1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.463 OF 2008 IN SUIT NO.154 OF 1994 Pallonji Shapoorji Charity Trust ..Plaintiff V/s Yezdi Framroze Madon & anr. .. Defendants Mr.Vishal Kanade a/w. Mr.Nikhil Rodrigues i/b.M/s.Desai & Diwanji, Advocate, for the plaintiff Ms.Kavita Shah i/b.A.G.Shah, Advocate, for the defendants CORAM : R.M.SAVANT, J. DATE : 2ND DECEMBER, 2008 P.C. . By the above Chamber Summons, the applicant/plaintiff seeks amendment of the plaint in terms of the Schedule annexed to the Chamber Summons. The plaintiff by the said amendment seeks to join the present trustees of the plaintiff trust as plaintiff Nos.1 to 4 and carry out the consequential amendment to the plaint. The plaintiff trust has filed the above suit through the Constituted Attorney of the 2 trustees of the said trust one Mr.K.B.Captain. The said suit has been filed for a declaration that the defendants are trespassers in respect of a Room No.1 in Block B in Alamai Shapoorji Mistry Charitable Building at Dr.Shirodkar Road, Parel, Bombay – 400 013. It is the case of the plaintiff that the suit filed through the constituted Attorney of the trustees was suffering from mis-discreption, and therefore amendment to join the trustees was required. The learned counsel for the plaintiff submitted that the public trust does not have any separate existence from the trustees and the said misdescription of the plaintiff is a curable defect, which the plaintiff is entitled to rectify by way of amendment. The learned counsel for the plaintiff relied upon the Judgment of the Apex Court reported in 2006(1) Supreme Court Cases 75 in the matter of UDAY SHANKAR TRIYAR Versus RAM KALEWAR PRASAD SINGH AND ANOTHER wherein the Hon'ble Apex Court has held that Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, being a handmaiden of justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The learned counsel for the plaintiff 3 also relied upon the Judgment of a learned Single Judge of this Court reported 2003(2) M.L.J. 987 in the matter of MUNICIPAL COUNCIL, TIRODA vs. K. RAVINDRA AND COMPANY and others wherein a learned Single Judge of this Court has held that the misdescription of the plaintiff is a curable defect. The facts before the learned Single Judge were that a suit was filed by K.RAVINDRA AND COMPANY through its proprietor Narayan Sakharam Kantode which was neither a partnership firm nor a limited Company and therefore, an objection was taken as regards maintainability of the suit by the defendant on the ground that a proprietor cannot file a suit in the trade name of the proprietory firm. In the said facts the learned Single Judge relying upon the Judgment of the Calcutta High Court reported in AIR 1994 Calcutta148 in the matter of M/s.J.D.Singh and others vs. Calcutta Port Trust wherein the suit was brought in the name of M/s.J.D.Singh & Co. but the award was allowed to be corrected by showing the name of the plaintiff to be read as 'J.D.Singh', held that it was a case of the misdescription through bona fide mistake and therefore it would be appropriate to allow the plaintiff to rectify the said defect. The learned counsel for the plaintiff in the instant case therefore submitted 4 that the suit as filed suffered from a misdescription and therefore, to cure the said defect the instant Chamber Summons has been filed. The learned counsel lastly submitted that in view of the misdescription, the question of limitation does not arise. 2. Per contra, it is submitted on behalf of the defendants that no case has been made out by the plaintiff for being permitted to amend the plaint in terms of the Schedule annexed to the Chamber Summons. The learned counsel for the defendants submitted that beyond stating in the affidavit-in-support that the plaintiff does not want to give defendants any excuse and therefore the Chamber Summons for amendment to implead the trustees has been filed, there is no other reason mentioned by the plaintiff in support of the amendment being allowed. It is further submitted on behalf of the defendants that the objection to the maintainability of the suit was taken at the first instance by them at the time of filing of the Written Statement i.e. On 19th April, 1994 and inspite of the same no steps have been taken by the plaintiff thereafter for a period of 14 years. It is further submitted that the issue of limitation as regards the reliefs 5 claimed in the suit would arise. The learned counsel for the defendants relied upon the Judgment reported in VOL.III INDIAN APPEALS 135 in the matter of RAJENDRONATH DUTT AND OTHERS AND SHAIK MAHOMED LAL AND OTHERS. In support of her contention that the suit without the trustees being parties to the same was not maintainable. 3. I have considered the rival contentions. It would be pertinent to note that the suit as originally filed is through the constituted attorney of the trustees Shri K.B.Captain. He was, therefore, in his capacity as the Constituted Attorney of the trustees was in fact representing the trustees, the plaint therefore suffered from a misdescription. Now what is sought to be done by way of the amendment is to bring the trustees on record. . The plaintiff therefore, in my view, would be entitled to rectify the misdescription so as to sue through the trustees. As held by the Hon'ble Apex Court the substantive rights of the parties cannot be allowed to be defeated on account of procedural defects and 6 irregularities. The defect in the instant case is in my view curable as the trustees were already acting through the Constituted Attorney Shri.K.B.Captain. 4. In so far as the aspect of the delay in filing the application for amendment is concerned, as held by the learned Single Judge of this Court in the Judgment cited (supra) since there is a misdescription the question of delay would not arsie. The reliance of the learned counsel for the defendants on the Judgment reported in Indian Appeals is misplaced, in the said case the Court has recorded a finding that one of the trustees was deliberately not joined as a plaintiff to the suit and therefore, the suit was not maintainable. 5. In the above view of the matter, the Chamber Summons filed by the plaintiff is required to be allowed and is accordingly made absolute in terms of prayer clause (a). