DALIP KAUR V. MAJOR SINGH AIR 1996 P & H 107 (R.P. SETHI, J.)
FACTS
The appellant filed a suit for possession of land and for a permanent injunction restraining the defendants from alienating the land by way of sale, exchange, gift, etc.
Thereafter, the appellant sought leave to amend the pleading praying for declaration that the judgment and decree in another suit was null and void and ineffective against the rights of the appellant.
The court dismissed the application for amendment mainly on two grounds: (1) the inordinate delay in filing the amendment application was not explained, (2) the amendment was likely capable of changing the foundation of the suit by introducing a distinct cause of action.
Hence this appeal.
ISSUE
Whether the amendment application is liable to be dismissed?
HELD
The impugned order was set aside and the appellant was permitted to amend the plaint subject to payment of ₹1,000 as costs.
The purpose and object of Order 6 Rule 17 is to allow either party to alter or amend their pleadings in a just manner and terms. The object was to decide the rights of the parties and not to punish them for their mistakes.
The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The exercise of such farreaching discretionary power is governed by judicial considerations and wider the discretion, greater has to be the care and circumspection on the part of the Court.
Amendment cannot be claimed as a matter of right and under all circumstances since the circumstances may differ from case to case. If the result of the application is only to force a party to start a fresh litigation then such an approach must be discouraged.
The amendment did not defeat any legal right allegedly having accrued to the opposite party since the respondent was okay with the appellant filing another suit for challenging the said judgment and decree. The delay in filing the petition for amendment could also properly be compensated by costs.
Following principles should be kept in mind in dealing with the applications for amendment of the pleadings. Though they are general and not exhaustive:
(i) All amendments should be allowed which are necessary for determination of the real controversies in the suit;
(ii) the proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original lis (dispute) was raised;
(iii) inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment.
(iv) proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;
(v) amendment of a claim or relief barred by time should not be allowed;
(vi) no amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
(vii) no party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
(viii) the delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
(ix) error or mistake which if not fraudulent should not be made ground for rejecting the application for amendments of pleadings.