1. JAI JAI RAM MANOHAR LAL V. NATIONAL BUILDING MATERIAL SUPPLY CO.

[AIR
1969 S.C. 1267 100]

FACTS: Manoharlal s/o Jai Jai Ram commenced an action in the Court of the Subordinate
Judge, for valuer of timber supplied to the defendant. The action was instituted in the name of
'Jai Jai Ram Manohar Lal' which was the name in which the business was carried on. The
plaintiff signed and verified the plaint as 'Jai Jai Ram Manohar Lal, by the pen of Manohar
lal.' Later he applied to the Court for leave to amend the plaint. In the application he averred
that the business carried on under the name Jai Jai Ram Manohar Lal was a joint Hindu
family business and the name was not an assumed or fictitious one as it contained his-name
and that of his father. On these averments he prayed that he be allowed to describe himself in
the cause title as Manohar Lal proprietor of Jai Jai Ram Manohar Lal and state that he carried
on the business in timber in the name of 'Jai Jai Ram Manohar Lal'. The application was
'allowed by the trial Judge The defendant then filed a supplementary written statement raising
two additional contentions:
(1) That the plaintiff was not the sole owner of the business and that his other brothers were
also the owners of the business; and
(2) That the amendment took effect from the' date on which it was made and if so, the suit
was barred by limitation.

ISSUE: Whether the leave for amendment is granted on account of bonafide omission or
negligence?

JUDGMENT: Rules of procedure are, intended to, be a handmaid to the administration of

justice. A party cannot be refused relief merely because of same mistake, negligence,
inadvertence or even infraction of the rules of procedure. The Court always gives leave to
amend the pleading 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. However negligent or careless may have been the first
omission and however late the proposed amendment, the amendment may be allowed if it can
be made without injustice to the other side. There is no rule that unless in an application for
'amendment of the plaint it is expressly averred  that the error, omission or misdescription is
due to a bona fide mistake  the court has no power to grant leave to amend the plaint

RATIO: The power to grant amendment of the pleadings is intended to serve the ends of
justice and is not governed by any such narrow or technical limitations.
2.  M/S GANESH TRADING CO. V. MOJI RAM [AIR 1978 SC 484]

FACTS: The appellant-plaintiff firm had filed a suit through one of its partners, for recovery of
Rs. 68,000/- due under a promissory note. After the written statement had been duly filed, an
amendment of the plaint was applied for, on the ground that the plaintiff had inadvertently
omitted to mention the essential fact that the firm had actually been dissolved before the
institution of the suit. The Trial Court, and the High Court, in revision, refused to allow the
amendment on the ground that it would amount to the introduction of a new time barred
cause of action.

ISSUE: Whether the amendment constituting inadvertently omitted essential fact represents
‘New Cause of action’ and whether such can be allowed by the court?

JUDGMENT: The mere specification of the capacity in which the suit was filed could not
change the character of the suit or the case. Even where an essential fact is lacking from
averments in the plaint, the cause of action will be defective but this does not, by itself,
necessarily constitute a new cause of action if the plaint is amended. However negligent or
careless may have been the first omission, and however late the proposed amendment, the
amendment may be allowed if it can be made without injustice to the other side subject to
conditions such as payment of costs.

RATIO: The defective pleadings are generally curable if the cause of action sought to be
brought out was not ab-initio completely absent.

3. DALIP KAUR V. MAJOR SINGH [AIR 1996 P & H 107 109]

FACTS: In a suit for possession of and for permanent injunction restraining the defendants
from alienating the land by way of sale, exchange, gift etc., the plaintiff filed an application
under Order 6, Rule 17 of the Code of Civil Procedure, 1908 seeking amendment of the plaint
by making a prayer for declaring the judgment and decree passed in a previous civil suit on
the property titled 'Major Singh v. Balbir Kaur' as null and void and ineffective against the
rights of the plaintiff. The application for amendment was dismissed mainly on the ground
that the same has been filed without explaining the alleged inordinate delay. It was further
held that the proposed amendment of the plaint was likely to change the foundation of the suit
by introducing the distinct cause of action.

