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O6R17 (AMENDMENT OF PLEADINGS) CASE LAW: KAILASH V NANKU (2005)
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O6R17 (AMENDMENT OF PLEADINGS) CASE
LAW: KAILASH V NANKU (2005)
AUTHORED BY -
DHANANJAY BHARDWAJ
KIRIT P MEHTA
SCHOOL OF LAW, NMIMS, MUMBAI
INTRODUCTION TO CPC
The Code of Civil Procedure of 1908 regulates the laws governing the
practises and procedures to be followed
in the Civil Courts.
The definition of the term CODE is "a collection of legislation
designed to eliminate inconsistency and duplication."
The
primary purpose of this code of civil process
is to consolidate and revise
the laws governing the
procedure and practises of the Indian Civil
Courts. In the preamble of the code, it was stated that it was adopted
to consolidate and alter the laws governing
the process to be followed
in civil courts with civil
jurisdiction in India. The Civil Procedure Code governs all civil court
proceedings and the parties involved until the implementation of the judgement
and order.
The
purpose of procedural law is to execute substantive law's principles. This Code provides
equitable justice by upholding rights
and responsibilities.
The Civil Procedure Code was adopted
in 1908 and became effective
on January 1, 1909. The Code applies to the whole nation with
the exception of –
·
The Jammu and Kashmir State
·
State of Nagaland
and tribal regions
The
respective state governments may also
make the provisions of this code applicable to the whole or a portion
of the State of Nagaland
or similar tribal
territories by notifying the official gazette.
This
code applies to the designated
regions of the former State of Madras (Lakshadweep), the East Godavari, West Godavari, and Visakhapatnam agencies
(Now in Andhra
Pradesh State).[1]
The Code is comprehensive in other areas
but exhaustive in the things
it specifically addresses. The code's creators were unable
to anticipate potential conditions that might arise in future lawsuits and
could not have provided a method for them. In order to address these situations
(where the code could not offer a method), the law's authors
(the legislature) granted
the court inherent powers in
accordance with natural justice, equity, and good conscience.
This Code's general procedural nature ensures that it does not conflict
with any current local or special laws.
The special law will take precedence over the civil procedure code in any situation
where there is a dispute between them. When a specific area of local or general
law remains silent, the civil procedure code's rules take precedence[2].
Introduction to Order VI Rule 17: Amendment of Pleadings
The CPC's Order VI Rule 17 ("O.VI R.17") outlines the steps for
amending a pleading in a lawsuit. It gives the court the authority to grant a
party's request to change the pleading while also placing constraints on how much discretion the courts may exercise. The proviso added
to R.17 following the CPC (Amendment) Act, 2002, which states that
courts can use their discretion while allowing the application of amendment
when they are fully satisfied that the party
exerted "due diligence" but was unable
to incorporate the changes they are now seeking
by way of amendment, is of the utmost significance in this regard.
By way of an amendment in 1999, the aforementioned provision was removed
due to the large number of petitions submitted to drag out the litigation process, which eventually increased the number
of cases still pending. The exclusion was done in an effort to expedite the
trial and reduce the length
of the legal dispute. After
some sort of uprising from the oppressed
section of society, the rule
was eventually reinstated, but with a new proviso that gives the courts the authority
to consider such arguments in cases where parties have done their due diligence
but weren't given the chance to raise the issue previously.
The
SC and the HCs have interpreted the position of the law regarding the amending
of pleadings following the 2002
revision and the addition of proviso
in R.17. In some cases, courts prioritise the interests
of justice over the interests
of the parties when deciding
whether to accept an amendment. The courts
repeatedly iterated the general guidelines for amending pleadings.
However,
O.VI R.17 concentrates on something
more significant. The approach used by the courts is lenient
when offering the opportunity to change the pleadings prior to the trial;
nevertheless, after the trial has begun, the courts are constrained in their ability
to grant such motions.The
revision of pleadings cannot be requested as a matter of right by a party, nor
can it be refused arbitrarily by the court, based on the aforementioned
propositions and decisions of the lower courts and the Supreme Court.
