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PETITIONER: GANESH TRADING CO.

       Vs.

RESPONDENT: MOJI RAM

DATE OF JUDGMENT25/01/1978

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) DESAI, D.A.

CITATION:  1978 AIR  484            1978 SCR  (2) 614  1978 SCC  (2)   9  CITATOR INFO :  R          1983 SC  43  (5)  RF         1983 SC 462  (3)

ACT: Civil   Procedure  Code,  Order  6  Rule  17--Amendment   of pleadings,  when permissible--"New cause of action"  whether constituted by statement of inadvertently omitted  essential fact.

HEADNOTE: The appellant-plaintiff firm had filed a suit through one of its  partners,  for  recovery of Rs. 68,000/-  due  under  a promissory note.  After the written statement had been  duly filed,  an amendment 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 allow the amendment  on  the  ground  that  it  would  amount  to  the introduction of a new time barred cause of action. Allowing the appeal the Court, HELD  :  In a suit instituted by one of the  partners  of  a 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 but this does not, by itself,  necessarily constitute  a new cause of action if the plaint is  amended. [619] F, 618 A] 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 injustice to  the other side subject to conditions such as payment  of costs. [619 A-B] Jai  Jai  Ram  Manohar Lal  v.  National  Building  Material Supply,  Gurgaon, 1970(1) S.C.R. 22-A.I.R. 1969  S.C.  1267, followed. Charan  Das  v. Amir Khan, 47 I.A. 2.55; L. J. Leach  &  Co. Ltd. v. Jardine Skinner & Co., 1957 S.C.R. 438, applied. Mohan  Singh  v.  Kanshi Ram, 1976 C.L.J.  (Civil)  p.  135, Ippili   Satyanarayana  v.  The  Amadalavalasa   Cooperative Agricultural  and Industrial Society Ltd., A.I.R. 1975  A.P.

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22,  Agarwal Jorawarmal & Anr. v. Karam & Anr.   A.I.R.  19, Nagpur  31;  A.  K.  Gupta & Sons  Ltd.  v.  Damodar  Valley Corporation, A.I.R. 1967 S.C. 96; and Purshottam Umedbhai  & Co. v. M/s.  Manilal and Sons, 1961 (1) 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 may be  met, to  enable  Courts  to determine what  is  really  at  issue between  the  parties,  and to prevent  deviation  from  the course which litigation on particular causes Must take. [615 B-C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : 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 O. P. Verma or the Appellant. M.B. Lal for the Respondent. 615 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  a general rule, with orders of an interlocutory  nature, such as one on an application for the amendment of a plaint, this  Court  feels compelled, in order  to  promote  uniform standards   and  views  on  questions  basic  for  a   sound administration  of  justice, and, in order to  prevent  very obvious  failures  of justice, to interfere even in  such  a matter in a very exceptional case such as the one now before us seems to us to be. Procedural law is intended to facilitate and not to obstruct the  course of substantive justice.  Provisions relating  to pleading  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. Order 6, rule 2 Civil Procedure Code says:               "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, and shall, when  necessary,               be    divided   into   paragraphs,    numbered               consecutively.  Dates, sums and numbers  shall               be expressed in figures". Order 6, rule 4 indicates cases in which particulars of its pleading  must be set out by a party.  And, order 6, rule  6 requires  only  such conditions precedent to  be  distinctly specified  in a pleading as a 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 and   better  particulars  of  any  matter  stated  in   any pleading...... as the Court may order, and "upon such terms, as ’to costs and otherwise, as may be just".  Order 6,  rule 7,  contains a prohibition against departure of  proof  from the  pleadings  except  by way of  amendment  of  pleadings. After some provisions relating to special cases and  circum-

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stances,  and 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               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". It is clear from the foregoing summary of the main rules  of pleadings  that provisions for the amendment  of  pleadings, subject to such terms as to costs and giving of all  parties concerned  necessary opportunities to meet exact  situations resulting  from amendments, are intended for  promoting  the ends of justice and not for defeating them.  Even if a party or  its  counsel  is inefficient in  setting  out  its  case initially the shortcoming can certainly be removed generally by  appropriate steps taken by a party which must  no  doubt pay costs for the inconvenience 616 or expense caused to the other side from its omissions.  The error  is  not  incapable  of being  rectified  so  long  as remedial steps do not unjustifiably injure rights accrued. It is true that, if a 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 to the substitution  of a  new plaint or a 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  a  suit  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, constitute a new  cause of  action.  A 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 a new  cause  of  action which, cured’ of its short-comings, has really become a 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 curable if the cause  of action sought to be brought out was not ab  initio completely  absent.   Even very defective pleadings  may  be permitted to be cured. so as to constitute a cause of action where there was none, provided necessary conditions, such as payment  of either any additional 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 a 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 M/s.   Ganesh Trading  Co.  ’ Karnal, had filed a suit "through  Shri  Jai Parkash",  a  partner of that firm, based  on  a  promissory note, dated 25th August 1970, for recovery of Rs.  68,000/-. The  non-payment 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  1974, 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

