Supreme Court: What are leading principles for deciding application for amendment of pleading?

70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 Code of Civil Procedure operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred Under Order II Rule 2 Code of Civil Procedure is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the Code of Civil Procedure.

(iii) The prayer for amendment is to be allowed.

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi and Ors.,   MANU/DE/2236/2022)

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5909 of 2022 

Decided On: 01.09.2022

Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Ors.

Hon'ble Judges/Coram:

Aniruddha Bose and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: 2022 INSC 896, MANU/SC/1093/2022

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Whether court can insist on plaintiff to prove his case if it can not allow withdrawal of implied admission in a written statement?

What is important to note is that the proviso to Rule 5 gives to the Court the power to insist that notwithstanding the fact that there is an implied admission, because of non-traversing of a fact, the plaintiff proves his statement by adducing evidence. The exercise of this discretion cannot be arbitrary and the Court may have to bear in mind the standard of drafting obtaining at the place, where the suit is instituted. Thus, in a given case, when the counsel's default leads to an implied or express admission, the remedy of the defendant does not lie in withdrawing the admission by making amendment in the written statement, but in making out a case for the Court to exercise its powers under the proviso to Rule 5 of Order 8 and insist upon the plaintiff to prove his case notwithstanding the admission - implied or express - made in the written statement. In the case at hand too, if the learned trial Court finds that non-traversing of the statements made in paras 3 and 15 to 19 of the plaint have been impliedly admitted by the defendant and still if the defendant satisfies the learned trial Court that such admission was due to fault of his earlier counsel, the Court may, if satisfied, insist on the plaintiffs, to prove the statements made in paras 3 and 15 to 19 of the plaint.

36. Coupled with the above, it is pertinent to note that apart from the fact that Order VIII, Rule 5 permits the Court to insist on a plaintiff to prove a fact notwithstanding an implied admission, which the defendant might have made, even Section 58 of the Evidence Act makes it clear that notwithstanding a defendant's admission, express or implied, made in his written statement, a Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

IN THE HIGH COURT OF GAUHATI

Decided On: 30.10.2006

Uttam Chand Kothari Vs.  Gauri Shankar Jalan and Ors.

Hon'ble Judges/Coram:

I.A. Ansari, J.

Citation: AIR 2007 Gau 20, 2007 (1) GLT 37, MANU/GH/0209/2006

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Whether court can permit withdrawal of admission by amendment of written statement?

I find from the impugned order that the Trial Court has merely

reproduced the head note in the judgment delivered in Usha

Balasaheb Swami Vs. Kiran Appaso Swami [AIR 2007 SC 1663].

There is not a single reason assigned in the impugned order allowing

the entire application Exh.29. In my view, an application for

amending

the written statement, especially when the amendment is

sought to delete certain admission and avernments, which may

favour the other side, cannot be lightly permitted. Deletion of certain

avernments and statements favouring the plaintiffs, by amending the

plaint, is a serious aspect. While delivering such an order, the Trial

Court is expected to apply it's mind and only after concluding that

the deletion is necessary, that an order could be passed. Imposing

costs is not an excuse to allow an application by an order which

suffers from lack of reasons.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.11 OF 2019

Kaka  Sahebrao Kapse,   Vs   Maruti  Apparao Disle,

( CORAM : Ravindra V.Ghuge, J.)

DATE : 26/09/2019

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Whether defendants can be permitted to withdraw admissions given in written statement on ground of misconduct of their Advocate?

