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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Whether a court can permit the appellant to take additional grounds of appeal which were not in the memo of appeal?

 Order 41 Rule 2 of CPC is extracted hereunder for ready reference:

Order 41 Rule 2: Grounds which May be Taken in Appeal - 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 under this rule.

Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

9. A plain reading of the said provision would amply make the point clear that the appellate Court has got ample power to permit the appellant to raise additional grounds.

IN THE HIGH COURT OF MADRAS

C.R.P. (NPD) Nos. 1843 and 1844 of 2010 and M.P. No. 1 of 2010

Decided On: 09.08.2010

Pappireddy  Vs.  Ramaswamy Reddy 

Hon'ble Judges/Coram:

G. Rajasuria, J.

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