http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: JAI JAI RAM MANOHAR LAL

       Vs.

RESPONDENT: NATIONAL BUILDING MATERIAL SUPPLY, GURGAON

DATE OF JUDGMENT: 17/03/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR 1267            1970 SCR  (1)  22  1969 SCC  (1) 869  CITATOR INFO :  R          1973 SC 484  (11,13)  RF         1978 SC1329  (28)

ACT: Practice  and  Procedure-Amendment of plaint-Should  not  be refused  on technical grounds-Amended plaint when deemed  to be  filed-Effect on limitation-Costs when party persists  in plea without merit.

HEADNOTE: Manoharlal s/o Jai Jai Ram commenced an action in the  Court of  the Subordinate Judge, for valuer of timber supplied  to the  defendant.   The action was instituted in the  name  of ’Jai  Jai Ram Manohar Lal’ which was the name in  which  the business was carried on.  The plaintiff signed and  verified the  plaint  as  ’Jai Jai Ram Manohar Lal,  by  the  pen  of Manohar  lal.’  Later he applied to the Court for  leave  to amend  the plaint.  In the application he averred  that  the business  carried on under the name Jai Jai Ram Manohar  Lal was  a joint Hindu family business and the name was  not  an assumed or fictitious one as it contained his-name and  that of  his  father.  On these averments he prayed  that  he  be allowed to describe him-’ self in the cause title as Manohar Lal proprietor of Jai Jai Ram Manohar Lal and in paragraph 1 to  state that he carried on the business in timber  in  the name  of  ’Jai Jai Ram Manohar Lal’.   The  application  was ’allowed  by  the trial Judge.  The defendant then  filed  a supplementary  written  statement  raising  two   additional contentions : (1) that the plaintiff was not the sole  owner of  the business and that his other brothers were  also  the owners  of  the business; and (2) that  the  amendment  took effect  from the’ date on which it was made and if  so,  the suit  was barred by limitation.  The trial  court  rejecting these  contentions  decreed  the suit.  The  High  Court  in appeal took the view that the action having been  instituted in the name of a nonexisting person’, and Manohar Lal having failed  to  aver in the application for amendment  that  the action  was instituted in the name of ’Jai Jai  Ram  Manohar Lal’  on  account of a bona fide mistake  or  omission,  the Subordinate  Judge was incompetent to grant leave  to  amend the plaint.  The High Court further held that the  amendment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

allowed by the trial Court took effect only from the date of amendment, and the action was barred by limitation.  Against the  judgment  of the High Court the plaintiff,  by  special leave, appealed to this Court. HELD  : (i) The order passed by the High Court could not  be sustained.   Rules  of  procedure are,  intended  to,  be  a handmaid  to the administration of justice.  A party  cannot be   refused  relief  merely-  because  of   same   mistake, negligence, inadvertence or even infraction of the rules  of procedure.   The  Court  -always gives leave  to  amend  the pleading  of a party, unless 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  com- pensated  for  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. [25 C-E] Purshottam Umedbhai & Co. V. M/S.  Manilal and Sons,  [1961] 1 S.C.R. 982, explained and applied. Amulakchand  Mewaram & Ors. v. Babulal Kanalal Taliwala,  35 Bom.  L.R. 569, applied. 23 In  the present case the plaintiff was carrying on  business as  commission  agent in the name of ’Jai Jai  Ram  Maryohar Lal’.  The plaintiff was competent to sue in his own name as manager of the Hindu undivided family to which the  business belonged; he claimed to have filed the suit on behalf of the family  in the business name.  The observations made by  the High Court that the application for amendment of the  plaint could not be granted, because there was no averment  therein that  the  misdescription  was ’On account of  a  bona  fide mistake,  and on that account the suit must fail, could  not be accepted.  There is no rule that unless in an application for  ’amendment of the plaint it is expressly  averred  that the error, -omission or misdescription is due to a bona fide mistake  the court has no power to grant leave to amend  the plaint.   The power to grant amendment of the  pleadings  is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. [57 B-D] (ii) Since  the name in which the action was instituted  was merely  a  misdescription  of  the  original  plaintiff,  no question  of limitation arose and the plaint must be  deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted. [27 E] (iii)The defendant raised and persisted in a plea which  had no  merit even after the amendment was allowed by the  trial court.   In the circumstances he must pay the costs in  this Court and the High Court. [27 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 697 of 1966. Appeal  by special leave from the judgment and  order  dated November 9, 1964 of the Allahabad High Court in First Appeal No. 257 of 1953. S.   C.  Manchanda,  S. k. Mehta and K. L.  Mehta,  for  the appellant. Bishan Narain and Harbans Singh, for the respondent. The Judgment of the Court was delivered by Shah,  J.  On March 11, 1950, Manohar Lal s/o  Jai  Jai  Ram commenced  an action in the Court of the Subordinate  Judge, Nanital, for a decree for Rs. 10,139/12/- being the value of timber supplied to the defendant-the National Building Mate-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

