Pleadings [CPC 04]

A civil suit must be instituted with a pleadings and the main area of conflict shall be determined via pleadings. Moreover, the parties must limit their claims and submit their documents that are mentioned in pleadings. Therefore, Pleadings must be dealt with care, pleadings are the seed of a civil suit which will grow and bring the fruit with the help of justice.

Pleadings

The party who institute a civil suit present his claim by a written document known as a “plaint” and the party is called plaintiff, on the other hand, the other/s party submit reply via another written document to accept or [mostly] deny the claims of the plaintiff which is known as  “written statement” and that party is known as a “defendant” so it can be said that both of the party parties plead on their point to establish or defend the claim. Both these, plaint and written statement are called Pleadings, it is a common name for both of these terms

A pleadings is a very important part of civil procedure. It contains the necessary elements that are required to initiate and run a civil trial.

General rules of pleadings are mentioned under Order 6 & Rule 1of the Code of Civil Procedure, 1908. It must be pointed that more specific rules are given for both plaint and written statement under order 7 and 8 accordingly.

 

Elements of pleadings

  • Both plaint and written statement are pleadings [Order VI, Rule 1]
  • Every pleadings shall contain the statement of material fact which is necessary for the claim or defence it should not include evidence. [Order VI, Rule 2]
  • The date, sums and numbers shall be expressed in figures. [Order VI, Rule 2]
  • No pleadings shall raise any new ground or claim or any fact that is inconsistent with the previous pleadings except by the way of amendment of pleadings. [Order VI, Rule 7]
  • Every pleadings shall be signed by the party and his pleader if a party fails to do so due to absence or any other good reason,  it might be signed by a duly authorised person by that party. [Order VI, Rule 14]
  • Every pleading shall contain a verification at the end part of the pleadings by the party or some other person who is acquainted with the fact of the case. [Order VI, Rule 15]
Pleadings & Amendment of pleadings

Pleadings & Amendment of pleadings

Amendment of pleadings

A pleadings could go wrong for various reason, at that situation a pleadings requires an amendment to serve its purpose. The term amendment of pleadings is very self-explanatory, In certain situation, a pleadings may need an amendment to serve its purpose.  This amendment is called the amendment of pleadings.

The concerned party can apply for an amendment of pleadings to the court to add, subtract or correct the pleadings. The parties require an amendment of pleadings can ask for order via application of amendment and the court shall consider their application based on the law, principals and decision of cases.

 

Types of the amendment

Pleadings can be amended in two particular situations.

  1. Sue moto court order under Order VI, Rule 16 &
  2. On the basis of an application by any party under Order VI, Rule 17

 

Compulsory amendment by Sue moto court order

The court itself may at any stage of the proceedings fast and order for striking out any pleadings or for amending any pleadings or the ground that;

  • it is unnecessary or scandalous, 
  • it is prejudicial or embarrassing,
  • it major delay the fair trial of the suit.

In such order, parties are bound to follow the court order, therefore it is called a compulsory amendment.

 

Voluntary amendment by a party 

When we mention amendment of pleading generally we indicate this voluntary amendment of pleadings by a party. [Hereinafter mentioned as “Amendment of pleadings”]

 

Why do we need an amendment of pleadings?

Generally, any party must be confined to the documents and facts presented before the court but in some cases, there could be some mistake or inadvertence or subsequent development that may make some problem to the way of justice, in such situation the amendment of pleading is required to ensure the justice and remove those obstacles. But In Rule 7 of Order VI provided that parties shall be prevented from raising new grounds or claims or making new cases except by amendment.

 

Rule 17 of order VI deals with the amendment of pleadings articulated, 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 shall and search terms as just and all such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. [1st part of the rule]

 

It must be noted that the real question of controversy has not been defined in the law, for that some case laws provide help. Based on the number of established case laws we can create a list when and for what reason can be allowed or not allowed.

 

When an amendment can be allowed

  1. to determine the real question of controversy,
  2. to avoid multiplicity of the suit, 
  3. to add parties and add schedules,
  4. to add an alternative claim or relief or an alternative defence,
  5. to adjudicate and settle all controversies between the parties completely and effectively,
  6. to correct misdescription of the property mentioned in the pleadings or to correct the address of the property,
  7. to add for the relief it is found to be necessary
  8. to remove any defects in the nature of signing off the plaint and verification

 

Amendment of pleadings when not to be allowed

  1. if plaintiff’s suit wholly displaced by amendment,
  2. if amendment takes away the right acquired by time,
  3. if amendment introduced different or new or inconsistent suit,
  4. If it changes is the nature and character of the suit,
  5. when the amendment causes prejudice to other parties,
  6. when the claims are barred by law or time
  7. if ti made for unusual delay
  8. if it is not bonafide
  9. If such amendment is not necessary at all.

