 

Decided On: 01.04.2010

State of Maharashtra Vs. Hindustan Construction Company Ltd.

Hon'ble Judges/Coram:

R.V. Raveendran and R.M. Lodha, JJ.

Author: R.M. Lodha, J.

Citation: 2010 INSC 191, MANU/SC/0215/2010

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