Nonetheless, the discretion to be exercised by
the Court is governed by the principles outlined
in the exception to Rule 17 and is dependent on the specifics of each case. In light of the
fact that O.VI R.17 is meant to promote the purposes of justice and not to
oppose them, modifications are granted as a general rule and are denied only in
exceptional circumstances.
To prevent duplication, it is in the interest of justice that all topics
related to a given action be resolved in a single suit, and parties should be
free to amend their pleadings during the court's processes. While doing so, it
will be up to the courts to determine if the change has any bearing on the processes in question, and it should
have no negative
impact on the lawsuit. In the matter of Anita v. Anil[3],
the Supreme Court recently issued a notice in the SLP filed against the Bombay High Court's verdict,
which had followed
the dicta of Vidya Bai. It is just a question of time until we get the proper legal
position.[4]
Related
Case Laws[5]
The
aforementioned 2002 alteration was contested in Salem Bar Association, Tamil Nadu v. Union of India[6],
as did the provision inserted to Rule 17. The Supreme Court affirmed the
constitutionality of the aforementioned regulation and noted that the legislature, after removing it through the 1999 amendment,
reintroduced it in an effort to limit or avoid frivolous petitions submitted to
postpone the trial. In addition, the amendment restricts the courts' unlimited
ability to permit revisions at any point of the suit procedures.
Similarly,
in Chander Kanta Bansal v. Rajinder
Singh Anand[7],
the Supreme Court highlighted the 2002 modification and offered light on its
influence on the amending of pleadings. In the given instance, the Supreme
Court noted that the amendment in question was enacted to accelerate the
procedures, but that by attaching a proviso to it, the legislature attempted
not to make it impossible for parties to submit an application for
modification. The purpose of the stipulation is to provide limited power to the
courts, based on their subjective satisfaction, to permit some alterations to the procedures. However, the final attention will be on the party seeking the amendment to
demonstrate its need, good faith, and the necessity of seeking it sooner
notwithstanding thorough diligence.
In
Usha Balasaheb Swami v. Kiran Appasso
Swami,[8]
("Usha Balasaheb"), the dispute included the division of a
property, and an amendment motion was filed to prevent defendants 3 through 7
from receiving the suit property on the grounds that they were illegitimate
offspring. The trial court denied the request on the grounds that it would eventually alter the essence of the case and bias the
opposing party. The issue here is whether a statement that has already been acknowledged
in the complaint may be modified by submitting an application. The High Court
responded in the negative, and the Supreme Court, although granting the motion
for revision, ruled that the changing of pleas and the addition of additional
reasons in the pleadings are permissible so long as they do not impede the
whole judicial process. The line of reasoning presented in this case was valid;
nonetheless, the Supreme Court proceeded with the split of revisions of plaint and amendments of the written
statement and the associated process,
which, to some degree,
produced an entirely new problem in this dilemma.
The Delhi High Court ("DHC")
in the matter of Inderjeet v.
Agricultural Produce Market Committee[9],
where the appellant wants to modify the petition to include new facts.
Respondent challenged it on the grounds that such a modification is
time-barred. DHC, while evaluating the issue of on what basis an amendment may be requested and granted, determined that, if required and in the interest
of justice, an amendment can be granted so that the dispute can be resolved
completely. Similarly, in the case of Saif-ul-Islam
Company v. Roshan Lal Arora,[10]
the DHC was confronted with the same difficulty involving a second amendment
application filed by the plaintiff since he was unaware of certain facts at the
time he sought the first amendment. In this respect, the Delhi High Court
adopted a fairly lenient stance and permitted the modification, noting that the
primary purpose of an amendment is to get to the heart of the issue, and that
it should be permitted so long as it does not damage the opposing side. In the
recent case of P.M. Salim v. Vasudevan
Namboothiri[11],
where the question was whether or not a wilful admission may be retracted by means of an amendment, the Kerala High Court restated the same argument. In this case, the
Kerala High Court examines the situation and refuses to accept the amendment
motion on the grounds that such withdrawal by amendment would
harm the plaintiff
and displace the plaintiff's
argument.