ISSUE: Whether an amendment which amounts to or results in defeating a legal right to the
opposite party on account of lapse of time should be allowed?
JUDGMENT: The purpose and object of Order 6, Rule 17, C.P.C. is to allow either party to
alter or amend his pleadings in such manner and on such terms as may be just. The power to
allow the amendment is wide and can be exercised at any stage of the proceedings in the
interest of justice on the basis of guidelines laid down by various High Courts and the
Hon'ble Supreme Court of India.  The object of the rule was to decide the rights of the parties
and not to punish them for their mistakes, by allowing the amendment of the pleadings in the
appropriate cases. The exercise of such far-reaching 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. The relief claimed is not barred by time and by the proposed
amendment no vested right of the respondent would be taken away. The amendment does not
defeat any legal right allegedly having accrued to the opposite party and the delay in filing
the petition for amendment can properly be compensated by costs.

RATIO: Any proposed amendment as long as it does not cause prejudice to the other side
which cannot be compensated by means of costs should be allowed at stage of proceedings.

4. B.K. NARAYANA PILLAI V. PARAMESWARAN PILLAI [(2000) 1 SCC 712]

FACTS: The plaintiff filed a suit against defendant praying for the grant of mandatory and
prohibitory injunction seeking eviction allegedly on the ground of being a licencee. In the
written statement, the defendant pleaded that he was not a licencee but a lessee. During the
trial of the suit the defendant filed an application for amendment of the written statement to
incorporate an alternative plea that in case the court found that the defendant was a licencee,
he was not liable to be evicted as according to him the licence was irrevocable. He further
wanted to add a plea that first and second prayers in the plaint were barred by limitation and
that as acting upon the licence he has executed works of permanent nature and incurred
expenses in execution of the same and therefore his license cannot be revoked by the grantor
under Section 60(b) of the Indian Easements Act. 1882. The prayer was rejected by the Trial
Court as also by the High Court on the ground that the proposed amendment, was mutually
destructive which, if allowed, would amount to permitting the defendant to withdraw the
admission allegedly made by him in the main written statement.

ISSUE: 1) whether prolonged delay is ground of rejection of amendment to pleadings where

other party could be compensated by costs?
2) Whether an application of amendment to bring in alternative plea can be rejected by the
court?

JUDGMENT: The principles applicable to the amendments of the plaint are equally applicable
to the amendments of the written statements. The courts are more generous in allowing the
amendment of the written statement as question of prejudice is less likely to operate in that
event. The defendant has a right to take alternative plea in defence which, however, is subject
to an exception that by the proposed amendment other side should not be subjected to
injustice and that any admission made in favour of the plaintiff is not withdrawn. All
amendments of the pleadings should be allowed which are necessary for determination of the
real controversies in the suit provided the proposed amendment does not alter or substitute a
new cause of action on the basis of which the original his was raised or defence taken.
Inconsistent and contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations of facts should not be allowed to be incorporated by means
of amendment to the pleadings. Proposed amendment should not cause such prejudice to the
other side which cannot be compensated by costs. No amendment should be allowed which
amounts to or relates in defeating a legal right accruing to the opposite party on account of
lapse of time. The delay in filing the petition for amendment of the pleadings should be
properly compensated by costs and error or mistake which, if not fraudulent, should not be
made a ground for rejecting the application for amendment of plaint or written statement.

Main rules of pleadings and provisions for the amendment of pleadings, subject to such terms
as to costs and giving of all parties concerned necessary opportunities to meet exact situations
resulting from amendments, are intended for promoting the ends of justice and not for
defeating them.

RATIO: Even if a party is inefficient in setting out its case initially the short coming can
certainly be removed generally by appropriate steps taken by a party which must no doubt
pay costs for the inconvenience or expense caused to the other side from its omissions. The
error is not incapable of being rectified so long as remedial steps do not unjustifiably injure
rights accrued.