The defendant Nos. 3 and 4 filed a written statement in civil suit No. 140/1992 on 08.01.1993. The amendment application was filed by them on 07.03.2006 i.e. more than 13 years after the written statement was filed. The delay is inordinate. But the delay in all cases, cannot be fatal because that party may be pleading new events or the new events may prompt the party to mould the defence. But the fact here is that, the application for amendment, is filed 13 years after the original written statement is filed. Now, the contents of the amendment application seeking amendment to the written statement, become very material. They show that the defendant No. 1 is the real brother of the defendant No. 3 and it is alleged that because of that, the defendant Nos. 3 and 4 had trust in defendant No. 1. It is specifically alleged that the defendant No. 1 approached the defendant Nos. 3 and 4 and told them that he would engage a Lawyer for them and the defendant Nos. 3 and 4 would have to sign the papers prepared by the Advocate. It is further alleged that they signed the blank Vakalatnama. Further, they contend that they were asked by the defendant No. 1 to come to the Court and sign the written statement before the Court Superintendent and accordingly, the defendant Nos. 3 and 4 went to the Court and signed the written statement, but they were not supplied the copies of the written statement and contents of the written statement, were not explained to them. The defendant Nos. 3 and 4 contend that they came to know of the contents of this written statement in civil suit No. 140/1992 and the wrong statements made therein only when they received a copy of the plaint in civil suit No. 112/2005. They contend that they, therefore, issued a notice to their Advocate Shri Joshi withdrawing the Vakalatnama. It is in this background that the amendment of the written statement was sought by the defendant Nos. 3 and 4. The learned Counsel for the respondent, made much ado about the conduct of the Lawyer appearing for the defendant Nos. 3 and 4 and he submits that the conduct of the said Lawyer, was unbecoming and he had drafted the written statement without letting the defendants know the contents. The conduct of the Lawyer here, in fact becomes immaterial. I would only say that prima facie, there is no substance in the contention about the conduct of the Advocate. Prima facie, it appears that both the defendants Nos. 3 and 4 are educated persons. They have signed in English. They had gone with their brother to the Court and had signed the written statement in presence of the Superintendent of the Court. Further, the contents of the amendment application, do not make any kind of allegations against the Lawyer, but all the allegations are made against the defendant No. 1, who is the brother of the defendant No. 3. The learned Counsel for the respondent, should not have, therefore, made an ado about the conduct of Shri Joshi Advocate. It is difficult to assume at this stage that the defendant Nos. 3 and 4 did not know the contents of the written statement for all these 13 years. I may mention further that last para of the old written statement,i.e. para 31 and the contents of that para, are very material. The defendant Nos. 3 and 4 have signed the written statement, which is below that last para. It is difficult to accept that without reading that last para, they had signed the written statement. I may observe here that the learned Judge of the Trial Court while deciding the suit, should not get influenced by these observations because these observations are prima facie observations. Be that as it may, the fact is that the defendants now want to resile from what is stated in the original written statement. We have seen that there is an inordinate delay of 13 years in filing an amendment application. It is difficult to accept prima facie that the defendants were unaware of the contents of the written statement and they came to know of it only on service of plaint in second suit. There is no other explanation in the amendment application for such delay and I do not find the explanation for delay as stated, to be very convincing. 

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether one defendant can object to amendment application filed by co-defendant?

The foremost contention that was raised by the learned Counsel for the respondent, is that there is no reason or cause for the defendant No. 1 to raise the objection to the amendment sought to be made by the co-defendant. He submits that it is the plaintiffs' objection alone, which needs to be considered and not of the co-defendant. He also submits that the dispute could be only in between the plaintiffs and the defendants and that alone needs to be resolved and not the dispute between the two sets of the defendants. He further submits that the plaintiffs gave no objection to such amendment being allowed and, therefore, there was nothing wrong when the amendment was allowed. While considering the application, the Court has to see if such amendment is allowed, any prejudice will be caused to the plaintiffs and whether any of the rights of the plaintiffs, would be affected or not. There is no doubt that in the routine course, the Courts are required to decide the question as to the granting of the application for amendment vis-a-vis the plaintiff and the defendant alone. I do not, however, agree with the submission of the learned Counsel Shri Sharma that the Court need not consider any of the objection of the co-defendant/ the defendant No. 1 in the present case. Apart from this case, the Court would certainly be required to decide a dispute between the two defendants when their interest could be adverse or become adverse. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants. Yet another reason why such an objection of the co-defendant, needed to be heard, is whether the other defendant was withdrawing any admission to his detriment. If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. An admission has been defined in Section 17 of the Evidence Act as follows:

Section 17- Admission - An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." Not only Section 17 here is important, but to decide this question we need to look into two more provisions. Those provisions are Section 18 of the Indian Evidence Act as well as Rule 1 of Order 12 of Civil Procedure Code. What Section 18 says, is that a statement by a person interested in the subject matter, is an admission. It says if a person having proprietary or pecuniary interest in the subject matter of proceeding gives admissions, all admissions if they are made during continuance of interest of the person making the statements, are admissions. In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are "any other party" and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

The above discussion clearly goes to show that the codefendant does have a right to challenge or oppose the amendment sought to be made by the other defendants.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition Nos. 691 of 2008 and 8 of 2009

Decided On: 18.03.2009

 Shri Armando Pereira Vs. Shri Jude D'Souza S/o John D'Souza and Ors.

