GANESH TRADING CO. versus MOJI RAM

GANESH TRADING CO.

MOJI RAM

January 25, 1978

[M. H. BEG, C. J. AND D. A. DESAI, J.]

Civil Procedure Code, Order 6 Rule 17-Amendment of pleadings, when 'J.ernzissible-"New cause of action" whether constituted by staternent of in-a.1vertently omitted essential fact.

The appellant-plaintiff firm had filed suit through one of its partners, for recovery of Rs. 68,000 /- due under promissory note. After the written state-ment had been duly filed, an amendn1ent 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 a11ow the amendment on the ground that it would amount to the introduction of new time barred cause Of action.

Allowing the appeal the ~ourt,

HELD : In suit institut.ed by one of the partners of dissolved firm, 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 btJt this does not, by itself, necessarily constitute new cause of action if the plaint is amen-ded. [619 F, 618 A]

However negligent or careless may have been the first omission, and how-ever late tbe proposed amendment, the amendment may be. allowed if it can be made without injustice to the other side subject to conditions such as pay-ment of costs. [619 A-BJ

Jai Jai Rani Manohar Lal v. National Building Materinl Supply, Gurgaon, 1970(1) S.C.R. 22-A.l.R. 1969 S.C. 1267, followed.

Charan Das v. Amir Khan, 47 I.A. 255; L. J. Leach & Co. Ltd. v. Jardine Skinner & Co., 1957 S.C.R. 438, applied.

Mohan Singh v. Kanshi Rani, 1976 C.L.J. (Civil) p. 135, lppili Satya-narayana v. The Amadalavalasa Cooperative Agricultural and Industrial Society Ltd., A.I.R. 1975 A.P. 22, Agarwal Jorawarmal & Anr. v. Karan1 & Anr.; A.l.R. 19, Nagpur 31; A. K. Gupta & Sons Ltd. v. Da1nodar Valley Corporation,

A.LR. 1967 S.C. 96; and Purshottam Urnedbhai & Co. v. M /r. Afanilal and Sons, 1961 (I) S.C.R. 982; referred to.

Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it rnay be met, to enable Courts to determine \Vhat is really at issue between the parties, and to prevent deviation from the course which litigation on particular causes must take. [615 B-C]

CIVIL APPELLATE JURISDJTION : Civil Appeal No. 1338 of 1977.

Appeal by Special Leave from the Judgment and Order dated 20th April, 1977 of the Punjab and Haryana High Court in Civil Revision No. 508 of 1975.

V. M. Tarkunde and 0. P. Verma or the Appellant.

M. 8. Lal for the Respondent.

... . ...-

The Judgment of the Court was ,delivered by

BEG, C.J. This appeal by special leave indicates how, despite the settled practice of this Court not to interfere, as general rule, with orders of an interlocutory nature, such as one on an application for the amendment of plaint, this Court feels compelled, in order to promote uniform standards and views on questions basic for sound .administration of justice, and, in order to prevent very obvious failures -0f justice, to interfere even in such matter in very exceptional case such as the one now before us seems to us to be. ·

Procedural la'\' is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil ,ca~es 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 deviatio'ns from the course which litigation on particular cau&os of action must take.

Order 6, rule 2 Civil Procedure Code says :

"Every pleading shall contain, and contain only state-ment in 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, and shall, when necessary, be divid•ed into paragraphs, num-bered consecutively. Dates, sums and numb~rs shall be ex-pressed in figures".

Order 6, rule 4 indicates cases i'n which par:icu:ars of its pleading must be set out by party. And, order 6, rule 6 requires only such conditions precedent to be distinctly specified in pleading as party wants to put in issue. Order 6, rule 5 provides for such "further and better statement of the nature of the claim or defence, or further a'nd better particulars of any matter stated in any pleading ...... " as the Court may order, and "upon such terms, as to CO\Sts and otherwise, as may be just''. Order 6, rule 7, contains prohibition against depar-ture of proof from the pleadings except by way of amendment of pleadings. After some provisions relating to special cases and circum-stances, a'nd for signing, verification and striking out of pleadings, comes order 6, rule 17 which reads as follows :

"The Court may at any stage of the proceedings a:low either party to alter or amend his pleadings in such manner and on such ter1ns as 1nay be just, and all such amendments shall be made as may be necessary for the purpos•o of deter-mini'ng the real questions in controversy between the parties".

It is clear from the foregoing summary of th•e main rules of plead-ings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all par:ies concerned necessary oppor-tunities to meet exact situations resulting from amendments, are inten-<led for promoting the ends of justice and not for defeating them. Even if party or its counsel is inefficient in sett;ng out its case in~tially the shortconting can certainly be removed generally by appropriate steps taken by party which must. no doubt pay costs for the inconvenience

or expense caused to the other side from its omissions. The error is not in1:apable of being rectified so long as remedial steps do not unjusti-fiably injure rights accrued.