rial Supply, Gurgaon.  The action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business   was  carried  on.   The  plaintiff  Manohar   Lal subscribed  his signature at the foot of the plaint as  "Jai Jai  Ram  Manohar Lal, by the pen of Manohar Lal",  and  the plaint  was also similarly verified.  The defendant  by  its written  statement  contended  that  the  plaintiff  was  an unregistered firm and on that account incompetent to sue. On  July 18, 1952, the plaintiff applied for leave to  amend the  plaint.  Manohar Lal stated that "the business name  of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal  the owner and proprietor is clearly shown  and  -named. It is a 24 joint  Hindu family business and the defendant and all  knew it  that  Manohar, Lai whose name is there  along  with  the father’s  name is the proprietor of it.  The name is not  an assumed   or  fictitious  one".   The  plaintiff  on   those averments applied for leave to describe himself in the cause title as "Manohar Lal proprietor of Jai Jai Ram Manohar Lal" and in paragraph 1 to state that he carried on the  business in  timber  in  the  name  of  Jai  Jai  Ram  Manohar   Lal. Apparently  no  reply was filed to this application  by  the defendant.  The Subordinate Judge granted leave to amend the plaint.   He observed that there was no doubt that the  real plaintiff  was Manohar Lal himself, that it was Manohar  Lal who intended to file and did in fact Me the action, and that the "amendment was intended to bring what in effect had been done in conformity with what in fact should have been done". The  defendant then filed a supplementary written  statement raising two additional contentions-(1) that Manohar Lal  was not  the  sole  owner of the business  and  that  his  other brothers were also the owners of the business; and (2)  that in  any event the amendment became effective from  July  18, 1952, and on that account the suit was barred by the law  of limitation. The  Trial  Judge  decreed  the  claim  for  Rs.  6,568/6/3. Against  that  decree an appeal was preferred  to  the  High Court  of Allahabad.  The High Court being of the view  that the  action  was instituted in the name of  a  "non-existing person"  and  Manohar  Lal  having failed  to  aver  in  the application for amendment that the action was instituted  in the  name  of "Jai Jai Ram Manohar Lal" on account  of  some bona  fide  mistake or omission, the Subordinate  Judge  was incompetent to grant leave to amend of the plaint.  The High Court after making an extensive quotation from the  judgment of this Court in purushottam Umedbhai and Company v. Messrs. Manilal  and Sons(1) observed that the action could  not  be instituted by the plaintiff in the business name; it  should have  been instituted in the name of the Karta of the  Hindu undivided family in his representative capacity or else ’all the  members  of the joint family must join  as  plaintiffs. The Court then observed :               "The suit instituted by the joint Hindu family               business  in the name of an  assumed  business               title  was  a suit by a person,  who  did  not               exist  and was, therefore, a  nullity.   Hence               there could be no amendment of the description               of  such a plaintiff who did not exist in  the               eye  of law.  The court below was  in  obvious               error  in thinking otherwise and allowing  the               name of Manohar Lal to be added as  proprietor               of the original plaintiff Jai Jai Ram  Manohar               Lal, which was neither               (1)   [1961] 1 S. C. R. 982.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             25               a  legal  entity nor an  existing  person  who               could have validly instituted the suit." The High Court was also of the opinion that the substitution of  the  name  of  Manohar Lal as  a  plaintiff  during  the pendency  of the action took effect from July 18, 1952,  and the action must be deemed to be instituted on that date  the amendment  could not take effect retrospectively and on  the date  of the amendment the action was barred by the  law  of limitation.   The plaintiff has appealed to this Court  with special leave. The  order  passed by the High Court  cannot  be  sustained. 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, inadvertence  or even infraction of the rules of  procedure. The  Court  always gives leave to amend the  pleading  of  a party,  unless 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 compensed for by  an order of costs.  However negligent or careless may have been the  first omission, and, however late the  proposed  amend- ment, the amendment may be allowed if it can be made without injustice  to  the other side.  In Amulakchand  Mewaram  and others  v. Babulal Kanalal Taliwala(1), Beaumont,  C.J.,  in delivering the judgment of the Bombay High Court set out the principles   applicable  to  cases  like  the  present   and observed:               "......  the question whether there should  be               an amendment or not really turns upon  whether               the  name in which the suit is brought in  the               name of a non-existent person or whether it is               merely  a misdescription of existing  persons.               If  the  former  is the case, the  suit  is  a               nullity and no amendment can cure it.  If  the               latter  is the case, prima facie, there  ought               to  be an amendment because the general  rule,               subject  no  doubt to certain  exceptions,  is               that   the  Court  should  always   allow   an               amendment where any loss to the opposing party               can be compensated for by costs." In  Amulakchand Mewaram’s case(1) a Hindu  undivided  family sued  in  its business name.  It was not appreciated  at  an early  stage of the suit that in fact the firm name was  not of a partnership, but was the name of a joint Hindu  family. An  objection was raised by the defendant that the  suit  as filed  was not maintainable.  An application to  amend,  the plaint,  by substituting the names of the three  members  of the  joint  family  for  the name  of  the  family  firm  as plaintiffs, was rejected by the Court (1) 35 Bom.  L. R. 569. Sup CI/69-3 26 of First Instance.  In appeal the High Court observed that a suit  brought in the name of a firm in a case not within  0. 30  C.P.  Code  being in fact a case  of  misdescription  of existing persons, leave to amend ought to have been given. This Court considered a somewhat similar case in Purushottam Umedbhai’s  case(1).   A firm carrying on  business  outside India  filed  a suit in the firm name in the High  Court  of Calcutta  for  a  decree  for  compensation  for  breach  of contract.   The plaintiff then applied for amendment of  the plaint  by  describing  the names of all  the  partners  and striking out the name of the firm as a mere  misdescription. The application for amendment was rejected on the view  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

