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Report No. 89

Chapter 30

Limitation and the Amendment of Pleadings

I Position in India

30.1. Scope of the Chapter.- It is proposed in this Chapter to deal with the subject of amendment of pleadings in so far as it is relevant to the question of limitation.

30.2. Order 6, rule 17, C.P.C.- The most important provision on the subject is in the Code of Civil Procedure, Order 6, rule 17. That rule, being intended primarily to confer a general power on the court to allow amendment of the pleadings (in the interests of justice), naturally does not deal in detail with the ramification of the exercise of that power in the varieties of situations that occur in life. It does not, for that reason, deal with the question in what circumstances the power may be exercised.

Amendment by adding a party is primarily taken care of by a specific provision in the Limitation Act.1

1. Section 21, Limitation Act, 1963, Chapter 21, supra.

30.3. Privy Council cases.- The leading case in India on the subject of amendment of pleadings is a Privy Council one.1 The plaintiff's object in that suit was to exercise his right of pre-emption, but, while drafting the plaint the plaintiff (who had asked for declaration of pre-emption rights) forgot to include a prayer for possession of the property. Later, he sought to amend the plaint to include the prayer for possession. Allowing the amendment, and dealing with the aspect of limitation, the Privy Council observe.-

"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example, Mohummed Zahoor Ali Khan v. Mussumut Thakooranee Rutta Koer, (1867) 11 MIA 468 (PC), where such considerations are outweighed by the special circumstances of the case.

If this be so, all that happened was that the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit. But if once it be accepted that they were attempting to establish those rights, there is no sufficient reason shown for disturbing the judgment of the Judicial Commissioner, who thinks they should be at liberty to express their intention in a plainer and less ambiguous manner."

1. Charan Das v. Amir Khan, AIR 1921 Privy Council 50 (51, 52).

30.4. The earlier case1 cited by the Privy Council arose out of a suit to recover a stated sum due on a bond alleged to have been executed by Mussumat Thakooranee Rutta Koer. After the institution of the suit some more defendants were added on the allegation that they had combined with the obligor and had "colorably"2 procured her estate to be transferred to them in order to deprive the plaintiff of his remedy against the property. The main defence was that on the date of the execution of the bond in question, the property of Mussumat Thakooranee Rutta Koer was in charge of the Court of wards and hence the Thakooranee was not competent to incur any debt.

The Privy Council found that as the bond was a simple money bond to which the other defendants were not parties and as the bond did not purport to be a mortgage, no case was made out against the other defendants. But, as regards the obligor, i.e. Mussumat Thakooranee Rutta Koer, the Privy Council did not agree with the findings that she was incompetent to incur a debt. However, they were averse to pronouncing in favour of the appellant without an amendment of the pleadings and a full trial. The Privy Council observed as unde.-

"Though this Committee is always disposed to give a liberal construction to pleadings in the Indian courts, so as to allow every question fairly arising on the case made by the pleadings to be raised and discussed in the suit, yet this' liberality of construction must have some limit. A plaintiff cannot be entitled to relief upon facts or documents not stated or referred to by him in his pleadings. They have, however, felt some doubt as to the Order which it will be their duty to recommend Her Majesty to make on this appeal.

They have already intimated that the appeal must be dismissed against all the Respondents except Rutta Koer; and they have felt some doubt whether, inasmuch as the suit was wholly misconceived, the proper course was not to dismiss this appeal altogether, without prejudice to the rights of the appellant to bring a new suit against Rutta Koer upon this Bond, treating it as a mere money Bond.

Considering, however, that such a suit would probably be met by a plea of the Act of Limitation; that in the circumstances of this case such a defence would be inequitable; and that, the Respondent not having appeared, their Lordships are not in a condition to put her on terms as to her defence to a fresh suit; they have come to the conclusion that the fairer course is to do what the judge of the Court of First Instance might, under the Code of Procedure, have done at an earlier stage of the cour.-namely, allow the appellant to amend his plaint so as to make it a plaint against Rutta Koer alone for the recovery of money due on a Bond."

1. Mohammad Zahoor All Khan v. Mussumat Thakooranee Rutta Kerr, (1862) 11 MIA 8 (PC).

2. This looks like an American spelling but has been taken verbatim from the Report.

30.5. Power to advance the interest of justice.- Even in the later case1 the Privy Council cautioned that such power should not, as a rule, be exercised where its effect is to take away from a defendant a legal right which had accrued to him by lapse of time. These general observations have also been repeated by the Supreme Court.-

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

1. Charan Das v. Amir Khan, AIR 1921 PC 50.

2. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126.

30.6. Overbroad argument.- At the same time, an overbroad argument that no matter whether a right to property has been extinguished under statute, an amendment of the pleadings should be allowed, was rejected by the Supreme Court in the very case cited above. Nevertheless, it continues to be pressed now and then, with a gloss. So was it done in an Allahabad case1, in which the question was whether the execution application could be amended even after the expiry of the period of limitation. The application was filed by a person other than the decree holder and the amendment was disallowed.

