Unamended Pleading Loses Efficacy Once Amendment Is Allowed; Party Cannot Capitalise On Its Own Default: J&K&L High Court
The Jammu and Kashmir and Ladakh High Court has held that once an application for amendment is allowed and a direction is issued to file a fresh application within specified time, the unamended pleading loses its efficacy for adjudication.
Assigning the reason to the observation, the court underscored that permitting reliance on the unamended version would defeat the very purpose of granting amendment and that a party cannot capitalize on its own default and misrepresent facts before the Court.
The High Court thus dismissed a Civil First Appeal challenging a decree passed under Order XXXVII of the Code of Civil Procedure for recovery of ₹1.50 lakhs, holding that the appellants had failed to avail the opportunity granted to them to file a fresh application for leave to defend, and that their unamended pleading had lost its efficacy once the amendment was permitted and the direction to file a fresh application was issued.
The Court was hearing a Civil First Appeal filed by the defendants-appellants against the judgment and decree in a suit instituted under Order XXXVII CPC for recovery of ₹1.50 lakhs, which was decreed in favour of the plaintiff-respondent on the strength of a notarized agreement and a Demand Promissory Note (Hundi).
A Single Bench of Justice Shahzad Azeem, while observing that
“...once an application for amendment is allowed and a direction is issued to file a fresh application within specified time, the unamended pleading loses its efficacy for adjudication,” held that “once amendment is permitted, adjudication must proceed on the amended pleadings. Otherwise, the very object of amendment stands frustrated.”
The respondent, engaged in the fruit business, claimed to have paid ₹1.50 lakhs to appellant towards supply of fruits for the season 2004-2005. In respect of this transaction, a notarized agreement and a Demand Promissory Note (Hundi) were executed. Alleging breach by appellant, the respondent demanded repayment and, on failure, instituted a suit under Order XXXVII CPC on the strength of the said agreement and DP Note.
Summons for appearance were issued. The appellants filed an application seeking leave to defend, which was deficient in material particulars. The appellants then moved an application for amendment of the leave application and the trial court allowed the amendment application and directed the appellants to file a fresh application incorporating the proposed amendments within 15 days, failing which appropriate orders would follow.
Despite the opportunity and the rider, the appellants failed to file the fresh application within the stipulated period. Consequently, the trial court, being satisfied that the suit strictly fell within Order XXXVII CPC on the basis of the pleadings, agreement and the DP Note, decreed the suit in favour of the respondent.
The appellants challenged the judgment and decree on the ground that they had filed the written statement and an application for its amendment could not be pursued owing to a medical emergency. They also challenged the suit on the ground that it was not instituted in accordance with Order XXXVII Rule 2(b) and (c) CPC.
Court's Observations:
Adjudicating the matter Justice Azeem first noted that the challenge was pitched on vague and omnibus grounds without particularizing the precise nature of the contravention of Order XXXVII CPC. He observed that the cause title and body of the plaint sufficiently indicated that the suit was brought under the summary procedure. The Court held,
“...The provisions of Order XXXVII Rule 2 being procedural, what is required is procedural compliance, not pedantic adherence to form. It is enough that the plaint contains sufficient averments which show that the suit is covered by the said Order.”
The Court then examined the conduct of the appellants. It remarked,
“...The appellants despite being expressly permitted to amend their application for leave to defend and granted adequate time to file fresh application, failed to do so.” The Court further noted,
“....The record further reveals that the appellants have made a serious misrepresentation in the memorandum of appeal by stating that leave to defend was granted, that a written statement was filed and that an application to amend the written statement could be pursued due to medical emergency, which is factually incorrect statement. This amounts to suppression and misrepresentation of material facts. On this ground alone, the contention advanced on behalf of the appellants are liable to be rejected.”
Addressing the contention that the trial court was duty-bound to consider the unamended leave application, the Court held,
“...This plea is without substance, once an application for amendment is allowed and a direction is issued to file a fresh application within specified time, the unamended pleading loses its efficacy for adjudication. To permit reliance on the unamended version would defeat the very purpose of granting amendment.”
Relying upon the Allahabad High Court decision in Jagnarain v. Radhey Shyam Singh, 2003 SCC Online All 1474, and the Himachal Pradesh High Court decision in Vishwa Nath v. Shashi Kant, 2007 SCC Online HP 359, the Court observed that once amendment is permitted, adjudication must proceed on the amended pleadings. The Court held,
“Therefore, once amendment is permitted, adjudication must proceed on the amended pleadings. Otherwise, the very object of amendment stands frustrated.”
The Court thus concluded,
“...The trial court was justified in declining to fall back upon the unamended leave application after having allowed amendment and afforded opportunity to file fresh application, which opportunity was not availed of. Therefore, the appellants cannot be allowed to capitalize on their own default.”
Accordingly the appeal was dismissed and the impugned judgment and decree were affirmed.
Case Title: Abdul Gani Ganie and Another v. Abdul Gani Bhat
Citation: 2026 LiveLaw (JKL) 300