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614

GANESH TRADING CO.

v.

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 a suit through one of its partners, for

recovery of Rs. 68,000 /-due under a 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 a new time barred

cause Of action.

Allowing the appeal the ~ourt,

HELD : In a suit institut.ed 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 btJt this does

not, by itself, necessarily constitute a 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.

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GANESH TRADING CO. V. MOJI RAM (Beg, C.J.) 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

-0f 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 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 a state­

ment 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

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 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

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 a 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 a 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 a party which must. no doubt pay costs for the inconvenience

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616 SUPREME COURT REPORTS [1978] 2 S.C.R.-

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 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

fo­

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 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 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 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 a 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 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 Mis. Ganesh Trading

Co., Karna!, 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-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 a failure to mention that the plaintiff firm,

Ganesh Trading Co. Kamal, had been actually dissolved on 15th July

1973, on which date a deed of dissolution of the firm was execute~;

_,

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GANESH TRADING CO. v. MOJI RAM (Beg, C.J.) 6 l 7

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 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 pr~yed

for, a 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 a 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 a declaration of

bis 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 dec­

laratory decree in such a case, the appellant had sou;!1t 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 bim on proper accounting. By a majority, the view expressed

by this Court was th(lt 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

particttlarly 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(

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.

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618

SUPREME COURT REPORTS [1978] 2 S.IC.R.

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 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 im­

material 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

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 a reasonable view to

take. No amendment will be allowed to ;ntroduce 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. 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 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 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

existing person" the Trial Court could not allow an amendment which

converted a non-existing person into a "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 a handmaie to

the administration of justice. A 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 a partv,

un-

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

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GANESH TRAIJJNG CO. V. MOJI RAM (Beg, C.J.) 61 g.

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 a

case of a partnership

firm where this Conrt 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

doin$ business outside India.

The existence of the provisions of 0. XXX in the Code does

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not mean that a plaint filed in the name of a firm doing D

busine>S 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('), 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 E

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 a dissolved

firm the mere specification of the

capa-F

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. G

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.

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620 SUPREME COURT REPORTS [1978] 2 S.C.R

"It is argued on behalf of the defendants that 0. 30,

R.l. 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 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

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.

M.R. Appeal allowea.

1146 SCI/77-2500-12-7-78-GIPI'.

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