 

Can an amendment be acceptable when the nature of the suit is changed?

It is a well-established principle that an amendment which changed the nature of the suit should not be allowed. It is held in Abdul Motable vs. Ershad Ali, 1998 BLD (AD)  121 but the question remains when it can be said that the nature of suit is changed in that matter the appellate division observed that the nature and corrector of the suit do not change so long as fundamental character of the suit remains the same.

In another case, NMC Model High School vs. Obidur Rahman, 31 DLR (AD) 133  The apex court held that unless the other party is prejudiced an amendment should be allowed even if the changes the nature and character of the suit or introduce a new case or even if it takes away any right accrued to the other parties if the interest of the justice so requires or if it is found to be necessary to determine the real issues and controversies between the parties. This observation is later supported by a number of other judgments.

Therefore, it can be said that, all amendments ought to be allowed which satisfy two conditions

  1. It is not prejudiced to the other party
  2. it is necessary to determine the real question in controversy between the party.

 

When or at what stage an amendment of pleadings can be accepted?

Rule 17 of order VI clearly stated that pleadings can be amended at any stage of the proceedings that means when there is a sufficient cause an amendment would be done with the permission of the court, thus, it can be said that an amendment of pleadings can be held in any stage of the suit.

Amendment at the appeal stage

Now there is a common question that, whether an amendment can be held after the judgement or at the Appellate stage or not?

The answer is, “yes”, an amendment may also be allowed at appellate state because our legal reference Rule 17 of Order VI mentioned that, “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings..” and an appeal is the continuation of a suit as mentioned under Garikapati Veeraya vs N. Subbiah Chaudhry, AIR 1957 SC 540, therefore, an amendment of pleadings can also be allowed at the appellate stage.

Some other case reference made it direct and more clear, in Keramot Ali Vs. Yunus Ali [DLR (SC) 120] held that the court may grant application of amendment of pleadings at or after the trial or in the appeal or revision or in the appellate division or even at the execution process.

In another case Bimal vs. custodian [42 DLR 227] it was held that amendment of pleadings is permissible for determination the real question between the parties but there are also some situation when the amendment of pleadings is not permissible. These situations are best presented by the case Municipal committee vs. Rafiq [25 DLR 97]  held that prayers at amendment at appellate stage should not be allowed if it is not bonafide, in therefor an appeal without good faith can be rejected if not in good faith. Moreover, the general provision regarding amendment of pleadings shall also be applicable in such case.

But in the proviso of Rule 17 of Order VI it warned that, no application for amendment shall be allowed after the trial has commenced, unless the Court is of opinion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Moreover, it provided further that, if the court thinks that the party applied for amendment is doing it to delay the proceedings the court may order for compensation to the objector.

 

Other provisions

Though Order VI provides us with an overall picture of amendment of pleadings, there are more provisions that can add value to such amendment as Order VI is not an exhaustive provision.

Such as section 151 of CPC the inherent power of the court can be applied to amend pleadings where it is required for ends of justice, regardless of the stage of the suit.

Another provision of CPC is Section 153 where it is provided Court may at any time amend any defects or error in processing in a suit. 

 

For the above discussion, it can be concluded that amendment of pleadings is not a right but at the same time, the court cannot reject the application of pleadings arbitrarily, both the court and the parties must find an adjust balance through case laws and legal principal for the ends of Justice. 

Help others by sharing
  • 18
  •  
  •  
  • 1
  •  
  •  
  •  
  •  
    19
    Shares

Law Help BD is a platform to share legal knowledge, it is not an alternative to a lawyer. A lawyer needs to research and try various strategy to get the best outcome for his client which can be different than a general explanation of the law. Therefore, it is advised to get an experienced lawyer if there is any specific problem to deal with, you can also hire us by clicking in the blue circle below (at left) or via e-mail at LawHelpBD@gmail.com

Rayhanul Islam

Rayhanul Islam

Rayhanul Islam is a lawyer by profession, he is also a researcher. Critical thinking is his main focus. He is the founder and Editor in Chief of Law Help BD. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human right concept to the root level. e-mail: rayhan@lawhelpbd.com

Leave a Reply

Your email address will not be published. Required fields are marked *