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
section C Manchanda section 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 so Jai Jai Ram commenced an action in the Court of the Subordinate Judge Nanital for a decree for Rs 1013912 being the value of timber supplied to the defendant the National Building Mate 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 656863
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 vs Messrs Manilal and Sons1 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  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 vs Babulal Kanalal Taliwala1 Beaumont CJ 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 case1 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 Sup CI69 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 CP 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 case1
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 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 section 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  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 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
GC Appeal allowed


Summary:
Manoharlal so 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 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 MS Manilal and Sons   explained and applied
Amulakchand Mewaram  Ors
vs Babulal Kanalal Taliwala  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 iiiThe 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