The amendment of pleadings has been dealt with under Order VI, Rule 17 of the Code of Civil Procedure, 1908. It reads –
The Court may at any stage of 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.
It is well settled that leave to amend will be granted so as to enable the real question in issue between the parties to be raised on the pleadings where the amendment will occasion no injury to the opposite party, except that which can sufficiently be compensated for by way of awarding of costs. Thus the basic purpose and consideration for the grant of leave to amend the pleadings are as follows:-
1. To enable the real question in issue between the parties to be raised.
2. It does not cause any injury to the opposite party.
3. Even if it causes some injury to the other party, the same is compensable in terms of money by way of infliction of the cost.
In the words of Justice Bramwell – “My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that , by his blunder , he had done some injury to his opponent which could not be compensated for by costs or otherwise.”
The power given to the courts is entirely discretionary. The discretion has to be used judicially on a consideration of the special circumstances of each case.
The dictum of Lord Justice Bowen in Cropper v. Smith (1984) may be quoted :
“It is well established principle that the object of the court is to decide the right of the parties and not to punish them for the mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…. I know of no kind of error or mistake which is not fraudulent or intended to overreach, the court ought not to correct it if it can be done without injustice to the other party. Courts do not exist for the sake of discipline , but for the sake of deciding matters in controversy.”
The scope of the power to grant the amendment of pleadings under The Code of Civil Procedure particularly in contrast with Order VI Rule 17 has been dealt within Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267. The Supreme Court in this case granted the amendment to the plaint for the purpose of rectification of the misdescription of the name of the party.
In Prem Bakshi Vs. Dharam Dev, AIR 2002 SC 559 , it has been held that order allowing proposed amendment does not even remotely cause failure of justice or irreparable injury to any party as respondent would get opportunity to file written statement and he would be liable to raise all his defence and he would also have a chance to take up points decided against him before appellate court.
In Canara Bank Vs. Standard Chartered Bank , AIR 2002 SC 132, it has been held that when appellant did not file any application for amendment of the written statement before the special court , then amendment can not be allowed at stage of appeal before Supreme Court.