Thread by @CiteCase

#Query #LearnCPC

In appeal against order of rejection of plaint, the plaintiff-appellant files an application before the Appellate Court seeking amendment of plaint? Can this application be allowed at the appellate stage?

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The basic question which needs to be answered first is whether an amendment of plaint can be permitted at appellate stage? This issue is fairly settled in view of the expression 'at any stage of proceedings' in O VI R 17. This has been interpreted to include appellate stage.

On this point, i.e whether a plaint can be allowed to be amended at the appellate Stage, the Kerala HC has held that Appellate Court can allow amendments to the pleadings, even at the appellate stage, notwithstanding the proviso to Order VI Rule 17 CPC. indiankanoon.org/doc/119860392/

There are many judgments of High Courts which take a similar view and there does not appear that there is a controversy any more on this issue whether an Appellate Court is barred from allowing an amendment of pleadings. So we are answering on the basis of this understanding.

The issue raised in this query is rather peculiar. Plaint stands rejected. Appellate court is in seisen of the issue whether this rejection is proper or not. If it finds that the rejection was proper, then the question of allowing amendment of plaint does not actually arise.

If it finds that plaint ought not to have been rejected, then also the question of amendment of pleading is not a relevant issue before it. The point is that for determination of the lis before it, the question of amendment is not a factor at all.

The situation mentioned in the query is akin to a situation where an amendment application has been brought before the Trial Court itself after the plaint is rejected. CPC does not envisage such an application. Rather it allows plaintiff to file a new plaint (Read O VII R 13)

Now, there is a recent SC judgment which said that while rejecting a plaint under Order 7 Rule 11(d) , the Court cannot grant liberty to the plaintiff to amend the plaint. [see Sayyed Ayaz Ali vs Prakash G. Goyal (2021) 7 SCC 456 indiankanoon.org/doc/87147211/ ]

We have not come across any judgment yet which allowed amendment of plaint in an appeal against order of rejection of plaint. This is obvious because most of the plaintiffs would file a fresh plaint after rejection of plaint rather than approaching the appellate court like this.