How to draft an application of amendment of pleading?

Law relating to Amendment of Pleadings

Order 6 Rule 17 of Code of Civil Procedure provides for amendment of pleadings. It reads as under:

“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.”

The object of the Rule is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

Rule 17 of Order 6 confers wide discretion on a court to allow either party to alter or amend his pleading at any stage of proceedings on such terms as it deems fit. Such discretion, however, must be exercised judicially and in consonance with well-established principles of law. The provision as inserted by the Amendment Act, 2002, however, puts further restrictions on the power of the court in allowing amendment. Over and above civil suits, the provisions of Rule 17 apply to several other proceedings such as execution proceedings, insolvency proceedings, arbitration proceedings, election matters, proceedings under the Land Acquisition Act, claim petitions etc.. Even where the provision of the Code are not applicable, courts and tribunals are competent to devise their own procedure consistent with and based on the general principles of justice, equity and good conscience. Supporting affidavit is required along with the amendment application.

Guidelines for amendment in pleadings

(I) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.

(II) In general, the amendments should not cause prejudice to the other side which cannot be compensated in terms of costs.

(III) The substitution of one cause of action or nature of the claim for another in the original plaint or change of the subject-matter of or controversy in the suit is not permissible.

(IV) Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts or mutually destructive allegations of facts are also impermissible.

(V) Amendment of claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstances of the case.

(VI) The principles applicable to the amendment of plaints equally apply to the amendment of the written statement.

Draft 1

IN THE COURT OF…………………………………….

Suit No……..

In Re:

Shri/Smt………………..                                                                                           Plaintiff

Versus

Shri/Smt………………..                                                                                    Defendant

APPLICATION UNDER ORDER 6, RULE 17 READ WITH SECTION 151, CODE OF CIVIL PROCEDURE FOR AMENDMENT OF PLAINT

Sir,

It is respectfully submitted as under:

1. That the above noted suit is pending disposal before this court where in the next date of hearing is………….

2. That plaintiff has filed the instant suit for permanent injunction seeking the relief of restraining the defendant from dispossessing the Plaintiff from the tenanted premises as the plaintiff is tenant in the tenanted premises under the defendant.

3. That after gaining knowledge of the suit, the defendant has forcibly dispossessed the Plaintiff from the tenanted premises without due process of law and disregarding the suit filed by plaintiff against the defendant.

4. That as defendant has been able to execute his illegal design of dispossessing the plaintiff form the tenanted premises, the plaint in the suit requires amendment because of the subsequent events of dispossessing the plaintiff form the tenanted premises.

5. That under the circumstances, the plaintiff wants to amend the suit to the following effect:

(i) Title of the suit may be allowed to be changed from suit of permanent injunction to suit for possession.

(ii) Para 6 may be allowed to be substituted by the following para:

The defendant has executed his illegal design of dispossessing the plaintiff form the tenanted premises on ……….disregarding all provisions of law and it is therefore in the interest of justice that this court may be pleased to direct the defendant to hand over the possession of the premises to the plaintiff.

(iii) Para 10 may be allowed to amended as under:

That the value of the suit for the purpose of court fees and jurisdiction has been fixed at Rs……….on which a court fee of Rs……………….has been affixed.

(iv) That prayer may also be allowed to be substituted to the following effect:

That a decree for possession may be passed in favour of the plaintiff and against the defendant in respect of the tenanted premises more specifically marked red in the site plan filed along with the plaint.

6. That the amendment is necessary for deciding the real question in controversy between the parties and has become necessary because of the subsequent events as well.

7. That the amendment will also avoid multiplicity of suits between the parties and more so when the defendant has executed his illegal design of dispossessing the plaintiff from the tenanted premises during the pendency of the instant suit.

It is , therefore, prayed that the plaintiff may be allowed to amend the plaint as above in the interest of justice.

Plaintiff

Through

Counsel

Place:-

Date:-

IN THE COURT OF…………………………………….

Suit No……..

In Re:

Shri/Smt………………..                                                                                    Plaintiff

Versus

Shri/Smt………………..                                                                                     Defendant

APPLICATION UNDER ORDER 6, RULE 17 READ WITH SECTION 151, CODE OF CIVIL PROCEDURE FOR AMENDMENT OF PLAINT

AFFIDAVIT

I, …………… S/o Sh. S/o ………………, R/o ……………………., Sub Tehsil ……….., Distt. …………… do hereby solemnly affirm and declare as under:-

1. That my counsel under my instructions has drafted the accompanying application and the contents of the same have been read over and explained to me in Hindi which I have understood, the contents of aforesaid application are true and correct to my knowledge, on the bases of information received and believed to be correct and nothing has been concealed therein intentionally.

2. That the contents of accompanying application may kindly be read as part and parcel of this affidavit, as the same are not repeated here for sake of brevity.

                                                        Deponent.

Verification:-

Verified that the contents of my above affidavit are true and correct to the best of my knowledge and belief, nothing has been concealed therein.

Verified at ……….. on this day of _ _ May, ……………….   

Deponent. 

Draft 2

IN THE COURT OF SENIOR SUB-JUDGE………………………………….

Suit No. …….of 2…………….

Sh………………                                                                                           Plaintiff

versus

Sh…………………..                                                                                           Defendant

APPLICATION UNDER ORDER 6 RULE 17 , CODE OF CIVIL PROCEDURE , 1908 FOR AMENDMENT OF PLAINT

Sir,

The Plaintiff respectfully submits as under:

1. That the Plaintiff is owner of the house in suit.

2. That the Plaintiff has brought this suit for possession of the said house on an allegation of the Defendant’s tenancy.

3. That the Defendant has denied his tenancy.

4. That in the event of the issue of tenancy being decided against the Plaintiff the suit is liable to be dismissed and the Plaintiff will have to bring another suit on the ground of his title.

5. That under the circumstances, the Plaintiff want to amend the plaint so as to make an alternative claim on the basis of this title as owner of the house.

6. That the amendment is necessary for deciding the real question in controversy between the parties and has become necessary because of the subsequent events as well.

7. That the amendment will also avoid multiplicity of suits between the parties.

8. That the Plaintiff is prepared to pay the necessary additional court fee.

9. That the exact amendments which will be made in the Plain after leave is granted are set out in the annexure to this application.

PRAYER

It is , therefore prayed that the Plaintiff may be allowed to amend the plaint in the interest of justice.

Plaintiff

Through

Sd/-(Advocate)

Place:

Date:

IN THE COURT OF SENIOR SUB-JUDGE………………………………….

Suit No. …….of 2…………….

Sh………………                                                                                           Plaintiff

versus

Sh…………………..                                                                                           Defendant

APPLICATION UNDER ORDER 6 RULE 17 , CODE OF CIVIL PROCEDURE , 1908 FOR AMENDMENT OF PLAINT

AFFIDAVIT

I, …………… S/o Sh. S/o ………………, R/o ……………………., Sub Tehsil ……….., Distt. …………… do hereby solemnly affirm and declare as under:-

1. That my counsel under my instructions has drafted the accompanying application and the contents of the same have been read over and explained to me in Hindi which I have understood, the contents of aforesaid application are true and correct to my knowledge, on the bases of information received and believed to be correct and nothing has been concealed therein intentionally.

2. That the contents of accompanying application may kindly be read as part and parcel of this affidavit, as the same are not repeated here for sake of brevity.

                                                        Deponent.

Verification:-

Verified that the contents of my above affidavit are true and correct to the best of my knowledge and belief, nothing has been concealed therein.

Verified at ……….. on this day of _ _ May, ……………….   

Deponent.

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