IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3640 of 2009 Between: M/s. Yeturi Ramachandra Reddy Associates & Associate Companies rep. by its Director Y. Ramachandra Reddy and others .. Petitioners AND Vijender Kumar Kedia and others .. Respondents ORDER: The civil revision petition is directed against the order in I.A. No.205 of 2009 in O.S. No.14 of 1996 on the file of the Senior Civil Judge’s Court, Medak, dated 08-07-2009. The revision petitioners/plaintiffs filed I.A. No.205 of 2009 under Order VI Rule 17 read with Order XXX Rule 10 of the Code of Civil Procedure to amend the cause title to describe the 1st plaintiff as represented by the 2nd plaintiff. The 2nd plaintiff claimed to be the Proprietor of the 1st plaintiff and Chairman and Managing Director of plaintiffs 3 to 5. The suit is based on an agreement of sale said to have been entered into by the 1st plaintiff under the assumed trade name of the 2nd plaintiff, the specific performance of which is sought for. The 2nd plaintiff sought for appropriate amendment in the cause title of the suit as a person doing business under assumed trade name cannot sue in that name, but has to sue in his own name. The contesting respondents resisted the request contending that the proposed amendments are a ruse to get over the admissions made by P.W.1 in his evidence and the main suit was already posted for arguments, at which belated stage, the motivated amendments cannot be permitted. Nature and character of the subject transaction will be changed and the amendments will vitiate the defence taken by the respondents. Hence, they pleaded that the proposed change of the company into a proprietorship firm will change the nature of the suit and status of the parties and cannot be allowed. The trial Court in the impugned order referred to the vendee under the agreement of sale being M/s. Yeturi Ramachandra Reddy Associates & Associate Companies rep. by its Director Y. Ramachandra Reddy and also noted that the suit is at the stage of arguments after examining P.Ws.1 and 2 and D.W.1 and marking the documents. The trial Court referred to the contention that under Section 153 of the Code of Civil Procedure, the Court may amend at any time any defect or error in any proceeding in a suit for the purpose of determining the real question or issue raised by the proceeding and that the correction of misdescription of the 1st plaintiff without any fraudulent or mala fide motive can be allowed under that provision to bring the suit in tune with the provisions of Order XXX Rule 10 of the Code of Civil Procedure. Referring to the precedents where such misdescription was allowed to be corrected relied on by the petitioners to plead that the trial Court has wide power to permit such correction, which causes no prejudice to the defendants and which no way changes the subject matter of the claim of the plaintiffs, the trial Court felt that the plaintiffs kept quiet for 13 years and there were no subsequent events or change of circumstances for seeking an amendment. The proposed amendment by introducing a name different from that in whose favour the agreement was executed, will cause injustice to the defendants and demolish their defence, though they can file an additional written statement. The trial Court accordingly felt that there were no merits to permit the amendments and accordingly dismissed the petition without costs. The said order is under challenge in this revision contending that an amendment of this nature to correct a bona fide mistaken misdescription causes no prejudice to the respondents and only enables the Court to effectively and completely adjudicate the matter and settle all the issues between the parties. The suit for specific performance is not changed in its nature and only any defect in the institution of the suit will be cured without in any way touching the merits of the defence. Hence, the revision petitioners sought for reversal of the order under revision. Heard Sri K. Chidambaram, learned counsel for the revision petitioners and Sri Pramod Kumar Kedia, learned counsel for the contesting respondents. The learned counsel relied on various precedents, which will be referred to in due course. During the course of arguments, a memo was filed on behalf of the revision petitioners seeking to amend the name of the 1st revision petitioner only as Y. Ramachandra Reddy, Proprietor of M/s. Y. Ramachandra Reddy Associates & Associate Companies, as the prayer in I.A. No.205 of 2009 leads to the 1st petitioner being described as Sri Y. Ramachandra Reddy, Proprietor of Y. Ramachandra Reddy Associates & Associate Companies represented by its Director Y. Ramachandra Reddy, which is anomalous. The point for consideration is whether the revision petitioners have to be permitted to make the proposed