India: Rejection Of Amendment Application On Grounds Of Limitation

Last Updated: 24 May 2017
Article by Sonam Mhatre and Umang Mehta

Introduction

Largely, under the provisions of Civil Procedure Code, 1908 any party is permitted to amend its pleadings in order to bring out the true and correct facts necessary for determining the real question in controversy and generally the Courts have adopted a liberal approach in allowing them to do so, so as to ensure that no material fact is left out while determining the matter in issue.

In the case of Chander Kanta Bansal V. Rajinder Singh Anand, AIR 2008 SC 2234, the Hon'ble Supreme Court held that amendments may be allowed liberally but it should not cause injustice or prejudice of an irremediable nature to the other party. On one hand, where allowing amendments seems just and reasonable there have been cases in which the parties have sought to make Amendments with malafide intent, at a belated stage, in the proceedings, so as to either bring a time-barred cause of action within the statute of limitation or to expand the scope of the said matter which would otherwise be a distinct and separate cause of action. Hence, over a period of time, various judgements have been passed wherein the amendments, even though as a principle being generally permitted, have been rejected in the interest of justice.

The Law

Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code') which enables the parties to make amendments to the plaint, reads as under;

"17. Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Interpretation

The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. However, it was again restored by the Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails the absolute discretion of the Court to allow an amendment at any stage of the proceedings. Now, if an application is filed after the commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier

It is thus evident that the need was felt by lawmakers to amend the said Section in order to restrict the absolute discretion of the Court and lay some guidelines in situations when the Amendments can be allowed and when the same can be disallowed. Although the said Amendment was basically to restrict the Amendments to be allowed only once trial had commenced but there have been instances when amendments sought by applicant have been gravely irrelevant and have been rejected by the Judges. One such Case when the Amendments were rejected is presented hereinbelow:

This Article deals with one such situation where Court using its discretion disallowed an Amendment. Briefly stated, an amendment application would be rejected by the Courts if, on date of filing of such application, the facts sought to be introduced in the guise of the amendment, are such that the proceedings if filed on the date of the amendment application (with the amended facts) would be expressly barred by the law of limitation,

Case Law:

a) The decision of the Hon'ble Supreme Court in the case of South Konkan Distilleries & Anr Vs Prabhakar Gajanan Naik & Ors cited at (2008) 14 SCC 632

The SLP in question was preferred with a view to challenge the Order passed by the Hon'ble Bombay High Court at Goa in a Writ Petition wherein the order passed by the trail Court was affirmed by the Writ Court (i.e the Bombay High Court). The Trial Court had, by its order dated 5th February 2001, rejected the application for amendment of Written Statement and Counter Claim of the Appellant Defendant.

The Trial Court had come to the conclusion that if the amendment application was allowed then the cause of action would, in terms of the facts sought to be introduced, then be said to have arisen in the year 1986. Therefore, the prayer for amendment of written statement and counter claim for enhanced damages, based on the amended facts, was clearly ex-facie barred by the law of limitation and such an amendment could not be allowed.

  • While passing the Order, the following observations on law of amendments by the Hon'ble Bench are particularly relevant:

    "11. Before we deal with the course of orders of the courts below, as to whether the application for amendment of the written statement and the counterclaim was rightly rejected or not, let us consider laws on the question of allowing or rejecting a prayer for amendment of the pleadings when plea of limitation was taken by one of the parties in the suit. It is well settled that the court must be extremely liberal in granting the prayer of amendment, if the court is of the view that if such an amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub serve the ultimate cause of justice and avoid further litigation."

    From the above and based upon the judgement and arguments cited by both the parties, it was observed by the Hon'ble Bench that one cardinal principle which can be applied while allowing or rejecting an application for amendment of the pleadings is that, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application, then the courts would not be inclined to grant such amendments.

    Accordingly, the Hon'ble Supreme Court held that on the date of filing of the amendment petition, the claim as made by the appellants in their amendment petition was already barred and that no purpose would be achieved by allowing the amendment which has already stood barred by the law of limitation.

CONCLUSION:

It can be thus summarised that as a general rule, amendments to pleadings would be allowed if an application is moved at a pre-trial stage and even at a later stage if the party wants to introduce the facts in respect of subsequent development as it would be necessary to avoid multiplicity of proceedings. However, the Courts would not be inclined to grant the amendment if the very basic structure of the plaint is changed or the amendment itself is not bona fide. In a case where the facts were known to the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleadings at the initial stage, the amendment would also be rejected. The amendment is not permissible if the very basic structure of the plaint is changed or the amendment itself is not bona fide.

In the present case, one of the major reasons for rejecting the Amendment was, an undue delay in the filing of the application for amendment, without there being sufficient cause shown to condone the delay. So also, Courts would be slow in approving amendments in cases where the Amendment applied is such which if filed as a fresh suit would be barred by law of limitation, ought to be rejected.

To conclude, amendment of pleadings cannot be claimed by a party as a matter of right nor can it be denied by the Court arbitrarily.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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