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section 69 of the Indian Partnership Act. On  31st  August  1974, the  plaintiff  filed  an  amendment application  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  exmained there  that the omission consisted of a failure  to  mention that the plaintiff firm, Ganesh Trading Co. Karnal, had been actually  dissolved on 15th July 1973, on which date a  deed of dissolution of the firm was executed. 617 The  Trial Court had refused to allow the amendment  by  its order  dated 8th April 1975, on the ground that it  amounted to the introduction of a new cause of action. On  a Revision application before the High Court,  the  High Court observed :               "The  suit originally instituted was filed  on               behalf  of a firm through one of the  partners               in  the amendment prayed for, a new  claim  is               being  sought to be laid on the basis  or  new               facts". It 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               M/s.  Ganesh Trading Company, Karnal,  through               Shri  Jai  Parkash  son  of  Shri  Hari   Ram,               resident of Railway Road, Karnal, to dissolved               firm,  through  Shri Jai Parkash son  of  Shri               Hari Ram, resident 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 remaining 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 amendment plaint, for  which               new   basis  has  been  given   alleging   the               dissolution  of  the  partnership  on  a  date               before the suit was filed in the Court". We  are  unable to share the view taken by the  High  Court. The  High  Court had relied on A. K. Gupta &  Sons  Ltd.  v. Damodar  Valley Corporation.(1) In that case  the  plaintiff had sought a declaration of his rights under the terms of  a 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  a mere  declaratory decree in such a case, the appellant  had sought  leave,  by filing an amendment  application  in  its second appeal before the High Court seeking to add a  relief to recover such monies as may be found due to him on  proper accounting.  By a majority, the view expressed by this Court was that the amendment should be allowed although the  Court affirmed the principle that, as a rule, a party should not be allowed, by means of an amendment, to set up a new  cause of action particularly when a 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),  and, L. J. Leach &  Co.  Ltd.  v.  Jardine Skinner  & Co.(3), to hold that "a different  or  additional

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approach to the same (1)  A.T.R. 1967 S.C. 96. (2)  47 Ind.  App. 255. (3)  [1957] S.C.R. 438. 618 facts"  could 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 shortcoming.  It also said that no question  of limitation,  strictly speaking, arose in such cases  because what was sought to be brought in was merely a  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  a               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.immaterial  allegation  by  amendment.               That  expression for the present purpose  only               means,  a  new  claim  made  on  a  new  basis               constituted  by  new facts.  Such a  view  was               taken   in   Robinson   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. Sillis and Co. Ltd., 1962-1 All  ER               303.  This also means to us to be a reasonable               view to take.  No amendment will be allowed to               Introduce a 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.  Gurgaon (1), but has failed  to follow the principle which was clearly laid  down in  that  case  by this Court.   There,  the  plaintiff  had instituted  a  suit in the name of Jai Jai Ram  Manohar  Lal which  was  the  name in which the business of  a  firm  was carried  on.  Later on, the plaintiff had applied  to  amend the  plaint,  so that the description may  be  altered  into "Manohar  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 Manobar  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  beinag a nonexisting person" the  Trial  Court could not allow an amendment which converted a  non-existing person  into a "person" in the eye of law so that  the  suit may not be barred by time.  This Court while reversing  this hypertechnical view observed ( at p. 1269) :               "Rules  of  procedure  are intended  to  be  a               handmaid to the administration of justice.   A               party  cannot  be refused just  relief  merely               because  of  some  mistake,  negligence,   in-               advertence or even infraction of the rules  of               procedure.   The Court always gives  leave  to

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             amend the pleading of a party, un-               (1)   A.I.R. 1969 S.C. 1267.               619               less  it is satisfied that the party  applying               was acting mala 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 injustice to               the other side. Purushottam Umedbhai & Co. v. M/s.  Manilal & Sons(1), was a case of a partnership firm where this Court pointed out that Section 4 of the Partnership Act uses the term "firm" or the "firm name" as a compendious description of all the partners collectively".  Speaking of the provisions of Order 30 Civil Procedure Code this Court said there (at p. 991)               "The  introduction  of this provision  in  the               Code  was  an  enabling  one  which  permitted               partners constituting a 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 a  firm               doing  business outside India.  The  existence               of  the provisions of O. XXX in the Code  does               not mean that a plaint filed in the name of  a               firm  doing  business outside India is  not  a               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(2), 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 Lal  (supra)  and had also agreed with the view taken in Ippili  Satyanarayana v. The Amadalavalasa 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  a  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.   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  Jorawamal  & Anr. v. Kasam  &  Anr.(4),  where Vivian Bose, J., said (at p. 315) (1)  [1961] (1) S. C. R. 982. (2)  1976 C.L.J. (Civil) 135. (3)  A.T.R. 1975 A.P. 22. (4) A.I.R. 19 Nagpur 315. 620               "It is argued on behalf of the defendants that               O.  30, R.I. Civil P.C. indicates that a  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 argument has no force in  view  of               the finding that the firm was not dissolved by

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             reason of. the insolvency of one of its  part-               ners.  But even if it has been dissolved,  the               effect  of- dissolution is not to  render  the               firm non-existent.  It continues to exist  for               all  purposes  necessary for its  winding  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 of 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 orders 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 objections, if any,  as  the defendant may wish to file within 14 days of the receipt  of the  record  by the Trial Court.  It will  then  proceed  to decide the case in accordance with law.  Costs to abide  the results of the litigation. M.R.                                       Appeal allowed. 621