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: When an appeal is preferred the memorandum of appeal has the same position like the plaint in a suit and appellate Court can permit amendment of Memo of appeal

To effectively and finally adjudicate this controversy necessary pleadings ought to be available. To highlight this real controversy it may become necessary to amend the pleadings. 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 XLI, 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. It was declined on the sole ground that it was delayed by six years because the High Court does not refer to any other ground for rejecting this application. The High Court has not held the averments in the application about the various decisions rendered by the same High Court as being untrue or otherwise. Therefore, the foundation for the amendment is neither shaken nor knocked out. We are, therefore, left to the only question whether the appellant should be denied an opportunity to agitate what is the market value of the land and what would be justly due to him on the ground of delay in moving the application for amendment of pleadings. 

8. Accordingly, interest of justice demands that we allow the appeal, set aside the order of the High Court rejecting the application and grant the amendment application and remit the matter to the High Court. The High Court will permit the respondent to raise any contention permissible in law and dispose of the appeal on merits.

  IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3620 of 1982 

Decided On: 16.11.1982

Harcharan Vs. State of Haryana

Hon'ble Judges/Coram:

D.A. Desai and R.B. Misra, JJ.

Citation: AIR 1983 SC 43, MANU/SC/0166/1982.

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