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CPC Order 6 Part-2
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ORDER 6 – PLEADINGS
ORDER 6 deals with pleadings in general.
According to Or. 6 R. 1 “Pleading” shall mean plaint or written statement. Plaint is the plaintiff's pleading in which the plaintiff sets out his cause of action with all necessary particulars. Written Statement is the defendant's pleading in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which are in his favour, adding such legal objections as he wishes to take to the claim. Where the defendant, in his written statement, pleads a set-off, the plaintiff may file his written statement thereto. Again, in some cases, the defendant after filing his written statement may file an additional written statement with the leave of the court.
The whole object of pleadings is to ascertain the real disputes between the parties, to narrow down the area of conflict and to see where the two sides differ, to prevent one party from taking the other by surprise, to diminish expense and delay and to prevent miscarriage of justice.
GANESH TRADING CO. V. MOJI RAM [AIR 1978 SC 484.]
The Supreme Court observed, "Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."
VIRENDRA KASHINATH V. VINAYAK N. JOSHI [AIR 1999 SC 162.]
The Supreme Court stated, "The object of the rule is twofold. First is to afford the other side intimation regarding the particular facts of his case so that they may be met by the other side. Second is to enable the court to determine what is really the issue between the parties.
Sub-rule (1) of Rule 2 lays down the fundamental principles of pleadings. It reads as under: Every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
On analysis, the following general principles emerge:
1. Pleadings should state facts and not law;
2. The facts stated should be material facts;
3. Pleadings should not state the evidence; and
4. The facts should be stated in a concise form.
FACTS AND NOT LAW
The first principle of pleadings is that they should state only facts and not law. It is the duty of the parties to state only the facts on which they rely upon for their claims. It is for the court to apply the law to the facts pleaded.
GOURI DUTT GANESH LALL FIRM V. MADHO PRASAD, AIR 1943 PC 147: 209 IC 192.
In this regard it was held in above case of that the law of pleading may be tersely summarised in four words, "Plead facts not law."
Thus, existence of a custom or usage is a question of fact which must be specifically pleaded. Similarly, intention is also a question of fact and it must be pleaded. Again, waiver or negligence is a plea of fact and must be pleaded in the pleading. But a plea about maintainability of the suit raises a question of law and need not be pleaded.
Likewise, when Hindu sons are sued for a debt incurred by their deceased father, it is not necessary to formulate in the plaint the Hindu Law as to the pious obligation of Hindu sons to pay their father's debt. A construction or interpretation of a document, being a point of law, need not be pleaded. This is based on the principle that a judge is bound to apply correct law even if incorrect law is pleaded by a party.
A mixed question of law and fact, however, should be specifically pleaded.
MATERIAL FACTS
The second principle of pleadings is that they should contain a statement of material facts and material facts only.
Though the expression "material facts" has not been defined in the Code, it means all facts upon which the plaintiff's cause of action or the defendant's defence depends, or, in other words, all those facts which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the defendant's defence in the written statement.
UDHAV SINGH V. MADHAV RAO SCINDIA [AIR 1976 SC 744.]
In above case the Supreme Court has defined the expression "material facts" in the following words: ▪ "All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts."
In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends.
VIRENDER NATH V. SATPAL SINGH
In above case, it was held that the distinction between "material facts" and "particulars" cannot be overlooked.
Material facts are primary and basic facts which must be pleaded by the party in support of the case set up by it. Failure to state material facts, hence, will entail dismissal of the suit.
Particulars, on the other hand, are the details of the case. They amplify, refine and embellish material facts. They give the finishing touch to the basic contours of a picture already drawn so as to make it full, more detailed and more informative.
Thus, the distinction between "material facts" and "particulars" is one of degree.
Whether a particular fact is or is not a material fact which is required to be pleaded by a party depends on the facts and circumstances of each case.
The rule is not of mere technicality and, therefore, if a party omits to state material facts, it would mean that the plea has not been raised at all and the court will not allow the party to lead evidence of that fact at the trial, unless the court gives that party leave to amend his pleadings.
The reason is that non-mention of material facts amounts to non-pleading and, therefore, no cause of action arises in favour of such party.
FACTS AND NOT EVIDENCE
The third principle of pleadings is that the evidence of facts, as distinguished from the facts themselves, need not be pleaded. In other words, the pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved.