the  original plaint was no plaint in law and it was  not  a case  of  misnomer or misdescription, but a case of  a  non- existent  firm or a non-existent person suing.   In  appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure  did not  permit  a suit to be brought in the  firm  name  should properly  be  considered  a  case  of  description  of   the individual   partners  of  the  business  and  as   such   a misdescription, which in law can be corrected and should not be  considered to amount to a description of a  non-existent person.   Against the order of he High Court an  appeal  was preferred to this Court.  This Court observed (at p. 994) :               "Since, however, a firm is not a legal  entity               the  privilege of suing in the name of a  firm               is  permissible only to those persons who,  as               partners,  are doing business in India.   Such               privilege  is not extended to persons who  are               doing business as partners outside India.   In               their  case  they still have to sue  in  their               individual  names.   If, however,  under  some               misapprehension,  persons  doing  business  as               partners outside India do file a plaint in the               name  of  their firm  they  are  misdescribing               themselves, as the suit instituted is by them,               they  being known collectively as a firm.   It               seems,  therefore,  that a plaint filed  in  a               court  in  India in the name of a  firm  doing               business  outside  India is not  by  itself  a               nullity.   It is a plaint by all the  partners               of  the firm with a defective  description  of               themselves  for  the purpose of  the  Code  of               Civil  Procedure.  in these  circumstances,  a               civil court could permit, under the provisions               of  s. 153 of the Code (or possibly  under  0.               VI,  r.  17, about which we say  nothing),  an               amendment  of  the plaint to enable  a  proper               description of the plaintiffs to appear in  it               in  order to assist the Court  in  determining               the   real  question  or  issue  between   the               parties." (1)  [1961] 1 S. C. R. 982. 27 These cases do no more than illustrate the well-settled rule that all amendments should be permitted as may be  necessary for  the  purpose  of  determining  the  real  question   in controversy  between the parties, unless by  permitting  the amendment injustice may result to the other side. In the present case, the plaintiff was carrying on  business as commission agent in the name of "Jai Jai Ram Manohar Lal. The  plaintiff  was  competent to sue in  his  own  name  as Manager of the Hindu undivided family to which the  business belonged;  he  says he sued on behalf of the family  in  the business  ’name.   The observations made by the  High  Court that  the application for amendment of the plaint could  not be  granted, because there was no averment therein that  the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted.  In our view,  there  is no rule that unless in an  application  for amendment  of  the plaint it is expressly averred  that  the error,  omission  or misdescription is due to  a  bona  fide mistake, the Court has no power to grant leave to amend  the plaint.   The power to grant amendment of the  pleadings  is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. Since the name in which the action was instituted was merely

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

a  misdescription of the original plaintiff, no question  of limitation arises: the plaint must be deemed on amendment to have  been instituted in the name of the real plaintiff,  on the date on which it was originally instituted. In our view, the order passed by the Trial Court in granting the  amendment was clearly right, and the High Court was  in error  in  dismissing  the suit  on  a  technicality  wholly unrelated  to  the merits of the dispute.   Since  all  this delay  has  taken  place and costs have  been  thrown  away, because  the defendant raised and persisted in a plea  which had  no  merit even after the amendment was allowed  by  the Trial  Court,  he must pay the costs in this Court  and  the High Court.  The appeal is allowed and the decree passed  by the High Court is set aside.  It appears that the High Court has  not dealt with the appeal on the merits.  The  proceed- ings  will  stand remanded to the High  Court  for  disposal according  to law on the merits of the dispute  between  the parties. G.C.                   Appeal allowed. 28