Sunday, 7 April 2019

Supreme Court: Courts should allow amendment of pleading if there is inadvertent mistake in drafting of plaint

 The memo of parties is thus clearly inadvertent mistake on the
part of the counsel who drafted the plaint. Such inadvertent mistake
cannot be refused to be corrected when the mistake is apparent from
the reading of the plaint. The Rules of Procedure are handmaid of justice
and cannot defeat the substantive rights of the parties. It is well settled
that amendment in the pleadings cannot be refused merely
because of some mistake, negligence, inadvertence or even
infraction of the Rules of Procedure. The Court always gives leave to
amend the pleadings even if a party is negligent or careless as 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. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2431 OF 2019
(Arising out of S.L.P (C) No. 2792 of 2019)

Varun Pahwa  Vs Mrs. Renu Chaudhary 

Hemant Gupta, J.
Dated:March 1, 2019

Leave granted.
2. The Order dated 20.08.2018 passed by the High Court of Delhi is
subject matter of challenge in the present appeal. By the aforesaid
order, a petition against an order passed by the learned trial court on
23.01.2018 seeking permission to amend the plaint was dismissed.

3. The appellant as Director of Siddharth Garments Pvt. Ltd. filed a
suit for recovery of Rs. 25,00,000/- along with pendente lite and future
interest on or about 28.05.2016. The Plaintiff has claimed the said
amount advanced as loan of Rs. 25,00,000/- remitted to the defendant
through RTGS on 16.06.2013 on HDFC Bank, Delhi. It is also averred that
Plaintiff has given Special Power of Attorney to Shri Navneet Gupta and
that a copy of the Power of Attorney is enclosed.
4. The defendant raised one of the preliminary objections in the
written statement that suit has not been filed by the Plaintiff and even
the alleged authorised representative has not filed any document
showing that he has been authorised by the above-named Plaintiff. The
Special Power of Attorney is neither valid nor admissible.
5. It was on 29.11.2016, Navneet Gupta appeared in Court as power
of attorney of the Plaintiff to examine himself as PW1. It was at that
stage; an order was passed by the learned trial court to furnish address
of the Plaintiff and why the Plaintiff should be examined through an
attorney when the Plaintiff is a resident of Delhi. It is thereafter, the
appellant filed an application for amendment of the plaint on the ground
that the counsel had inadvertently made the title of the suit wrongly as
the loan was advanced through the Company, therefore, the suit was to
be in the name of the Company. Therefore, the Plaintiff sought to
substitute para 1 and para 2 of the plaint with the following paras which
read as under:-
2
“1. That the Plaintiff is a Private Limited
Company having its registered office at: I-VA
(property bearing No. XII), Jawahar Nagar, Delhi
2. That the present plaint is filed through the
authorised representative of the Plaintiff namely
Sh. Navneet Gupta, R/o. 322, Kohat Enclave, Pitam
Pura, Delhi who has been authorised vide board
resolution dated 12.05.2016 to sign, verify and
execute all documents, papers, complaints,
applications, plaint, written statement, Counter
claim, affidavits, replies revisions, etc. and to
institute, pursue and depose in all legal
proceedings and court cases on behalf of Siddharth
Garments Pvt. Ltd against Mrs. Renu Chaudhary
who was given the loan of Rs. 25 Lakhs.”
6. The trial court declined the amendment on the ground that the
application is an attempt to convert the suit filed by a private individual
into a suit filed by a Private Limited Company which is not permissible
as it completely changes the nature of the suit. It is the said order
which was not interfered with by the High Court.
7. We have heard learned counsel for the appellant as none had
appeared on behalf of the respondent.
8. The plaint is not properly drafted in as much as in the memo of
parties, the Plaintiff is described as Varun Pahwa through Director of
Siddharth Garments Pvt. Ltd. though it should have been Siddharth
Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of
mistake of the counsel, may be on account of lack of understanding as
to how a Private Limited Company is to sue in a suit for recovery of the
amount advanced.