THE FACTS ARE OF TWO TYPES:
FACTA PROBANDA—
The facts required to be proved (material facts); and
The facts by means of which they are to be proved (particulars or evidence).
The pleadings should contain only facta probanda and not facta probantia.
VIRENDER NATH V. SATPAL SINGH[AIR 2007 SC 581.]
In after referring the leading English and Indian decisions on the point, the Supreme Court observed: "There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence).
It is settled law that pleadings must contain only facta probanda and not facta probantia.
The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings.
But the fact or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not 'fact in issue', but only relevant facts required to be proved at the trial in order to establish the fact in issue."
BORRODAILE V. HUNTER [(1845) 5 M&G 639.]
A was insured with an insurance company. One of the terms of the policy was that the policy would be void if the insured committed suicide. A, actually committed suicide by shooting himself with a pistol and thereupon an action was brought against the company on the policy. The company should only plead that A committed suicide. This is facta probanda.
Other facts, that A was melancholy for weeks, that he bought a pistol a day before his death, shot himself with the said pistol and that a letter was found with him addressed to his wife stating that he intended to kill himself —all these facts are facta probantia and they need not be pleaded.
Similarly, it is wrong to set out admission made by the opposite party in the pleading, as that fact is only evidence.
VIRENDER NATH V. SATPAL SINGH, AIR 2007 SC 581;
RM. SESHADRI V. G. VASANTHA PAI, SUPRA.
Thus, in an election petition the plea that cars were used by the successful candidate for the purpose of conveying voters contrary to the Act must be stated in the pleadings since it is a fact in issue (facta probanda). But the facts as to from where the cars were obtained, who hired them and used them for conveyance of voters are merely evidentiary facts (facta probantia) and need not be stated in the pleadings.
CONCISE FORM
The fourth and the last general principle of pleadings is that the pleadings should be drafted with sufficient brevity and precision. The material facts should be stated precisely succinctly and coherently. The importance of a specific pleading can be appreciated only if it is realised that the absence of a specific plea puts the defendant at a great disadvantage. He must know what case he has to meet. He cannot be kept guessing what the plaintiff wants to convey by a vague pleading. Therefore, the pleading must be precise, specific and unambiguous.
According to R.2(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
According to R.2(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
According to R.3 (Forms of pleading) -- The forms in Appendix A when applicable, and where they are not applicable forms of the like character, nearly as may be, shall be used for all pleadings.
RULE 4
Wherever misrepresentation, fraud, breach of trust, wilful default or undue influence are pleaded in the pleadings, particulars with dates and items should be stated.
BISHUNDEO NARAIN V. SEOGENI RAI [1951 SCR 548.]
In the above case, Supreme Court observed: "Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid.
LADLI PRASHAD V. KARNAL DISTILLERY CO. LTD., SUPRA, AT P. 1288 (AIR).
Rule 4 has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. Therefore, if the particulars stated in the pleading are not sufficient and specific, the court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up.
SIGNING AND VERIFICATION OF PLEADINGS: RULES 14-15
14. PLEADING TO BE SIGNED —
Every pleading shall be signed by the party and his pleader (if any).
Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
15. VERIFICATION OF PLEADINGS —
1. Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
2. The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
3. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
A.K.K, NAMBIAR V. UNION OF INDIA, AIR 1970 SC 652 at pp. 653-54.]
The object underlying this provision is to fix the responsibility for the statement that it contains, upon the party verifying or on whose behalf verification is made and to prevent as far as possible disputes as to whether the suit was instituted or defended with the knowledge or authority of the party, who has signed the verification or on whose behalf it has been signed.
BHIKAJI V. BRIJLAL, AIR 1955 SC 610:
PURUSHOTTAM UMEDBHAI & CO. V. MANILAL & SONS, AIR 1961 SC 325]
A defect in the matter of signing and verification of pleadings is merely an irregularity and can be corrected at a later stage of the suit with the leave of the court and a suit cannot be dismissed nor an order be passed against a party on the ground of defect or irregularity in signing or verification of plaint or written statement.
STRIKING OUT PLEADINGS: RULE 16
16. STRIKING OUT PLEADINGS —
The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading—
a. which may be unnecessary, scandalous, frivolous or vexatious, or
b. which may tend to prejudice, embarrass or delay the fair trail of the suit, or
c. which is otherwise an abuse of the process of the Court.
