OPINION: Order VI Rule 17: Embargo on entering into the arena of merits
Order VI, Rule 17 of the Code of Civil Procedure (‘CPC’) deals with amendment of pleadings. It is one of the most important provisions in CPC, as pleadings are of crucial importance in the province of civil law; and a categorical bar against prohibition of pleadings would invariably result in miscarriage of justice.
However, considering the amount of time take that it takes for a civil suit to get decided, it is not desirable to allow amendment of pleadings in a routine and casual manner. After all, it would be a travesty if, say, a defendant can prolong the trial by seeking frivolous amendments of his written statement. The proviso to the said Rule recognizes that, and lays down that no application for amendment shall be allowed after the commencement of the trial, unless the court is satisfied that in spite of exercising due diligence, the party seeking the amendment could not have raised it before the commencement of the trial . Naturally, the provision has been the subject matter of various judicial pronouncements. A holistic survey of the jurisprudence on this issue reveals that the primary conditions required for allowing an amendment are a) It should be necessary for the purpose of determining the real questions in controversy between the parties, and b) It should not cause any injustice to the other party.
It is apposite to note that the apex court has categorically held that while deciding an application under Order VI, Rule 17, it is not permissible for the trial court to dwell upon the merits of the amendment being sought. In other words, the rule of law which has been laid down is that while deciding whether the amendment being sought should be allowed or not, the court would not embark upon the inquiry of ascertaining the truthfulness, or otherwise, of the amendment. To hold otherwise would be to turn proceedings under the provision into a mini-trial, apart from the fact that it would be practically impossible for the applicant to establish the veracity of the amendment being sought, as doing so often entails leading of evidence. Thus, the consistent strand in various judgments on this provision has been that there is a bar on the trial court entering into the merits of the amendment.
It is in this backdrop, that one finds a recent judgment of the Delhi High Court, in the case titled M/s Vysya Leasing & Finance Ltd. v/s M/s Amrit Lal Bajaj & Co, being CS (Comm.) no. 421/2016, fairly perplexing. It is not imperative to set out the facts of the case in detail. It would suffice to state that during the pendency of the suit, the original defendant passed away, and his legal representatives (‘LRs’) were brought on record. The said LRs sought an amendment of the written statement, on several grounds. The High Court opined that the amendment sought was not warranted, by assigning several reasons, which are not germane for the purpose of this piece. However, while doing so, the High Court also held that while courts usually do not dwell upon the merits of a proposed amendment, at times courts can do so. In support of the said view, it was added that there is no categorical rule of law that courts cannot dwell upon the merits. The relevant portion of the judgment is reproduced hereinbelow:
“Though, courts do not ordinarily go into merits of the issues while deciding an application under Order 6 Rule 17 CPC, however this is not a categorical rule because in certain cases in order to decide whether the application for amendment is bonafide or malafide and therefore whether it should be allowed or not , courts do go into the merit of the amendment which is sought, more so when the amendment sought if allowed would have the effect of the suit of the year 1997, i.e. 20 years old, to be put back in clock by around 20 years, and that too for a plea which was not taken up by the original defendant no. 2 Sh. Rajesh Bajaj.”
A careful reading of the aforementioned passage reveals that as per the High Court, the trial court can enter into the arena of merits (of the proposed amendment), when a) It has to decide whether the application is bonafide or malafide, and b) the effect of allowing the amendment would be undesirable. Intriguingly, the High Court did not cite even a single authority for the primary proposition, i.e., the court can enter into the merits of the amendment; let alone for the proposition in regard to the scenarios wherein it could do so.
It is respectfully submitted that this view runs contrary to the well settled principle of law that there is an embargo on the court to enter into the merits of the proposed amendment, while deciding an application under Rule XVII of Order VI. The underlying rationale being that it would be extremely unfair to prejudge an issue, without subjecting it to the quintessential rigours of a civil trial, which would entail framing an issue thereon in terms of Rule 1 of Order 14, wherein the party proposing the amendment would get an adequate opportunity to adduce evidence in support thereof. It would be a travesty if the court is allowed to record a finding on the merits of the amendment, when the party seeking the amendment has not been afforded an opportunity to prove his averments in accordance with law.
The aforementioned principle is embellished by the following judgment of the apex court:
In Rajesh Kumar Aggarwal v/s K.K. Modi [2006 (4) SCC 385], the apex court held, in para 19:
“19. While considering whether an application for amendment should not be allowed, the Court should not go into the correctness or the falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment.”
A similar view was reiterated in the case of Sampath Kumar v/s Ayyakannu [2002 (7) SCC 559].
Thus, it is clear that the S.C. has restricted the powers of the civil court while deciding an application under Order VI, Rule 17. However, the apex court has also laid down that while deciding an application for amendment, the court ought to consider whether the application itself is bonafide or malafide. In the case of Jai Jai Ram Manohar Lal v/s National Building Material Supply [1969 (1) SCC 869], Gurgaon, the Supreme Court held:
“5. …..The Court always gives leave to amend the pleadings of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.” This proposition was reiterated in the case of Revajeetu Builders and Developers v/s Narayanaswamy and Sons [ 2009 (10) SCC 84].
While, at first brush, it might appear that the aforementioned judgments of the SC would lend support to the judgment of the High Court, a closer scrutiny would reveal otherwise. The proposition laid down by the apex court in the aforementioned cases is that the application for amendment could be dismissed if it appears that the party, seeking the amendment, is acting in a mala fide manner. It is imperative to note that the emphasis is on the conduct of the party, which has no nexus with the merits of the amendment. While the HC has arrived at the conclusion that in order to ascertain whether a party is acting bonafide or malafide, it could be necessary to go into the merits of the amendment, the judgments of the S.C. do not furnish that principle. Had the apex court so intended, it could have clearly opined it in so many words. As an illustration, it could be argued that the scenario alluded to by the SC would be, say, a party moving an application for amendment when the evidence has been completed and the matter has been kept for final arguments. Naturally, in such a scenario, if a party moves an application, it would have to be seen whether the underlying motive is to delay the trial. Thus, the true import of the apex court’s judgments would be that the conduct of the party moving the application may be scrutinized, but that should not be conflated with entering into the merits of the proposed amendment. It is reasonable to infer that the terms ‘bonafide’ and ‘malafide’ have been employed, by the apex court, in relation to the party moving the application. By no stretch of imagination can it be contended that the term ‘bonafide, in this context, should be construed as factually true averments.
Thus, it can be clearly seen that it is impermissible for the court, while entertaining an application under Order 6 Rule 17, to scrutinise the averments on the anvil of truthfulness/falsity. To that extent, the judgment of the Hon’ble Delhi High Court does not state the correct position in law.
Avin Chhangani is an Advocate practising at Rajasthan High Court, Jodhpur. Views expressed are personal of the author. The Indian Jurist does not take responsibility for the views expressed or facts stated.