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Amending suit prayer & filing of stay petition after IA was dismissed
08-Apr-2023 (In Civil Law)
In a Civil Suit, I have prayed for permanent injunction against cancellation of my membership in a Society and also filed an IA for interim injunction till the disposal of the Suit. The Suit and the IA were filed on 06 April 2015 and the Summons were served on the Defendants on 10 April 2015. The Defence contended that the membership was already cancelled on 8 April 2015 before Summons were received and hence the Injunction Suit and the Interim Injunction IA have become infructuous. IA has been dismissed. Suit Stage 'Framing of Issues'. Queries: 1. Can I amend the Suit Prayer at framing of issues stage to an Order to set aside the cancellation instead of permanent injunction? If so, under which Rule and what are the most relevant citations / case laws that can be quoted? Query 2: Now that the injunction IA has been dismissed, can I file a Stay Petition asking for stay of the membership cancellation order by the Society? Thanks a lot.
Amendment of pleadings is basically for the purpose of bringing about final adjudication in a suit and to avoid multiplicity of proceedings. It is in the interest of justice that a suit shall be decided on all points of controversy and accordingly, it is needed that the party shall be allowed to alter or amend their pleadings during the pendency of the suit. There can be a situation where there is change of circumstances in the course of pendency of a proceeding and if a matter in issue arises upon such change of circumstance, then amendment becomes necessary. Amendment of pleadings is provided under Order VI Rule 17 of the Code of Civil Procedure, 1908, which reads as under:
According to Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court may allow the amendment at any stage of the proceedings and for such purpose it may impose conditions i.e. in the form of cost or any other condition. The Court has been given discretion in this regard and the mandatory guidelines upon the Court as well as upon the party seeking amendment is that they shall make only such amendments which are necessary for determination of real controversy between the parties to the suit. At the same time, the Proviso to Order VI Rule 17 puts a mandate upon the Court not to allow such amendment after the trail has begun (i.e. if issues have been settled), if its finds that the party could have raised the pleadings by due diligence at an earlier point of time.
However, the Proviso need not be given a very rigid effect in all cases as the same is subject to the discretion of the Court. The main object of the legislation is to enable the Court to allow amendment at any stage. The purpose of the Proviso cannot do away with the intent of the legislation. Thus, if an application for amendment of pleadings has been filed after trial has begun, the Court will normally be tilted against the applicant, if it could be raised by due diligence at any earlier stage of proceedings. But in proper cases if the point to be amended is very essential to the suit, the Court may, in the interest of justice and equity, allow the amendment on such conditions as the Court deems fit and proper in the facts and circumstances of the particular case.
It was held by the Hon'ble Supreme Court in Salem Advocate Case, that by the 2002 Amendment, which added the Proviso to Order VI Rule 17, the burden of proof has been shifted upon the applicant who makes the application for amendment after the trail has commenced, to prove that despite due diligence he could not have raised the issue before the commencement of trail. This is for the purpose of preventing frivolous application to delay the proceedings.
Guidelines for Amendment of Pleadings
Cause of action in a suit cannot be altered by amendment of pleadings. The cause of action will not be allowed to be substituted in totality and the reason being that the cause of action is the very basis of a suit. If a new/distinct cause of action is there, the parties are always free to go to the Court with such cause of action in an independent suit. But there can be cases where the cause of action has got further aggravated by any further violation or some continuing cause of action which can be joined in the present suit due to subsequent change of circumstances. In such cases, the Court in its discretion is free to allow the amendment as that would not be a case of substitution of cause of action.
The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue before the Court. The matter in issue is essential for the determination of the suit and therefore amendment can be made. Similarly, relief also can be amended. In such cases, if the amendment is not allowed, the bar of res judicata or as the case may be, the bar of Order II Rule 2 of the Code of Civil Procedure, 1908 may apply. Therefore, the Court should try to bring a balance between the injustice that might be caused to the applicant in case of refusal to grant relief and at the same time, in case of allowing the application, the requirement of injustice caused to the other party in the present suit.
If a right has already accrued in pleadings to the opposite party, then the Court shall normally be reluctant to allow the Amendment of pleadings. However, in such cases, if the loss that will be caused to the other party can be adequately compensated for by cost then amendment shall be allowed.
When the court hears the application for Amendment of pleadings it does not go into the merits of the case. While considering the prayer for amendment of the pleadings, the Court cannot go into the issue of merits vis-Ã -vis maintainability of the suit, but can consider only whether the amendment is necessary to determine the real controversy between the parties.
If there is an undue delay in the filing of the application for amendment, without there being sufficient cause shown to condone the delay, then the Court may normally not allow the amendment.
Change of law: The law can be a change of substantive law either prospective or retrospective. If it is a prospective change then it normally not effect cause of action and matter in issue in the pending suit and therefore, amendment is not needed. Whereas it is a retrospective change, amendment might be needed and shall be allowed. If it is a change of procedural law then normally pleadings will not be allowed to be amended but the court shall itself take note of the change of procedural law.
