CR No.2709 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2709 of 2008 Date of decision: December 10, 2009 Northern Carriers Pvt. Ltd. …..PETITIONER Versus Parkar Industries and another …..RESPONDENTS CORAM: HON’BLE MR JUSTICE T.P.S.MANN PRESENT:Mr Rohit Ahuja, Advocate Mr M.S.Sachdev, Advocate T.P.S.MANN, J. Order passed by the trial Court on 28.11.2007 while declining his application for amendment of its plaint stands challenged by the plaintiff in the present revision filed under Article 227 of the Constitution of India. The plaintiff filed a suit against the defendants/respondents for recovery of Rs.1,25,383/-. In their written statement, the defendants took preliminary objection that defendant No.2 had got nothing to do with defendant No.1 CR No.2709 of 2008 -2- as neither he was its proprietor nor a partner. During the recording of defendants' evidence, defendant No.2 appeared as DW1 and in his cross-examination conducted on 10.5.2007, he deposed that his son Rajesh Kumar was proprietor of defendant No.1 since 5/6 years and he had not mentioned in his written statement that Rajesh Kumar was the proprietor. Realising that it had wrongly impleaded Subhash Sehdev defendant No.2 as proprietor/partner of defendant No.1, whereas from cross- examination of Subhash Sehdev DW1, it came to know that it was Rajesh Kumar, who was the proprietor of defendant No.1, the plaintiff filed the application for amendment of the plaint so as to add “or/Rajesh Kumar s/o Subhash Sehdev, 184, Dilbagh Nagar, Jalandhar 144002” in addition to the description of defendant No.1 in the heading of the plaint. The application was opposed by the defendants on the grounds that it was barred by time, the proprietorship concern was not legal entity and, therefore, the suit was not maintainable against Subhash Sehdev. The application having been filed after 8 years of institution of the suit was, therefore, not maintainable. Admittedly, while filing the written statement on CR No.2709 of 2008 -3- behalf of the defendants, Subhash Sehdev, defendant No.2 did not disclose that his son Rajesh Kumar was proprietor of defendant No.1. It was only stated that he himself had nothing to do with defendant No.1 as its proprietor or partner. However, during his cross-examination conducted on 10.5.2007, for the first time he disclosed that defendant No.1 was proprietorship of his son Rajesh Kumar. Under these circumstances, the application filed by the plaintiff under Order VI Rule 17 C.P.C for amending the plaint can not be said to have been filed after a delay. Moreover, where there is mere correction of misdescription of plaintiff or defendant and consequential corrections/amendment in the plaint without change of cause of action or taking of inconsistent plea, there is no question of limitation. Such an amendment can be allowed at any reasonable time and the plaint must be deemed to have been instituted on the date of its original institution. In this regard, the Court finds support from Om Parkash vs Guru Nanak Rice Mills, 2000 (2) RCR (Civil) 502, where it was held as under: “While allowing the plaintiff to amend the plaint, the learned trial Court had placed reliance on the CR No.2709 of 2008 -4- law laid down by their lordships of the Supreme Court in the case reported as AIR 1978 SC 484 in which it was held that where a suit for recovery of money due under a promissory note was filed by a firm through a partner, the amendment of the plaint on the ground that the partnership firm already stood dissolved on the date of filing the suit and the suit was instituted by one of the partners of a dissolved firm could not be refused. It was further held in the said authority that such an amendment would not alter the cause of action or the character of the suit nor it would change the identity of the plaintiff who remain the same and only the capacity of the plaintiff suing had been corrected. In my opinion, the law laid down in this authority would fully apply to the facts of the present case. In AIR 1969 SC 1267 (supra), it was held by their Lordships of the Supreme Court that since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises 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.” In Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, AIR 1969 S.C. 1267, it was held CR No.2709 of 2008 -5- that amendment of plaint cannot be refused on technical grounds. Leave to amend shall always be given unless the Court is satisfied that the party applying was acting malafide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. It was observed as follows: “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 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.” In Narinder Singh vs. The Food Corporation of India, 2002 (3) RCR (Civil) 420, prayer made by the plaintiff CR No.2709 of 2008 -6- for adding another defendant was allowed as the defendant already before the Court would not suffer any prejudice. The Court held as under: “However, in the present case the filing of the suit against the defendant-petitioner would be barred because the suit had already been filed against him and it is only adding the name of Devi Chand to show that subsequently Devi Chand was also engaged and paid much more than what have been paid to the defendant- petitioner. Therefore, no prejudice would be suffered by the defendant-petitioner if name of Devi Chand is allowed to be added by way of amendment.” In Mahboob Ullah vs. Jwala Prasad Kajriwal and another, AIR 1974 Allahabad 413, the Court held that the title of the suit cannot be treated as part of the plaint. Therefore, according to the respondent, the application filed by the plaintiff/petitioner for amendment under Order VI Rule 17 was not competent. However, as there was only a misdescription of defendant No.1, the correction could be sought under the aforementioned provision of law, as was permitted in the case of Om Parkash (supra). CR No.2709 of 2008 -7- In Ajit Singh vs. Jaswinder Kaur, 2009 (1) Civil Court Cases 354 (P & H), it was held that once the trial of the suit had commenced the amendment cannot be allowed unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of the trial. In the present case, the plaintiff was not aware of the fact that it was Rajesh Kumar, who was the proprietor of defendant No.1. In his written statement, defendant No.2 did not disclose that defendant No.1 was proprietorship of his son Rajesh Kumar. It was only when defendant No.2 was cross-examined that for the first time he told about his son Rajesh Kumar being proprietor of defendant No.1. Learned counsel for the respondents referred to M/s Ashok Transport Agency vs. Awadhesh Kumar and another, 1998 AIR SCW 4042 where the distinction between a partnership firm and a proprietory concern was explained and it was held that a suit by or against a proprietory concern is by or against the proprietor of the business. However, in the present case the plaintiff has sought addition of the name of Rajesh Kumar as either proprietor of defendant No.1 or as its partner CR No.2709 of 2008 -8- alongwith Subhash Sehdev. In M/s Paras Industries vs M/s Paras Special Machine Co. 2003 (3) Civil Court Cases 540 ( P & H), it was held that proprietorship firm may sue or be sued in business name than in the name of individual partners. However, in the present revision the proprietorship firm already stands impleaded as defendant No.1 and the controversy is only on the point as to whether Subhash Sehdev or Rajesh Kumar is its proprietor or it is a partnership concern with both of them as its partners. The judgment in Shiv Gopal Sah @ Shiv Gopal Shau vs Sita Ram Saraugi & Ors. 2007 (2) Apex Court Judgments 352 (SC) relied by learned counsel for the respondents is not applicable to the present case as reasons have been assigned by the plaintiff as to why it could not apply earlier for amendment. It was only when defendant No.2 deposed during his cross-examination that his son Rajesh Kumar was the proprietor of defendant No.1 that the plaintiff immediately applied for amendment. Similarly, the judgment of Hon'ble Supreme Court in K.Raheja Constructions Ltd. vs. Alliance Ministries & Ors, 1996 (1) Civil Court Cases 80 that CR No.2709 of 2008 -9- amendment cannot be allowed as it defeats valuable right of limitation as the amendment, once allowed relates back to the date of institution of the suit, is not applicable. In view of the above, the revision is allowed, impugned order is set aside and the application filed by the plaintiff/petitioner for amendment of plaint is accepted. December 10, 2009. (T.P.S.MANN) Pds. JUDGE Whether referred to the Reporters: Yes/No