It is true that, if plaintiff seeks to- alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually fo-the substitution of new plaint or new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which snit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, consti· tute new cause of action. cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of new cause of action which, cured of its short-comings. has really become good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally cur· able if the cause of action sought to be brought out was not ab initiv completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute cause of action where there was none, provided necessary conditions, such as payment of either any addi-tional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on newly constituted cause of action that the Courts should, ordi-narily, refuse prayers for amendment of pleadings.

In the case before us, the appellant-plaintiff Mis. Ganesh Trading Co., Karna!, had filed suit "through Shri Jai Parkash", partner of that firm, based on promissory note, dated 25th August 1970, for recovery of Rs. 68,000/-. The non-paymeut of money due under the promissory note was the real basis. The suit was filed on 24th August 1973, just before the expiry of the period of limitation for the claim for payment. The written statement was filed on 5th June 197~. denying the assertions made in the plaint It was also asserted that the suit was incompetent for want of registration of the firm and was struck by the provisions of section 69 of the Indian Partnership Act

On 31st August 1974, the plaintiff filed an amendment applicaticin wherein it was stated that the plaintiff had "inadvertently omitted' certain material facts which are necessary to incorporate in the plaint so as to enable the Hon'ble Court to consider and decide the subject matter of the suit in its true perspective and which it is necessary to do in order to meet ends of justice". It was explained there that the omission consisted of failure to mention that the plaintiff firm, Ganesh Trading Co. Kamal, had been actually dissolved on 15th July 1973, on which date deed of dissolution of the firm was execute~;

The Trial Court had refused to allow the amendment by its order dated 8th April 1975, on the ground that it amounted to the introduc-tion of new cause of action.

On Revision application before the High Court, the High Court .observed :

"The suit originally instituted was filed on behalf of firm through one of the partners in the amendment pr~yed for, new claim is being sought to be laid on the basis of new facts''.

]t examined the new averments relating to the shares of the partners and the execution of the deed of dissolution of the firm on 15th July 1973. It then said :

"It is on the basis of these averments that title of the suit is sought to be changed from Mis. Ganesh Tradin& Compauy, Kar~al, tbrough. Shri Jai Parkash son .oi Shn Hari Ram, resident of Railway Road, Karna!, to dissolved firm, through Shri Jai Parkash son of Shri Hari Ram, resi-dent of Railway Road, Kamal, ex-partner of the said firm. It would be seen that the change in the heading of the suit is not being sought merely on the ground of mis-description or there being no proper description, the cause of action re-maining the same, but on the other hand, the change in the heading of the plaint has been sought on the basis of the new facts prayed to be allowed to be averred in the amend-ment plaint, for which new basis has been given alleging the dissolution of the partnership on date before the suit was filed in the Court".

We are unable to share the view taken by the High Court. The 1-ligh Court had relied on A. K. Gupta & Sons Ltd. v. Damodar Valfey Corporation.(') In that case the plaintiff had sought declaration of bis rights under the terms of contract. The suit was decreed. But, as the first appellate Court had reversed the decree on the ground that section 42 of the Specific Relief Act barred the grant of mere dec-laratory decree in such case, the appellant had sou;!1t leave, by filing an amendment application in its second appeal before the High Court seeking to add relief to recover such monies as may be found due to bim on proper accounting. By majority, the view expressed by this Court was th(lt the amendment should be allowed although the Court affirmed the principle that, as rule, party should not be allowed, by means of an amendment, to set up new cause of action particttlarly when suit on the new case or cause of action is barred by time.

On that occasion, this Court had also referred to Charan Das v. Amir Khan([2]), and, L. !. Leach & Co. Ltd. v. Jardine Sldnner & Co.('), to hold that "a different or additional approach to the same (!) A.l.R. 1967 S.C. 96. '(2) 47 Ind. App. 255, (3) [1957] S.C.R. 438.

facts" coul<l be allowed by amendment even after the expiry of the statutory period of limitation. It had pointed out that the object of rules of procedure is to decide the rights of the parties and not to punish them for their mistakes or short-coming. It also said that no question of limitation, strictly speaking, arose in such cases because what was sought to be brought in was merely clarification of what was already there. It said (at p. 98) :

"The expression 'cause of action' in the present context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill (1873) 8 CP 107 (116), in different context, for if it were so. no material fact could ever be amended or added and, of course, no one would want to change or add an im-material allegation by amendment. That expression for the present purpose only means, new claim made on new basis constituted by new facts. Such view was taken in Rohimon v. Unicos Property Corporation Ltd., 1962-2 All ER 24, and it seems to as to be the only possible view to take. Any other view would make the rule futile. The words 'new case' have been understood to mean 'new set of ideas'.: Dornan v. J. M. Si/Us and Co. Ltd., 1962-1 All ER 303. This also means to us to be reasonable view to take. No amendment will be allowed to ;ntroduce new set of ideas to the prejudice of any right acquired by any party by lapse of time".