1. Kishore Joo v. Guman Behari Joo Deo, AIR 1978 All 1.

30.7. On the other hand, in Madhya Pradesh case,1 reliance was placed on the observations of the Supreme Court2 in Leach & Co. Ltd. v. Jardine Skinner & Co., and an amendment was allowed at the second appellate stage, in a suit for partition and separate possession of property, to implead a person for the first time. The court observe.-

"Even assuming that the amendment might be barred by time, this would eminently be a case to allow time barred amendment."

1. Anandibai v. Sundarbai, AIR 1965 MP 85 (88).

2. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357.

30.8. In this case the Supreme Court had allowed the plaintiff to raise an alternative claim for damages for breach of contract for non-delivery of goods when ordinarily the suit was for damages for conversion of goods as an action in trover. The Court found that all the allegations which are necessary for sustaining a claim for damages for breach of contract were already in the plaint and all that was lacking was only the allegation that the plaintiffs were in the alternative entitled to claim damages.

30.9. In this context the Supreme Court referred to the leading case of Charan Das1 and observe.-

"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice."

Such verbal amendment has always been allowed by courts.2

1. Charan Das v. Amir Khan, AIR 1921 PC 50, supra.

2. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357 (362).

30.10. Amendment not to introduce new case.- Where the plaintiff in a suit for recovery of money which was instituted on the basis of a chit acknowledging receipt of money borrowed and also a promissory note executed on the same day, sought, to amend the plaint by introducing a relief on the basis of the promissory note alone, such an amendment which was based entirely on facts stated in the original plaint itself, could be permitted despite the fact that the suit would have been time barred had it been instituted on the date when the amendment was sought for.1

But when the plaintiff originally based his pre¬emptive claim on the basis of relationship, he was not allowed to plead co¬shareship as an additional ground when such an amendment based on new ground would have been time barred.2 A pre-emption suit filed on behalf of a major, showing him to be a minor, was not allowed to be amended in a Punjab case.3 The Supreme Court has in one case,4 touched on the question of limitation in a contract containing an escalation clause of labour rates.

The plaintiff had originally claimed only a declaration about the enhancement of the tendered rate. Subsequently, the plaintiff sought to amend the plaint by adding an extra relief for a decree for the contract money. The amendment was allowed, on the ground that the amendment sought to introduce a claim based on the same cause of action. However, the Supreme Court observe.-

"No amendment will be allowed to introduce a new set of ideas, to the prejudice of any right acquired by any party by lapse of time."

1. Govinda Chetti v. M.V. Chinnappa, AIR 1973 Mad 400.

2. Gurmukh Singh v. Dalip Singh, AIR 1971 P&H 419.

3. Suraj Bhan v. Balwant Singh, AIR 1972 P&H 276.

4. A.K. Gupta v. Damodar Valley Corp., AIR 1967 SC 96 (98).

30.10A. Summary of the position in India.- The dictum of the Supreme Court that the power can be appropriately exercised in the interests of justice, the law of limitation notwithstanding,1 shows that the power has been regarded as a wide one. All the same, one can discern from the judgments certain guiding lights that indicate the proper approach to be adopted in exercising the judicial discretion in the matter.

A review of the judicial pronouncements in India on the subject of amendment of pleadings brings to surface the following broad principles:

(1) The courts have a plenary power to permit amendment of pleadings at any stage of the proceedings. But the power can be exercised appropriately only in the interests of justice and the discretion should be exercised with due care and circumspection.

(2) When all the allegations which are necessarily for sustaining a claim already exist in the plaint, the court should exercise its discretion to allow a technical amendment, even though the claim would be barred by limitation on the date of the application.

(3) A suitor should not suffer on account of merely technicality or clumsily blundering.2

(4) A suitors-should not suffer because he failed to amend his plaint at any early stage of the proceedings.3

(5) When all the allegations which are necessary for sustaining a claim were already in the plaint and what was lacking is only a prayer for an alternative claim, the amendment should be allowed.4

(6) Amendment should be allowed if no prejudice is caused to any party and the amendment is based entirely on facts stated in the original plaint.5

(7) Except in special circumstances, an amendment should not be allowed to introduce a set of ideas to the prejudice of any right acquired by any party by lapse of time.

1. Gangabai v. Vijay Kumar, AIR 1974 SC 2216, supra.

2. Charan Das v. Amir Khan, AIR 1921 PC 50.

3. Mohnimud Zahoor Ali Khan v. Mussumat Thakooranee Rutta Koer, 1807 Moore's Indian Appeals 468.

4. Leach & Co. v. Jardine Skinner & Co., AIR 1957 SC 357.

5. A.K. Gupta v. Damodar Valley Corporation, AIR 1967 SC 96.

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