amendment to the name of the 1st revision petitioner in the plaint ? Point: The principles laid down in the precedents cited need to be noted in the first instance. I n J.D. Singh v. Calcutta Port Trust[1], it was held that mere erroneous description of an arbitration award holder without any fraudulent or mala fide motive cannot be a ground for dismissal of a claim for execution. In M/s. Oriental Coal Company Limited v. M/s. Mohanlal Kisanlal[2], it was held that filing of a suit by the sole proprietor in trade name is not fatal and such a mistake, while instituting the suit in the name of a wrong person, can be allowed to be amended at any stage of the proceeding. It was further held that where a man carrying on business in the name of the firm, had sued in that name, he can be allowed to sue by inserting his own name subject to question of costs up to the date of amendment. I n Rajendra Prasad Oil Mills v. Smt. Chunni Devi[3], it was held that the word ‘person’ used in Order XXX Rule 10 of the Code of Civil Procedure covers even a limited company carrying on the business in the name and style other than its own and the object of the rule is only to prevent concealment of true name of the person who carried on the business. I n M/s. M.K.M. Moosa Bhal Amin, Kota v. Rajasthan Textile Mills, Bhawanimandi[4] and Harishankar Lath v. General Merchants Ltd.,[5], the scope of Order XXX Rule 10 of the Code of Civil Procedure was discussed and in Purushottam Umedbhai and Co., v. M/s. Manilal and Sons[6], the Apex Court pointed out that a suit in the name of the firm by partners is only misdescription of the plaintiff and can be corrected by amendment by substituting the names of the partners under Section 153 of the Code of Civil Procedure. To the same effect is the decision in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon[7]. North Eastern Railway Administration v. Bhagwan Das (dead) by LRs.[8] dealt with the permissibility of allowing the amendments which do not work injustice to the other side and which are necessary for purpose of determining the real questions in controversy. An amendment to make the claim more precise ought to be allowed, is the principle laid down in Ramachandra Sakharam Mahajan v. Damodar Trimbak Tanksale[9]. The Supreme Court again held that the power to allow amendment is wide, exercisable at any stage of the proceedings in the interest of justice with a liberal approach, while the other side can be compensated with costs, in State of A.P. and others v. Pioneer Builders, A.P.[10]. I n Rajesh Kumar Aggarwal v. K.K. Modi[11], the Apex Court declared the object of Order VI Rule 17 of the Code of Civil Procedure to be that the Court should try the merits of the case and consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. The real controversy test was held to be the basic or cardinal test and the rule of amendment was held to be essentially a rule of justice, equity and good conscience in the larger interest of doing full and complete justice to the parties. These precedents relied on by the learned counsel for the revision petitioners are sought to be answered with reference to Revajeetu Builders and Developers v. Narayanaswamy and sons and others[12], wherein the Apex Court laid down some basic principles which ought to be taken into consideration while allowing or rejecting an application for amendment, among which is the general rule that the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. It was held that the fact that the claim is barred by law of Limitation, is but one of the factors to be taken into account by the Court in exercising the discretion to allow or refuse the amendment, but it was stated again that the same will not affect the power of the Court, if the amendment is required in the interests of justice. The precedential guidelines concerning the exercise of jurisdiction in respect of consideration of a request for amendment of pleadings, thus, primarily emphasize on the need to do full and complete justice between the parties, unhampered by technicalities and to effectively and completely adjudicate the real questions in controversy between the parties without, of course, any injustice or prejudice to the opposite party. The precedents relied on by the revision petitioners also emphasized that a misdescription of a party can always be permitted to be corrected at any stage. The prohibition under the Proviso to Order VI Rule 17 of the Code of Civil Procedure introduced by 2002 amendment requiring diligence of the party to enable any such request after commencement of trial, is not absolute and invariable and even the purpose and intent of the proviso can be considered to be directory and not mandatory. It is, undoubtedly, true that prejudice or damage to the opposite party, which cannot be