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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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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Whether it is mandatory to file fresh Vakalatnama alongwith Memo of appeal if same Advocate is representing the appellant in appeal?

 It is, thus, now well-settled that any detect in signing the memorandum of appeal or any detect in the authority of the person signing the memorandum of appeal, or the omission to file the vakalatnama executed by the appellant, along with the appeal, will not invalidate the memorandum of appeal, if such omission or defect is not deliberate and the signing of the Appeal memorandum or the presentation thereof before the appellate court was with the knowledge and authority of the appellant. Such omission or defect being one relatable to procedure, it can subsequently be corrected. It is the duty of the Office to verify whether the memorandum of appeal was signed by the appellant or his authorized agent or pleader holding appropriate vakalatnama. If the Office does not point out such detect and the appeal is accepted and proceeded with, it cannot be rejected at the hearing of the appeal merely by reason of such detect, without giving an opportunity to the appellant to rectify it. The requirement that the appeal should be signed by the appellant or his pleader (duly authorized by a Vakalatnama executed by the appellant) is, no doubt, mandatory. But it does not mean that non-compliance should result in automatic rejection of the appeal without an opportunity to the appellant to rectify the defect. If and when the defect is noticed or pointed out, the court should, either on an application by the appellant or suo motu, permit the appellant to rectify the detect by either signing the memorandum of appeal or by furnishing the vakalatnama. It should also be kept in view that if the pleader signing the memorandum of appeal has appeared for the party in the trial court, then he need not present a fresh Vakalatnama along with the memorandum of appeal, as the Vakalatnama in his favour filed in the trial court will be sufficient authority to sign and present the memorandum of appeal having regard to Rule 4(2) of Order 3 CPC, read with Explanation [c] thereto. In such an event, a mere memo referring to the authority given to him in the trial court may be sufficient. However, filing a fresh Vakalatnama with the memo of appeal will always be convenient to facilitate the processing of the appeal by the office. {Para 15}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6701 of 2005.

Decided On: 10.11.2005

Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh and Ors.

Hon'ble Judges/Coram:

Ruma Pal, A.R. Lakshmanan and R.V. Raveendran, JJ.

Author: R.V. Raveendran, J.

Citation: 2006 (1) ARC 1 (SC), MANU/SC/2173/2005

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Whether the appellate court can permit parties to adduce additional evidence if they have amended memo of appeal not original proceeding?

 We have noticed hereinbefore that the amendments have not been carried out in the pleadings in terms of Order VI, Rule 18 of the Code of Civil Procedure. The said provision being mandatory, if not complied with the consequences flowing therefrom shall ensue.The purported amendments of the Memo of Appeal and the Reference applications, therefore, could not have been the basis for allowing adduction of additional evidence as has been done by the High Court. {Para 76}

 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.

Citation:  MANU/SC/0549/2005.

Read full Judgment here: Click here

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Whether the court can determine rights of parties on the basis of other reported judgments?

 The High Court in its judgment has referred to various decisions showing that the rates specified in the notification issued by the Union of India would be admissible in evidence. There is nothing to show that the said judgments were brought on record in accordance with law. There is also nothing to show that any application under Order VI Rule 17 of the CPC was filed and allowed by the High Court permitting the Respondents to bring the said judgment on records. In fact, several reported judgments have been referred to by the High Court not for the purpose of applying the ratio therein as precedent that such notifications are admissible in evidence but for the purpose of computing the amount of compensation on the basis of the rates at which the market price was fixed therein. The High Court had referred to the judgments whereby the market value of the land had been calculated on the basis of the rates specified in such notification in respect of Vasant Vihar, Defence Enclave and several other areas, without arriving at any finding that the said judgments are admissible in evidence or otherwise have relevance for determination of the market value of the land in question. The rights of the parties, it is well- settled, must be determined on the basis of the case pleaded and proved by leading proper evidence and just not on the basis of other reported judgments [See Surendra Kumar Vakil and Ors. v. Chief Executive Officer, M.P. and Ors., MANU/SC/0227/2004 : (2004)10SCC126 and Sanjay Gera v. Haryana Urban Development Authority and Anr. MANU/SC/0127/2005 : (2005)3SCC207 ].

 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.

Citation:  MANU/SC/0549/2005.

Read full Judgment here: Click here

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Whether pleading before trial court is deemed to be amended if said amendment in incorporated in Memo of appeal?

 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 .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. {Para 73}

 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.

Citation:  MANU/SC/0549/2005

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What factors are to be considered by court while deciding amendment to memo 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.

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. 

IN THE SUPREME COURT OF INDIA

State of Maharashtra Vs. Hindustan Construction Company Ltd.

Hon'ble Judges/Coram:

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

Citation: (2010) 4 SCC 518

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Whether appellant is required to pay additional court fees if additional relief are claimed in Civil appeal?

In Nemi Chand v. Edward Mills co. Ltd., , dealing with the question of court-fees payable in appeal for additional relief, it was observed that a memorandum of appeal, as provided in ART. 1 OF Schedule 1, of Court-fees Act , has to be stamped according to the value of the subject-matter in dispute in appeal; in other words, the relief claimed in the memorandum of appeal their Lordships observed, determines the value of the appeal for purposes of court-fees.

Bombay High Court

Francisco Luis Jose D Souza vs Vithal Bhadu Tamboskar on 18 November, 1988

Equivalent citations: AIR 1989 Bom 303, 1988 (2) BomCR 440, (1989) 91 BOMLR 570

Bench: Couto, Kamat

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