5. SALEEM BHAI V. STATE OF MAHARASHTRA [AIR 2003 SC 759]

FACTS: The appellant filed an application under Order VII Rule 11 (Rejection of Plaint)
praying the court to dismiss the suits on the ground that the plaint is liable to be rejected
under Clauses (a) and (d) of Rule 11. While so, the respondents also filed the application
under Order VIII Rule 10 (Procedure when party falls to present written statement called for
by Court) to pronounce judgment in the suits as the appellant did not file his written
statement. There was also an application by the appellant under Section 151 C.P.C. praying
the court to decide first the application under Order VII Rule 11. The trial court dismissed the
application under Order VIII Rule 10 as well as the application filed under Section 151
C.P.C.

ISSUE: Whether an application under Order VII Rule 11 C.P.C. ought to be decided on the
allegations in the plaint and filing of the written statement by the contesting defendant is
irrelevant and unnecessary?

JUDGMENT: A perusal of Order VII Rule 11 C.P.C. makes it clear that the relevant facts
which need to be looked into for deciding an application thereunder are the averments in the
plaint. The trial court can exercise the power under Order VII Rule 11 C.P.C. at any state of
the suit before registering the plaint or after issuing summons to the defendant at any time
before the conclusion of the trial. Therefore, a direction to file the written statement without
deciding the application under Order VII Rule 11 C.P.C. cannot but be procedural irregularity
touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-
exercising of the jurisdiction vested in the court as well as procedural irregularity.

RATIO: For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of
Order VII, the averments in the plaint are germane; the pleas taken by the defendant in the
written statement would be wholly irrelevant at that stage.

6. SANGRAM SINGH V. ELECTION TRIBUNAL [ AIR 1955 SC 425]

FACTS: The appellant filed an election petition under section 100 of the Representation of the
People Act (Grounds for declaring election to be void). He appeared on the first and
'Subsequent hearing at Kotah. The proceedings were then adjourned for certain hearings at
Udaipur. The appellant did not appear on the first three hearings at that place so the tribunal
proceeded ex parte. His counsel appeared on the fourth hearing but was not allowed to take
any further part in the proceedings because no good cause was shown for the earlier non-
appearance and so the tribunal refused to set aside its "ex parte order".

ISSUE: Whether the Tribunal was right in refusing to allow the appellant's counsel to appear
and take part in the proceedings.
JUDGEMENT: Under the CPC there is no such thing as an ex parte order for non-appearance
which precludes further appearance at an adjourned hearing until the Order is set aside. If a
party appears at an adjourned hearing the court has a discretion (which must be exercised
judicially) either to allow him to appear on such terms as it thinks fit, or to disallow further
appearance; but if he is allowed to appear then, unless good cause is shown under Order 9,
rule 7 for the earlier non-appearance the proceedings must continue from the stage at which
the later appearance is entered.

RATIO: Order IX rule 7 gives a party a right to be relegated to the position he would have
occupied if he had appeared at the earlier hearing or hearings if he shows good cause. It does
not per se prevent further appearance when no good cause is shown.

7. RAJNI KUMAR V. SURESH KUMAR MALHOTRA [2003 (3) SCALE 434]

FACTS: The appellant had taken on rent residential flat from the respondent-landlord for a
period of nine months under an agreement of lease reduced to writing. After the expiry of the
term of tenancy she continued to occupy the said premises as tenant. Alleging that the
appellant did not pay the electricity and water consumption charges for the period, the
respondent filed suit under Order 37 (Summary Suits) for recovery of Rs.33,661. On the
ground that summons for judgment was sent by registered post to the appellant pursuant to
the order of the Court, the Court drew inference of deemed service on her, proceeded with the
case and decreed the suit ex parte. The appellant, however, filed application under Rule 4 of
Order 37 (Power to set aside decree) in the trial court to set aside the ex parte decree. The
application was dismissed as no special circumstances were stated in the petition both in
regard to there being illegality in deeming service of summons for judgment on the appellant
as well facts sufficient to entitle him to defend the suit. Aggrieved by the order of the trial
court, the appellant filed revision in the High Court, which was also dismissed.