compensated by costs, is always a factor against amendment and the bar of limitation and consequential rights accrued to a party more or less fall under such a category, but even the possible involvement of the question of limitation will not affect the power of the Court, if the amendment is required in the interests of justice. In the request for amendment made herein, the revision petitioners only sought for the amendment of the cause title to correct a misdescription and made no specific request about giving effect to the proposed amendment from any specified date or any anterior date or the date of the suit. Section 21 of the Limitation Act, 1963 deems a suit to have been instituted in respect of a new plaintiff or defendant only when such a new plaintiff or defendant is substituted or added or made a party. While the Court has the power to direct that the suit, as regards such plaintiff or defendant, shall be deemed to have been instituted on any earlier date, the question whether the proposed amendment amounts to adding a new plaintiff within the meaning of Section 21 of the Limitation Act and if so, when the suit in respect of such new plaintiff must be deemed to have been instituted and whether the suit in respect of such new plaintiff is barred by limitation, are questions on which no expression of opinion should be made in this revision in the absence of such contentions being raised by the parties, more particularly the revision petitioners before the trial Court or this Court. The said question of limitation has to be left open to be determined by the trial Court on merits in accordance with law in the further proceedings in the suit. The impugned order elaborately extracting the rival pleadings, contentions and precedents relied on, primarily went against the revision petitioners on the ground of delay and laches since the filing of the suit 13 years earlier and commencement and conclusion of the trial long back. Even the revision petitioners did not claim any changed circumstances or subsequent events, but only claimed that the misdescription was due to a bona fide impression about the maintainability of the suit as originally framed, which is subsequently found to be incorrect. The mistake could have been but bona fide, as the revision petitioners gain nothing and lose everything in filing the suit in a non-maintainable format and the ignorance or lapse on the part of the revision petitioners has to be considered to be condoned in the interests of justice in the light of the settled principles above referred to. The respondents cannot be considered to be placed in a position, which cannot be compensated by costs by allowing the amendment, as they can raise all the pleas which are now raised against the amendments by way of filing additional written statement after the amendment is carried out and the question of limitation is still left open to be determined by the trial Court on merits. The inconvenience caused by the abnormal delay in approaching the Court for amendment should result in appropriate terms and the civil revision petition has to be allowed accordingly, of course, permitting the amendment as per the memo filed by the revision petitioners into this Court on 12-07-2010. The plea of the respondents that the nature of the suit and the cause of action will be totally substituted by the proposed amendment prejudicing their defence cannot be upheld, as the contents of the suit claim are no way changed and as it is only a change in the description of the capacity of the person in representing the 1st plaintiff that is sought to be effected. In the result, the order of the Senior Civil Judge, Medak in I.A. No.205 of 2009 in O.S. No.14 of 1996, dated 08-07-2009 is set aside and the said I.A. No.205 of 2009 will be allowed on payment of costs of Rs.5,000/- (Rupees five thousand only) to the Mandal Legal Services Committee, Medak within fifteen days from the date of this order and in default, the petition shall stand dismissed. In case of the petition being allowed, the cause title of the suit shall be amended describing the 1st plaintiff as “Y. Ramachandra Reddy, Proprietor of M/s. Y. Ramachandra Reddy Associates and Associate Companies” and the question of limitation is left open for determination by the trial Court on merits in accordance with law. The civil revision petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 22-07-2010 Svv [1] AIR 1994 Calcutta 148 [2] AIR 1984 Bombay 174 [3] AIR 1969 Allahabad 1 [4] AIR 1974 Rajasthan 194 [5] 1956 Orissa 186 (AIR V 43 C 52 Oct..) [6] AIR 1961 Supreme Court 325 [7] 1969 (1) Supreme Court Cases 869 [8] (2008) 8 Supreme Court Cases 511 [9] (2007) 6 Supreme Court Cases737 [10] (2006) 12 Supreme Court Cases 119 [11] (2006) 4 Supreme Court Cases 385 [12] (2009) 10 Supreme Court Cases 84