Importance of Amendment of Pleadings in CPC[12]
It
is possible to draw the conclusion that the modification of pleadings cannot be
requested by a party as a matter of right, nor can it be refused by the Court
arbitrarily, in light of the proposals and decisions that have been made by the
higher courts as well as the Supreme Court. On the other hand, the discretion
that the Court is tasked with exercising is subject to the facts and
circumstances of each individual case, and it is governed
by the principles that are outlined in the
proviso to Rule 17. As a result of the fact that O.VI R.17 is designed to
assist in furthering the goals of justice rather than undermining them, it is
customary to approve proposed adjustments and very rarely does it become
necessary to reject them.
In
the interest of justice, it is essential that all of the issues associated to a
given litigation be resolved in a single suit in order to prevent multiplicity.
In addition, parties should have the freedom
to amend their
pleadings while the suit is still
in progress. While doing so, the burden
of determining whether the change has any bearing on the proceedings at
hand and whether it will have any negative impact on the litigation will fall
on the courts. The Supreme Court of India, in the case of Anita v. Anil21,
has only just issued a notice in the Special Leave Petition (SLP) that
was filed against the Bombay High Court verdict that had followed the dicta of
Vidya Bai.
Despite this, the matter is still up to debate.
When we finally do get the legislation to reflect the true stance, it will only be a
question of time.
Kailash V Nanku (2005)
Facts of
the Case[13]
In accordance with the Presidential Notification of November 7, 2003,
elections for the Uttar Pradesh Legislative Council were conducted recently. It
was decided that the appellants should be chosen. Respondent No. 1 submitted a challenge
to the election of the
appellant in the form of an election petition in accordance with Section 80 of the Representation of the People
Act, 1951 (hereinafter referred to simply as "the Act"). The
appellant was given a copy of the election petition together with the summons
that required his presence in court on 6.4.2004. The appellant
was ordered to appear in court on
that day. On the day set aside for his appearance, the appellant came before
the court via his attorney and asked for an additional month to file the
written statement. The deadline for submitting the written statement was
extended to May 13, 2004 by the court. The appellant once again submitted a
request for further time to file the written statement on 13.5.2004, citing the fact
that copies of numerous different documents needed to be secured before the statement could be filed. The
High Court was closed for the summer break from May 13th to July 7th, thus the
Court decided to postpone the hearing until July 7th, 2004. On June 22, 2004,
the advocate for the appellant's family lost a nephew. On the other hand, a
written statement was prepared and preserved in a condition of readiness for
submission. On the day that was scheduled, the advocate's registered clerk was given
the responsibility of submitting
the identical document in court. From Gazipur, where the appellant and his
lawyer called their home, the clerk made their way to Allahabad, which is the
location of the High Court. The affidavit of the appellant that was attached
to the written statement was sworn
in at Allahabad on July 1,
2004, which is two days before the day that the hearing was scheduled to take
place.
However,
(as is stated later on), due to a
lack of understanding on the part of the
registered clerk, the written statement was not
able to be filed on 3.7.2004. Instead, it was
filed on 8.7.2004 along with an application for condonation of delay in
filing the written statement, briefly stating the reasons set out hereinbefore.
This was done in conjunction with an application for condonation of delay in filing the written statement.
The application submitted by the appellant was rejected by the High Court on
23.8.2004, and the court refused to take the written statement into record for
the reason that it was submitted more than 90 days after the date of service of
the summons. This was the period of limitation
as provided by the Proviso to Rule 1 of Order VIII of the Code of Civil
Procedure, 1908 (hereinafter referred to as "the CPC," the short), which
was brought into effect by Act 22 of 2002 with effect
from 1.7.2002. The successful candidate, who is also the defendant and respondent in the
case before the High Court, has filed this appeal by special leave because they feel wronged by the
aforementioned ruling.
Judgement[14]
·
The provision of a time schedule for the submission of
the written statement in accordance with Order VIII, Rule 1 of the CPC is
intended to hasten the hearing rather than to scuttle
it. A limitation is placed on the defendant as a result
of this clause. It does not restrict the ability of the
Court to extend the allotted amount of time in any way.
Despite
the fact that the wording of the proviso to Rule 1 of Order VIII of the CPC is
written in the negative, the proviso does not indicate any punitive penalties
that would result from a lack of compliance. Due to the fact that the provision
is within the purview of the Procedural Law, it is required to be treated as
directory rather than obligatory. The discretion of the Court to extend the deadline
for submitting the written statement
beyond the time limit specified in Order VIII, Rule 1 of the CPC has not been eliminated entirely.