Further, Order VI rule 18 of the Code of Civil Procedure, 1908 casts a duty on the party to carry out the amendment, if allowed by the Court, within the time limited for the said purpose by the order and if no time is thereby stated, then within 14 days from the date of the order. In case the party fails to carry out amendment within the said period, he shall not be permitted to carry out the amendment after the expiration of time limited, unless the time is further extended by the Court.
In view of the aforesaid, it can be concluded that the amendment of pleadings cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily. However, the discretion to be exercised by the Court is guided by the principles mentioned hereinabove and depends on the facts and circumstances of each case. Thus, rational behind the provision of Order VI Rule 17 of the Code of Civil Procedure, 1908 can be summarized as "Court shall allow application of amendment if granting of an amendment really subserves ultimate cause of justice and avoids further litigation".
According to Order VI Rule 17 of the Code of Civil Procedure, 1908, the Court may allow the amendment at any stage of the proceedings and for such purpose it may impose conditions i.e. in the form of cost or any other condition. The Court has been given discretion in this regard and the mandatory guidelines upon the Court as well as upon the party seeking amendment is that they shall make only such amendments which are necessary for determination of real controversy between the parties to the suit. At the same time, the Proviso to Order VI Rule 17 puts a mandate upon the Court not to allow such amendment after the trail has begun (i.e. if issues have been settled), if its finds that the party could have raised the pleadings by due diligence at an earlier point of time.
However, the Proviso need not be given a very rigid effect in all cases as the same is subject to the discretion of the Court. The main object of the legislation is to enable the Court to allow amendment at any stage. The purpose of the Proviso cannot do away with the intent of the legislation. Thus, if an application for amendment of pleadings has been filed after trial has begun, the Court will normally be tilted against the applicant, if it could be raised by due diligence at any earlier stage of proceedings. But in proper cases if the point to be amended is very essential to the suit, the Court may, in the interest of justice and equity, allow the amendment on such conditions as the Court deems fit and proper in the facts and circumstances of the particular case.
It was held by the Hon'ble Supreme Court in Salem Advocate Case, that by the 2002 Amendment, which added the Proviso to Order VI Rule 17, the burden of proof has been shifted upon the applicant who makes the application for amendment after the trail has commenced, to prove that despite due diligence he could not have raised the issue before the commencement of trail. This is for the purpose of preventing frivolous application to delay the proceedings.
Guidelines for Amendment of Pleadings
Cause of action in a suit cannot be altered by amendment of pleadings. The cause of action will not be allowed to be substituted in totality and the reason being that the cause of action is the very basis of a suit. If a new/distinct cause of action is there, the parties are always free to go to the Court with such cause of action in an independent suit. But there can be cases where the cause of action has got further aggravated by any further violation or some continuing cause of action which can be joined in the present suit due to subsequent change of circumstances. In such cases, the Court in its discretion is free to allow the amendment as that would not be a case of substitution of cause of action.
The Amendment of pleadings shall be allowed to bring or to clarify all matter in issue before the Court. The matter in issue is essential for the determination of the suit and therefore amendment can be made. Similarly, relief also can be amended. In such cases, if the amendment is not allowed, the bar of res judicata or as the case may be, the bar of Order II Rule 2 of the Code of Civil Procedure, 1908 may apply. Therefore, the Court should try to bring a balance between the injustice that might be caused to the applicant in case of refusal to grant relief and at the same time, in case of allowing the application, the requirement of injustice caused to the other party in the present suit.
If a right has already accrued in pleadings to the opposite party, then the Court shall normally be reluctant to allow the Amendment of pleadings. However, in such cases, if the loss that will be caused to the other party can be adequately compensated for by cost then amendment shall be allowed.
When the court hears the application for Amendment of pleadings it does not go into the merits of the case. While considering the prayer for amendment of the pleadings, the Court cannot go into the issue of merits vis-Ã -vis maintainability of the suit, but can consider only whether the amendment is necessary to determine the real controversy between the parties.
If there is an undue delay in the filing of the application for amendment, without there being sufficient cause shown to condone the delay, then the Court may normally not allow the amendment.
Change of law: The law can be a change of substantive law either prospective or retrospective. If it is a prospective change then it normally not effect cause of action and matter in issue in the pending suit and therefore, amendment is not needed. Whereas it is a retrospective change, amendment might be needed and shall be allowed. If it is a change of procedural law then normally pleadings will not be allowed to be amended but the court shall itself take note of the change of procedural law.
Further, Order VI rule 18 of the Code of Civil Procedure, 1908 casts a duty on the party to carry out the amendment, if allowed by the Court, within the time limited for the said purpose by the order and if no time is thereby stated, then within 14 days from the date of the order. In case the party fails to carry out amendment within the said period, he shall not be permitted to carry out the amendment after the expiration of time limited, unless the time is further extended by the Court.
In view of the aforesaid, it can be concluded that the amendment of pleadings cannot be claimed by the party as a matter of right nor can be denied by the Court arbitrarily. However, the discretion to be exercised by the Court is guided by the principles mentioned hereinabove and depends on the facts and circumstances of each case. Thus, rational behind the provision of Order VI Rule 17 of the Code of Civil Procedure, 1908 can be summarized as "Court shall allow application of amendment if granting of an amendment really subserves ultimate cause of justice and avoids further litigation".
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Adv. Siddhant Sharma
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