ISSUE: whether the High Court committed jurisdictional error in declining to set aside the ex
parte decree on the application of the appellant under Rule 4 of Order 37, on the ground that
he failed to disclose facts sufficient to entitle him to defend the suit?

JUDGEMENT: The expression 'special circumstances' is not defined in the C.P.C. nor is it
capable of any precise definition. Non-service of summons will undoubtedly be a special
circumstance. In an application under Order 37, Rule 4, the court has to determine the
question, on the facts of each case, as to whether circumstances pleaded are so unusual or
extra ordinary as to justify putting the clock back by setting aside the decree; to grant further
relief in regard to post-decree matters, namely, staying or setting aside the execution and also
in regard to pre decree matters viz., to give leave to the defendant to appear to the summons
and to defend the suit. In considering an application to set aside ex parte decree, it is
necessary to bear in mind the distinction between suits instituted in the ordinary manner and
suits filed under Order 37 C.P.C. Rule 4 of Order 37 specifically provides for setting aside
decree, therefore, provisions of Rule 13 of Order 9 will not apply to a suit filed under Order
37. That is why where an application under Rule 4 of Order XXXVII is filed to set aside a
decree either because the defendant did not appear in response to summons and limitation
expired, or having appeared, did not apply for leave to defend the suit in the prescribed
period, the Court is empowered to grant leave to defendant to appear to the summons and to
defend the suit in the same application. It is, therefore, not enough for the defendant to show
special circumstances which prevented him from appearing or applying for leave to defend,
he has also to show by affidavit or otherwise, facts which would entitle him leave to defend
the suit. In this respect, Rule 4 of Order XXXVII is different from Rule 13 of Order IX.

RATIO: A party seeking to set aside an ex-parte decree under Order 37 must disclose facts
which would entitle him to defend the case, even when he has shown sufficient cause for his
absence on the date of passing ex parte decree.

8. BHANU KUMAR JAIN V. ARCHANA KUMAR [AIR 2005 SC 626]

FACTS: Plaintiff filed suit for partition of suit premises. On the date fixed for evidence,
nobody appeared for the defendants even after adjournments where after application was filed
by the plaintiff that he had closed his evidence. Cost of Rs. 200 was imposed on the
defendants with a stipulation that it cost was not paid, the right of cross-examination will be
closed. On the next date defendant No. 1 was again absent, the case was posted ex parte
against her and, cost having not been paid, the right to cross examine was forfeited. On the
date fixed for final argument, the defendant No. 1 did not appear and the case was posted for
delivery of judgment, on which date an application under Order 9 rule 7 was filed by the
defendants for setting aside the order by which the suit was posted for ex parte hearing. The
said application was rejected and a preliminary decree for partition in favour of the plaintiff
was passed.

ISSUE: whether the defendant can seek a leave from the court to set aside the ex parte decree?
Defendant would not be permitted to raise a contention as regards the correctness or
otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/or existence
of a sufficient case for non-appearance of the defendant before it, it would be open to him to
argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the
suit so as to enable him to contend that the materials brought on record by the plaintiffs were
not sufficient for passing a decree in his favour or the suit was otherwise not maintainable.
Lack of jurisdiction of the court can also be a possible plea in such an appeal. The
`Explanation' appended to Order 9 Rule 13 of the Code, however, has to be strictly construed.

RATIO: A Party cannot seek to set aside the ex-parte decree of a trial court on the grounds
nonappearance with sufficient cause or challenging the merits of the suit. Such plea,
questioning the correctness, can only be raised in an appeal to higher court.