The High Court had also referred to Jai Jai Ram Manohar Lal, v. National Building Material Supply. Gurgao11(1), but has failed to follow the principle which was clearly laid down in that case by this Court. There, the plaintiff had instituted suit in the name of Jai Jai Ram Manohar Lal which was the name in which the business of firm was carried on. Later on, the plaintiff had applied to amei1d the plaint so that the description may be altered into "Matrohar Lal Proprietor Jai Jai Ram Manohar Lal". The plaintiff also sought to clarify paragraph 1 of the plaint so that it may be evident that "Jai Jai Ram Manohar Lal" was only the firm's name. The defendant pleaded that Manohar Lal was not the sole Proprietor. One of the objections of the defendant in that case was that the suit by Manohar Lal as sole owner would be time barred on 18th July 1952, when the amendment was sought. In that case, the High Court had taken the hypertechnical view that Jai Jai Ram Manohar Lal beino "a non-G existing person" the Trial Court could not allow an amendment which converted non-existing person into "peri•0n" in the eye of law so that the suit may not be barred by time. This Court while reverSTng this hypertechnical view observed (at p. 1269) :

"Rules of procedure are intended to be handmaie to the administration of justice. party cannot be re'11sed just relief merely because of some m'sta.ke, negligence, in-advertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of partv, un-

(1) A.l.R. 1969 S.C. 1267.

less it is satisfied that the party applying was acting ma/a fide, or that by his blunder. he had caused injury to his opponent which may not be recompensed 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 in-justice to the other side.

Purushottam Umedbhai & Co. v. M/s. Manila/ & Sons([1]), was case of partnership firm where this Conrt pointed out that Section 4 of the Partnership Act uses the term "firm" or the "firm name" as compendious description of all the partners collectively". Speaking of the provisions of Order 30 Civil Procedure Code this Court said there (at p. 991) :

Speaking

"The introduction of this provision in the Code was an enabling one which permitted partners constituting firm to sue or be sued in the name of the firm. This enabling provision, however, accorded no such facility or privilege to partners constituting firm doin$ business outside India. The existence of the provisions of 0. XXX in the Code does not mean that plaint filed in the name of firm doing busine>S outside India is not suit in fact by the partners of that firm individually".

We think that the view expressed by Narula C.J., in Mohan Singh v. Kanshi Ram('), which was dissented from by the Division Bench. of the High Court is correct. In that case, the learned Judge had rightly followed the principles laid down by this Court in Jai Jai Ram Manohar Lui (supra) and had also agreed with the view taken in lppili Satyanarayana v. The Amada/avalasa Cooperative Agricultural and Industrial Society Ltd. ([3]), where it held that the defendant was not prejudiced by the amendment of the description at all.

In the case before us also, the suit having been instituted by one of the partners of dissolved firm the mere specification of the capa-city in which the suit was filed could not change the character of the suit or the case. It made no difference to the rest of the pleadings or to the cause of action. Indeed, the amendment only sought to give notice to the defendant of facts which the plaintiff would and could have tried to prove in any case. This notice was being given, out of abundant caution, so that no technical objection may be taken that what was sought to be proved was outside the pleadings.We also agree with the view taken by the Nagpur High Court in Agarwal Jorawarmal & Anr. v. Kasam & Anr.([4]), where Vivian Bose, J., said (at p. 315)

(1) (1961] (ll S.C.R. 982. (2) 1976 C.Ll. (Civil) 135. (3) A.I~-1975 A.P. 22. (4) A.l.R. 19 Na;pu· 315.

"It is argued on behalf of the defendants that 0. 30, R.l. Civil P.C. indicates that suit can be filed in the name of the firm by some of the partners only if the partnership is existing at the date of the filing of the suit. The argu-ment has no force in view of the finding that the firm was not dissolved by reason of the insolvency of one of its part-ners. But even if it has been dissolved, the effect of dis-solution is not to render the firm non-exjstent. It continues to exist for all purposes necessary for its winuing up. One of these is of course the recovery of moneys due to it ·by suit or otherwise".

We think that the amendment sought does not alter the cause o [ action. It only brings out correctly the capacity of the plaintiff suing. It does not change the identity of the plaintiff who remains the same.

The result is that we allow this appeal and set aside the order; of the High Court and the Trial Court. We allow the amendment application and send back the case to the Trial Court. We direct that the Trial Court will now permit the defendant to file such further ob-jections, if any, as the defendant may wish to file within 14 days or :D the receipt of the record by the Trial Court. It will then proceed v' decide the case in accordance with law. Costs to abide the results of the litigation.

Appeal allowea.