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M/S. GANESH TRADING CO. V. MOJI RAM AIR 1978 SC 484 (M.H. BEG, C.J.)

M/S. GANESH TRADING CO. V. MOJI RAM AIR 1978 SC 484 (M.H. BEG, C.J.)

 

FACTS

  • The appellant filed a suit for recovery of money based on a promissory note, through the partner of the firm. The respondent denied the claims made in the plaint and asserted that the suit was unmaintainable since the firm was unregistered.
  • The plaintiff filed an amendment application stating that it inadvertently omitted a material fact that the firm dissolved before the institution of the suit.
  • The trial court rejected the amendment application on the ground that it amounted to introducing a new cause of action. The HC dismissed the revision application observing that “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 amended 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.”
  • Hence this appeal.

 

ISSUE

  • Whether the amendment sought to alter the cause of action that is not already averred.

 

HELD

The appeal was allowed and the orders of HC and the trial court were set aside. The suit was sent back to the trial court to adjudicate.

  • Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Pleadings make each side aware of what the other party has got. This enables the Court 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.
  • Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them, subject to: 1) costs and 2) giving all concerned parties necessary opportunities to meet exact situations resulting from amendments.
  • Shortcomings of insufficiently setting out the case can be removed by appropriate steps by paying costs, among other things. The error can be rectified so long as correcting them does not unjustifiably injure rights accrued to the other party. 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.
  • Courts will refuse to permit an amendment which alters the cause of action or sets out a new or inconsistent cause of action or if it amounts to depriving the opposite party of any right which may have accrued in its favour due to lapse of time.
  • Mere specification of the capacity in which the suit was filed could not change the character of the suit or the case since it made no difference to the remaining pleadings or to the cause of action. 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.
  • In Agarwal Jorawarmal v Kasam (AIR 1937 Nag. 314) it was held that the effect of dissolution of a firm cannot render the firm non-existent and it continues to exist for all purposes necessary for its winding up. One of those purposes could be the recovery of money due to it.
  • The amendment sought does not alter the cause of action but only brings out correctly the capacity in which the plaintiff is suing. It does not change the identity of the plaintiff.

 

COMMENTARY

Too technical a construction of sections which leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against, provided that justice is done to both the sides. A "hypertechnical view" should not be adopted by the court in interpreting procedural laws.

Object of pleadings – "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 parties, and to prevent deviations from the course which litigation on particular causes of action must take