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Report No. 163

2.14. Clause 16 of the Amendment Bill proposing to amend certain rules in Order VI.-

(i) Sub-clause (i) of clause 16 of the Amendment Bill proposes to omit rule 5 of Order VI. The said rule enables the court to direct the parties to furnish better statement of the nature of the claim or defence, or further and better particulars of any matter stated in any pleading.

This rule is perhaps sought to be omitted on the ground that it is unnecessary in view of the provisions for serving the interrogatories and the provisions relating to discovery and inspection. (Note on this clause indicates that the omission is being effected consistent with other changes proposed in the Code). Though there was some opposition to this deletion from among some of the participants, the Law Commission is of the opinion that existing rule 5 can be safely omitted.

(ii) The proposed insertion of sub-rule (4) after sub-rule (3) in rule 15 providing that the person verifying the pleading shall also furnish an affidavit in support of his pleadings has already been discussed by the Law Commission under paragraph 2.6., supra.

(iii) The proposal to delete rule 17 (and the consequential provision in rule 13) of Order VI has been opposed uniformly by all the participants, whether members of the Bar or of the Bench. All the participants pleaded for retaining rule 17 but there were two different strands of opinion in this regard. According to one view, the present rule should be left untouched. It was pointed out that in appropriate cases, the Supreme Court had granted the amendment of pleadings at the stage of appeal to the Supreme Court.

It was also observed that any number of situations may arise including the subsequent changes in law and the subsequent discovery of new and relevant facts, which may call for amendment of the pleadings. In such a situation, it was suggested, the power of the court to grant amendment on appropriate terms should not be interfered with in any manner. According to the other strand of opinion, this power of amendment should be restricted. Members of the Bench, in particular, suggested that no application for amendment should be entertained once the trial of the suit had begun.

In other words, all the amendments should be effected before the trial opened. Once the trial had commenced, no amendment should be granted except where such an amendment was called for by a subsequent change in law or the happening of a subsequent event necessitating such amendment. According to this view, the provision for amendment of pleadings was being misused by parties with a view to delay the trial and to harass the other side.

It was submitted that very often application for amendment was filed on the date when the suit was posted for trial only with a view to stopping commencement of the trial because the party was not ready or it was not convenient for it to go on with the trial on that occasion. It was suggested that such attempts and tactics should be discouraged and it was for this reason that the suggestion had been made that no amendment should be allowed to be applied for once the trial opened and that no such application should be entertained on the date on which the trial was to commence.

The Law Commission is of the opinion that this power of amendment of pleadings should not be taken away. At the same time, however, it is necessary to ensure that this provision is not abused and is not used as a means of delaying the commencement or progress of the trial. The Law Commission, accordingly, agrees with the second strand of thought aforementioned.

In other words, the Rule should state that no amendment of pleadings shall be granted and no such application for amendment should be entertained, on the date the trial is to commence except where the Court feels that the amendment is necessitated by a change in law effected subsequent to the Framing of the issues or on account of any fact coming to the knowledge of the applicant after framing of the issues which he could not have discovered, with due diligence before the framing of the issues.

Once the trial commences, no amendments should be allowed except where it is found necessary on account of the subsequent events whether legal or factual as mentioned above. Rule 18 being consequential in nature, does not call for any separate comment.



The Code of Civil Procedure (Amendment) Bill, 1997 Back




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