Thus The court is empowered to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious, or tends to prejudice, embarrass or delay the fair trial of the suit or is otherwise an abuse of the process of the court.
SATHI VIJAY KUMAR V. TOTA SINGH[(2006) 13 SCC 353 AT P. 365.]
In the Supreme Court observed that bare reading of Rule 16 of Order 6 of the Code makes it clear that a court may order striking of pleadings in the following cases:
i. where such pleading is unnecessary, scandalous, frivolous or vexatious; or
ii. where such pleading tends to prejudice, embarrass or delay fair trial of the suit; or
iii. where such pleading is otherwise an abuse of the process of the court.
Generally, a court does not advise parties as to how they should draft their pleadings. ▪ But this is subject to the rider that the parties do not offend the rules of pleadings by making averments or introducing pleas which are unnecessary, which may tend to prejudice, embarass or delay fair trial. In such cases, the court will interfere. This power, however, must be exercised by the court sparingly.
AMENDMENT OF PLEADINGS: RULES 17-18
Material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. But many a times the party may find it necessary to amend his pleadings before or during the trial of the case. "Fresh information has come to hand; Interrogatories have been fully answered by his opponent; Documents whose existence was unknown to him have been disclosed which necessitates reshaping his claim or defence. Or his opponent may have raised some well-founded objections to his pleadings, in which case it will be advisable for him to amend at once his pleadings before it is too late."
RULE 17. AMENDMENT OF PLEADINGS —
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 be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
THE OBJECT OF THE RULE
The object of the Rule is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
Ultimately, courts exist for the purpose of doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties.
Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them.
Following are the important cases on the point of explanation of object of amendment of pleadings:
1. Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249:
2. Cropper v. Smith [(1884) 29 Ch D 700.]
WIDE DISCRETION ON A COURT
Rule 17 of Order 6 confers wide discretion on a court to allow either party to alter or amend his pleading at any stage of the proceedings on such terms as it deems fit. Such discretion, however, must be exercised judicially and in consonance with well-established principles of law.
APPLICABILITY TO OTHER PROCEEDINGS
Over and above civil suits, the provisions of Rule 17 apply to several other proceedings such as execution proceedings, insolvency proceedings, arbitration proceedings, election matters, proceedings under the Land Acquisition Act, claim petitions etc.
Even where the provisions of the Code are not applicable, courts and tribunals are competent to devise their own procedure consistent with and based on the general principles of justice, equity and good conscience.
RULE 17: WHETHER EXHAUSTIVE
The provisions of Rule 17 of Order 6 are not exhaustive of the power of a court in a matter of amendment of pleadings. The power of amendment is inherent in the court and where Rule 17 does not apply, resort can be had to Section 151 of the Code.
LEAVE TO AMEND WHEN GRANTED
The rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings. Where the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order. Therefore, the main points to be considered before a party is allowed to amend his pleading are:
1. firstly, whether the amendment is necessary for the determination of the real question in controversy; and
2. secondly, can the amendment be allowed without injustice to the other side.
The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment should not be allowed.
On the other hand, if the amendment is necessary to decide the "real controversy" between the parties, the amendment should be allowed even though the court may think that the party seeking the amendment will not be able to prove the amended plea.
This is the basic test which governs the courts' unchartered powers of amendment of pleadings. No amendment should be allowed when it does not satisfy this cardinal test.
Thus, it has been held that where the amendment is sought to avoid multiplicity of suits, or where the parties in the plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence, or where
there is a mistake in the statement of the cause of action, or a bona fide omission in making the necessary averments in the plaint, or a suit is brought under a wrong Act, the amendment should be allowed.
The second condition is also equally important, according to which no amendment will be allowed which will cause injustice to the opposite party. It is settled law that the amendment can be allowed if it can be made without injustice to the other side. But it is also a cardinal rule that "there is no injustice if the other side can be compensated by costs".
Thus, the court may allow amendment for the purpose of granting consequential relief; or granting relief on the basis of different approaches to the same facts; or to avoid multiplicity of proceedings; or to take notice of subsequent events; or where the amendment is of a formal nature; or to allow misdescription of parties to be corrected.
LEAVE TO AMEND WHEN REFUSED
Generally, in the following cases, leave to amend will be refused by the court:
Where the amendment is not necessary for the purpose of determining the real question in controversy between the parties. Therefore, if the amendment is not necessary or is merely technical or useless or without any substance, it will be refused.
EDEVIAN V. COHEN. [(1889) 43 CH D187, (CA).]
Above is the leading decision on the point. In that case, A's furniture was wrongfully removed by B and C. A sued B for damages and for judgments against B, A then sued C for damages for the same wrong. After A's evidence was over, C applied for amendment of written statement by pleading judgment against B as bar to suit against him. B and C being wrongdoers, the judgment against B precluded A from suing C for the same wrong. The application was rejected since it was not necessary to decide the real question in controversy between the parties but enabled C to avail for himself the benefit of the technical rule of law.
Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence.
STEWARD V. NORTH METROPOLITAN TRAMWAYS CO.[ (1886) 16 QB178 (CA).]
In the above case, plaintiff filed a suit for damages against the tramway company for damages caused by the negligence of the company in allowing the tramway to be in defective condition. The company denied the allegation of negligence. It was not even contended that the company was not the proper party to be sued. More than six months after the written statement was filed, the company applied for leave to amend the defence by adding the plea that under the contract entered into between the company and the local authority the liability to maintain the roadway in proper condition was of the latter and, therefore, the company was not liable. At the date of the amendment application, the plaintiff's remedy against the local authority was time-barred. Had the agreement been pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under the circumstances, the amendment was refused.
Similarly, where the case of the plaintiff throughout was that the suit property was non-ancestral, an issue as to the character of property was framed, evidence led and the finding was recorded that the property was non-ancestral property; the application for the amendment of the plaint alleging that the property was ancestral cannot be allowed at the appellate stage as it sought to introduce a totally new and inconsistent case.
Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour.
As a general rule, every amendment should be allowed if it can be made without prejudice or injustice to the other side, and one of the classes of cases wherein the amendment may work injustice to the opposite party is where it takes away from a party a right accrued to him by lapse of time. Therefore, in absence of special circumstances such an amendment should not be allowed by the court.
WELDON V. NEAP [(1887) 19 Q8 394 (CA).]
Above is the the English case on the subject. In that case, A filed a suit against B for damages for slander. A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment. At the date of the application, those claims were barred by limitation though they were within the period of limitation at the date of the suit. The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence under the law of limitation) and thus would cause prejudice to him. The rule, however, is not a universal one and under certain circumstances such an amendment may be allowed by the court notwithstanding the law of limitation. The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court in exercising the discretion as to whether the amendment should be allowed, but it does not affect the power of the court if the amendment is required in the interests of justice.
Leave to amend will be refused where the application for amendment is not made in good faith.
As a general rule, leave to amend ought not to be granted if the applicant has acted mala fide.
SUBSEQUENT EVENTS
As a general rule, every litigation must be determined on the basis of facts existed on the date of filing of the suit. A court may, however, take into account subsequent events in order to shorten litigation or to preserve, protect and safeguard rights of both the parties and to subserve the ends of justice. For that purpose, a court may allow amendment in pleading of the parties.
MERITS NOT TO BE CONSIDERED
While considering whether an application for amendment should or should not be allowed, ▪ the court should not go into correctness or falsity of the case in the amendment. "The merits of the amendment sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment."
WHO MAY APPLY?
Normally, it is the plaintiff or the defendant who may apply for amendment of his pleading i.e. plaint or written statement. Where there are two or more plaintiffs or defendants in a suit, one or more plaintiffs or defendants may make such application.
WHO MAY GRANT AMENDMENT?
Ordinarily, it is the trial court which can grant an application for amendment of plaint or written statement. ▪ But an appellate or revisional court can also grant such application for amendment of pleading. ▪ Even the Supreme Court may grant an application for amendment of plaint or written statement in an appropriate case.
NOTICE TO OPPOSITE PARTY
When an application for amendment is made by a party to a suit, an opportunity should be given to the other side to file an objection against such prayer. An order granting amendment without hearing the opposite party is not legal and valid. But, if the amendment is purely formal or technical in nature, non-issuance of notice is not material. Where the plaint is amended, notice of amended plaint must be served on the defendant.
RECORDING OF REASONS
While deciding an application for amendment of pleading, the court must apply its mind and should record reasons for allowing or not allowing the amendment
AT ANY STAGE OF PROCEEDINGS
GANGA BAI V. VIJAY KUMAR, AIR 1974 SC1126;
ARUNDHATI MISHRA V. RAM CHARITRA PANDEY, (1994) 2 SCC 29;]
Leave to amend may be granted at any stage of the proceedings. Such amendment applications are not governed by any law of limitation. Leave to amend may be granted before, or at, or after the trial, or in First Appeal, or in Second Appeal or in Revision, or in the Supreme Court or even in execution proceedings, provided the decree is legal, lawful and enforceable, not otherwise.
Proviso to Rule 17, as inserted by the Amendment Act of 2002, now restricts and curtails the power of the court and declares that the court should not allow such amendment after the commencement of the trial unless it comes to the conclusion that in spite of due diligence, the matter could not have been raised by the party before the commencement of the trial.
DOCTRINE OF "RELATION BACK"
Normally, an amendment relates back to the pleading, but the doctrine is not absolute, unqualified or of universal application. In appropriate cases, the court may order that the amendment would take effect from the date an application was made or the amendment was allowed and not from the date when the plaint or written statement was presented.
LIMITATION
No period of limitation is prescribed either in the Code of Civil Procedure or in the Limitation Act for making an application for amendment. On the contrary, Rule 17 permits a party to alter or amend his pleading "at any stage" of the proceedings. But it is well-settled that ordinarily, an amendment of pleading should not be allowed if the effect of such amendment is to deprive a party of a right which he has acquired by virtue of the law of limitation. The above principle also must be read in the light of proviso to Rule 17 inserted by the Amendment Act of 2002.
RES JUDICATA
Strict rule of res judicata does not apply to amendment of pleadings.
SUCCESSIVE APPLICATIONS
As a general rule, once an application for amendment is rejected on merits, a second application on the same averments is not maintainable. But, if there is change of circumstances, an application for amendment may be filed provided no prejudice is caused to the other side. Similarly, a fresh application would also lie if earlier one is withdrawn or dismissed for default or not decided on merits.
ON SUCH TERMS AS MAY BE JUST
The rule confers an unfettered discretion on the court as to the terms to be imposed while granting an amendment of pleadings. Generally, amendment will be allowed on payment of costs to the opposite party by the party amending his pleadings. The costs awarded, however, should be reasonable and not exemplary.
There has been divergence of judicial opinion whether a party who has accepted costs under an order of amendment can subsequently challenge the validity of the order of amendment. One view is that he cannot since he has taken benefit (of costs) under that order. The other view is that he can, since award of costs has nothing to do with the validity or otherwise of an order of amendment.
BIJENDRA NATH V. MAYANK SRIVASTAVA AIR 1994 SC 2562 at p. 2572-73.]
In above case, the Supreme Court rightly held that the doctrine of estoppel precluding the party from challenging an order of amendment would apply where the party has accepted the costs as a condition precedent to the amendment.
APPEAL
An order allowing or disallowing an application for amendment is neither a "decree" as defined in Section 2(2) nor an order appealable under Section 104 read with Order 43 of the Code. No appeal, therefore, lies against such an order. An order allowing or disallowing application, however, may be attacked in an appeal from a decree.
REVISION
An order granting or refusing amendment is a "case decided" and is subject to the revisional jurisdiction of the High Court. Since it is at the discretion of the court to allow an amendment, while exercising powers under Section 115 of the Code, normally, the High Court will not interfere with exercise of discretion by the trial court.
WRIT PETITION
Though, it is open to an aggrieved party to challenge an order passed by the trial court allowing or rejecting an application for amendment of pleading by filing a writ petition under Article 226 or 227 of the Constitution of India, normally, a High Court will not exercise extraordinary or supervisory jurisdiction to interfere with the order of the trial court unless it has caused serious prejudice to the applicant or has resulted in miscarriage of justice. Ordinarily, the Supreme Court will also not exercise its power under Article 136 of the Constitution by interfering with the order passed by the High Court on an application for amendment.
18. FAILURE TO AMEND AFTER ORDER —
If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court.
The court has discretion to extend the time even after the expiry of the period originally fixed. In an appropriate case, the court may allow the amendment to be carried out by the party in spite of his default on payment of further costs.