·
It is held that the time schedule contained in the provision is to be followed as a rule, and
any departure from it would be by way of exception, even though Order VIII,
Rule 1 of the CPC is a part of Procedural Law
and is therefore a directory. This is because the need
for expeditious trial of civil causes is what persuaded the Parliament to enact
the provision in its present form. It is not acceptable for the court to
approve the defendant's request for an extension
of time as a matter of routine or
just because they have asked for it; this is especially true after the first
term of 90 days has passed. An extension of time may be granted on the basis of
an exception for reasons that must be submitted by the defendant and also be
put on record in writing by the court, however briefly, upon its being
satisfied. These reasons must be assigned by the defendant. It is possible that
a request for a time extension will be granted if the court determines that the
request is warranted by exceptional circumstances that were brought about by
factors that were beyond the defendant's control and that a significant amount
of injustice would be brought about if the time limit was not extended.
Depending on the specifics of the case, the court may decide to levy costs on
the defendant and require them to provide an affidavit or supporting papers
in order to validate the reasons for why they have requested an extension of the deadline.
Conclusion[15]
It
is possible to draw the conclusion that the modification of pleadings cannot be
requested by a party as a matter of right, nor can it be refused by the Court
arbitrarily, in light of the proposals and decisions that have been made by the
higher courts as well as the Supreme Court. On the other hand, the discretion
that the Court is tasked with exercising is subject to the facts and
circumstances of each individual case,
and it is governed by the
principles that are outlined in the proviso to
Rule 17. As a result of the fact that O.VI R.17 is designed to assist in
furthering the goals of justice rather than undermining them, it is customary
to approve proposed adjustments and very rarely does it become necessary to
reject them.
In the interest of justice, it is essential that all of the issues
associated to a given litigation be resolved in a single suit in order to
prevent multiplicity. In addition, parties should have the freedom to amend their
pleadings while the suit
is still in progress. While doing so, the burden
of determining whether the change has any bearing on the proceedings at
hand and whether it will have any negative impact on the litigation will fall
on the courts. The Supreme Court of India, in the case of Anita v. Anil21,
has only just issued a notice in the Special Leave Petition (SLP) that
was filed against the Bombay High Court verdict that had followed the dicta of
Vidya Bai.
Despite this, the matter is still up to debate.
When we finally do get the legislation to reflect the true stance, it will only be a question
of time.
References
·
LexisGreen Civil Procedure: Law Books &
Bare Acts
·
Ray Sukumar, Textbook on the code of civil procedure
(2008).
·
Special Leave Petition (C) No. 13691/2021
·
Manupatra, MANUPATRA ARTICLES
·
Salem
Bar Association, T.N. v. Union of India,
MANU/SC/0450/2005.
·
Chander
Kanta Bansal v. Rajinder Singh Anand, MANU/SC/7310/2008.
·
Usha Balasaheb Swami v. Kiran Appasso Swami,
MANU/SC/7318/2007.
·
Inderjeet v. Agricultural Produce
Market Committee, MANU/DE/1432/2001
·
Saif-ul-Islam Company v. Roshan Lal Arora,
MANU/DE/2006/2002
·
P.M.
Salim v. Vasudevan
Namboothiri, MANU/KE/2304/2021
·
Ashok KM, TIME LIMIT FOR FILING
OF WRITTEN STATEMENT
UNDER ORDER VIII RULE 1 CPC IS NOT MANDATORY: SUPREME COURT LIVE LAW (2022),
[1] LexisGreen Civil Procedure: Law Books & Bare Acts
[5] Manupatra, Manupatra
Articles,
[12] Manupatra, Manupatra Articles,
[13] Kailash V
Nanhku and others on 06 April 2005 - judgement - lawyerservices,
[14] Ashok KM, TIME LIMIT FOR FILING OF WRITTEN STATEMENT UNDER ORDER VIII RULE 1 CPC IS NOT MANDATORY: SUPREME COURT LIVE LAW (2022),
Article Information
O6R17 (AMENDMENT OF PLEADINGS) CASE LAW: KAILASH V NANKU (2005)
Authors: DHANANJAY BHARDWAJ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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