9. The memo of parties is thus clearly inadvertent mistake on the
part of the counsel who drafted the plaint. Such inadvertent mistake
cannot be refused to be corrected when the mistake is apparent from
the reading of the plaint. The Rules of Procedure are handmaid of justice
and cannot defeat the substantive rights of the parties. It is well settled
that amendment in the pleadings cannot be refused merely
because of some mistake, negligence, inadvertence or even
infraction of the Rules of Procedure. The Court always gives leave to
amend the pleadings even if a party is negligent or careless as 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. In State of Maharashtra vs. Hindustan Construction
Company Limited1, this Court held as under:-
“17. Insofar as the Code of Civil Procedure, 1908 (for
short “CPC”) is concerned, Order 6 Rule 17 provides
for amendment of pleadings. It says that 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.
18. The matters relating to amendment of pleadings
have come up for consideration before the courts from
time to time. As far back as in 1884 in Clarapede &
Co. v. Commercial Union Assn.2 - an appeal that came
up before the Court of Appeal, Brett M.R. stated:
“... The rule of conduct of the court in such
a case is that, however negligent or
careless may have been the first
omission, and, however late the
proposed amendment, the amendment
1 (2010) 4 SCC 518
2 (1883) 32 WR 262 (CA)

should be allowed if it can be made
without injustice to the other side. There is
no injustice if the other side can be
compensated by costs; but, if
the amendment will put them into such a
position that they must be injured, it ought
not to be made….”
19. In Charan Das v. Amir Khan3 the Privy Council
exposited the legal position that although power of a
Court to amend the plaint in a suit should not as a rule
be exercised where the effect is to take away from the
defendant a legal right which has accrued to him by
lapse of time, yet there are cases in which that
consideration is outweighed by the special
circumstances of the case.
*** *** ***
22. In Jai Jai Ram Manohar Lal4 this Court was
concerned with a matter wherein amendment in the
plaint was refused on the ground that the amendment
could not take effect retrospectively and on the date of
the amendment the action was barred by the law of
limitation. It was held: (SCC p.871, para 5)
“5. …. 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 compensated 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.”
This Court further stated (Jai Jai Ram Manohar Lal case,
SCC p.873, para 7):
3 (1919-20) 47 IA 255
4 (1969) 1 SCC 869
5
“7. ...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.”
10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and
Another5, this Court held that procedural defects and irregularities
which are curable should not be allowed to defeat substantive rights or
to cause injustice. Procedure should never be made a tool to deny
justice or perpetuate injustice by any oppressive or punitive use. The
Court held as under:-
“17. Non-compliance with any procedural requirement
relating to a pleading, memorandum of appeal or
application or petition for relief should not entail
automatic dismissal or rejection, unless the relevant
statute or rule so mandates. Procedural defects and
irregularities which are curable should not be allowed to
defeat substantive rights or to cause injustice.
Procedure, a handmaiden to justice, should never be
made a tool to deny justice or perpetuate injustice, by
any oppressive or punitive use. The well-recognised
exceptions to this principle are:
(i) where the statute prescribing the procedure, also
prescribes specifically the consequence of noncompliance;
(ii) where the procedural defect is not rectified, even
after it is pointed out and due opportunity is given for
rectifying it;
(iii) where the non-compliance or violation is proved to
be deliberate or mischievous;
(iv) where the rectification of defect would affect the
case on merits or will affect the jurisdiction of the court;
(v) in case of memorandum of appeal, there is complete
absence of authority and the appeal is presented
without the knowledge, consent and authority of the
appellant.”
5 (2006) 1 SCC 75
6
11. Thus, we find that it was an inadvertent mistake in the plaint
which trial court should have allowed to be corrected so as to permit the
Private Limited Company to sue as Plaintiff as the original Plaintiff has
filed suit as Director of the said Private Limited Company. Therefore, the
order declining to correct the memo of parties cannot be said to be
justified in law.
12. Consequently, the orders passed by the High Court dated
20.08.2018 and by the trial court on 23.01.2018 are set-aside and the
application filed by the Plaintiff to amend the plaint is allowed with no
order as to costs.
The appeal is allowed.
……………………………………
………J.
(Dr. D. Y. Chandrachud)
………………………………………
…….J.
(Hemant Gupta)
New Delhi,
March 1, 2019

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