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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