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Whether the court can permit the witness to withdraw admission given in cross-examination by filing an additional affidavit of examination in chief?

On hearing the learned counsel for the parties and on perusal of
the pleadings, the affidavit previously filed and the affidavit which is sought
to be filed, it appears that the trial court committed a glaring mistake in partly
allowing the application filed by the respondent no. 1 and permitting the
respondent no. 1 to resile from the clear and categorical statement made in
the   affdidavit   of   the   officer   of   the   respondent   no.1.     The   officer   of   the
respondent no. 1, in para 6 of the affidavit, had stated thus ­­
6. That Shri Suresh Dhawale, the plaintiff was earlier
engaged in the business of agricultural equipments. Later
on   he   started   seeds   business.   On   many   occasions   he
expressed   his   desire   to   have   a   distributorship   of   the
defendant company. But as the plaintiff was new to the
seed business and as the distributor of the defendant was
already at Akola, no distributorship was and could be given
to the plaintiff.
It appears on a reading of para 6 that it was categorically stated
by the officer in his evidence that the petitioner was previously engaged in
agricultural business, though he later on started the seeds business and on
many occasions he had expressed his desire to have distributorship of the
defendant company. It is also clear from para 6 of the affidavit that the
respondent no.1 did not give and was not able to give the distributorship to
the   petitioner   as   the   petitioner   was   new   in   the   seed   business   and   the

respondent no. 1 already had a distributor at Akola.  This is not a case where
a word ‘not’ is omitted due to a typographical mistake.  There were clear and
categorical   statements   made   by   the   witness   in   his   affidavit.   By   filing   an
additional affidavit, the officer of the respondent no. 1 wanted to state that it
was not correct to say that on many occasions, the petitioner had expressed
his desire to have a distributorship of the defendant company.  Para 6 of the
previously   filed   affidavit   clearly   states   the   reason   for   not   granting   the
distributorship to the petitioner.  The statements in para 6 did not contain any
typographical mistake.  The statements in the entire paragraph were not only
grammatically correct  but the statements  were also clear and  categorical.
There was no question of occurrence of a typographical error in para 6 of the
originally   filed   affidavit.   By   permitting   the   respondent   no.1   to   file   an
additional   affidavit,   the   trial   court   literally   permitted   the   witness   of   the
respondent no. 1 to resile from a categorical statement made by him in para 6
of the affidavit. The witness could not have been permitted to withdraw his
clear and categorical statements in his affidavit.   It cannot be said that the
trial court was justified in allowing the application merely because it was
denied by the respondent no. 1 in the written statement that the petitioner
had   approached   the   respondent   no.   1   for   distributorship.     The   judgment
reported   in     1997   A.I.H.C.   3187     and   relied   on   by   the   counsel   for   the
respondent   no.   1   is   inapplicable   to   the   facts   of   this   case.     In   fact,   the
judgments reported in AIR 20009 S.C. 1604  and 1999 (Supp.) Bom.C.R. 81
and relied on by the counsel for the petitioner have a bearing on the issues

involved in this case and support the case of the petitioner. 
For the reasons aforesaid, the writ petition is partly allowed.  The
impugned order dated 14.3.2012   is quashed and set aside and it is hereby
ordered that the respondent no. 1   cannot be permitted to state the facts
stated  in paras 2 & 3 of the Additional affidavit  at Exh. 101.  

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
Writ Petition No. 3853 of 2012

Suresh Uttamrao Dhawale Vs  M/s Ankur Seeds Private Ltd. 

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM  : SMT. VASANTI A. NAIK, J.
 DATE     :   1st November, 2012.

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Whether admission in pleading can be withdrawn?

 What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” 

Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.” (Emphasis supplied) We agree with the position in Nagindas Ramdas (supra) and as endorsed in Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava (supra), does not reflect the correct legal position and it is overruled.

However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in a substantive proceedings. 

Supreme Court of India

Ram Niranjan Kajaria vs Sheo Prakash Kajaria & Ors on 18 September, 2015

Bench: Anil R. Dave, Kurian Joseph, Amitava Roy

Citation;(2015) 10 SCC203

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