What the Calcutta HC held on Amendment of Pleadings in Civil Suits [Read Order]

The Calcutta High Court recently made pertinent observations regarding the scope of the courts’ powers in allowing the amendment of pleadings in civil suits..The order passed by the Court also emphasises that amendment of pleadings would only be allowed if the party seeking the same is found to have acted diligently in making the plea without unnecessary delay..Justice Shekhar B Saraf observed that after a 2002 amendment to the Code of Civil Procedure (CPC), 1908, courts no longer hold an unfettered discretion to allow the amendment of pleadings at any stage. As noted in his order,.“…it [the amendment] restricts the scope of the Court to allow amendments to pleadings after the trial has commenced. It requires the party seeking an amendment, after trial has begun, to show that the party could not have raised this point before the trial commenced despite exercising due diligence. It is undoubtedly true that the Court is liberal while allowing applications for amendment of pleadings, however, the Court’s power is now fettered by the proviso.”.The law in this regard is laid down in Order VI, Rule 17 of the CPC. The provision reads as under,.“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 made 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 proviso was inserted into the rule by the 2002 amendment. The High Court interpreted this proviso to mean that if the party seeking amendment is found to have exercised diligence in raising a plea at the earliest possible time, she may be allowed to alter her pleadings..While this was the case, the Court also found that the defendants/applicants before it were not diligent in making their plea for amending the written statement on time..The written statement sought to be amended was filed originally in June 2014 in a suit initiated in 2013. The amendment application was filed only in June 2018. This was filed at a stage when the framing of issues and the discovery and inspection of documents was complete. Moreover, the chief examination of witnesses had also begun. The Court concluded that this meant that the trial in the suit had already commenced for the purpose of Order VI, Rule 17 of the CPC..Importantly, the amendment application was founded on certain information that had come to light months earlier in December 2017. No justification was given for the seven-month delay in moving the application. As noted in the order,.“From their own admission, the applicants/defendants have submitted that they came to know of certain new developments in December, 2017. However, it is noted that the present application for amendment has been made in the month of July, 2018, seven months subsequent to them having obtained the information. There is not even a whisper as regards to why the defendants were precluded from making an application within these seven months….…The applicants/defendants were, thus, required to show that they could not have raised this amendment before trial had commenced despite exercising ‘due diligence’, which they have failed to do either in the application for amendment or in the course of arguments.“.The Court, therefore, dismissed the application, observing,.“Even though the Court is to follow a liberal approach in allowing amendment of pleadings, I do not think that it can turn a blind eye to the proviso in the course of doing so.”. Read the order: