Can a co-defendant oppose an application for amendment filed by another defendant? read on…

This interesting question arose in a case before the High Court of Bombay in the case of Armando Pereira & Anr. Vs. Shri Jude D’Souza & Ors. (2009) (accessible at :

The facts of the case lie in a very narrow conspectus :

  • The case arose from a property dispute between family members.
  • A lady, let’s call her ‘X’, died leaving behind a property named ‘Red Acre’.
  • Plaintiffs were the sons of ‘X’.
  • Defendant No.1 & 3 were her real brothers.
  • Plaintiffs argued that by virtue of a deed of succession they have been declared as ‘successors’ of deceased ‘X’ and, therefore, entitled to the property in that capacity. They claimed to have been excluded from the enjoyment and rents of the property by Defendant No.1, who was bent upon on usurping the same.
  • Defendant No.1, in his written statement, argued that although the property ‘Red Acre’ was in the name of ‘X’, he was the real owner, having paid the entire consideration for the same.
  • Defendant No.3 adopted the same stance (i.e conceded to the ownership of Defendant No.1) and the matter proceeded on that premise.
  • However, in the course of the litigation, Defendant No.3 moved an application for amendment of pleadings seeking to lay an independent claim on the property, being one of the legal heirs.
  • This amendment was resisted not only by the Plaintiff, but also a co-defendant – Defendant No.1.

In this background, the question of legal capacity of a co-defendant (Defendant No.1, in this case) to oppose an amendment application by another defendant (Defendant No.3) arose. 

The Court ruled that though ordinary in such cases only the plaintiff has a right to oppose and be heard but the same cannot be laid down as an absolute and unexceptionable rule. There might be cases where such an opposition would be permitted. The rationale of the order can be summed up as follows:

a) When the interests of co-defendants are adverse to each other, the Court would certainly be required to decide a dispute between the two defendants. Such a contingency can arise even when the plaintiff abandons the claim and one of the defendants has substantial question to be decided as against any of the other defendants. Order 23 Rule 1(a) of Civil Procedure Code, permits the defendant to be transposed as a plaintiff. This is precisely because there could be a dispute between two defendants.

b) If there is any admission in the pleadings of one of the defendants, which may help the other defendant, he has every right to resist the admission being withdrawn. The Court placed reliance on Section 17 and 18 of the Evidence Act that deal with admissions (and in case of Section 18, admissions made by persons having interest in subject matter);

c) The Court also relied on Order 12 of the CPC to emphasise the importance of admissions and the fact that statement made by ‘any party’ may amount to admissions, and this expression would include admissions made by co-defendants.

The Court held :

In the instant case, the plaintiffs have claimed that they are the owners of half property while the defendant No. 1 claims that he had purchased the suit property in the name of the defendant No. 3 from his own funds. The defendant Nos. 3 and 4, by their original written statement, had endorsed this stand of the defendant No. 1. Obviously, they had made statement as envisaged by Section 18 which could be treated as an admission. Rule 1 of Order 12 of Civil Procedure Code, says that any party to a suit, may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any other party. The words used in Rule, are ‘any other party’ and not necessarily an adverse party. It could be either the plaintiff or the defendant also.

With these observations, the Court went on to rule that a co-defendant does have a right to challenge or oppose the amendment sought to be made by the other defendants, in certain situations such as the above. 

PS : Even otherwise in the merits of the case, the court disallowed the amendments for two reasons : i) Highly belated; ii) Tantamount to taking away of categorical admissions that had inured to the benefit of Defendant No.1. 

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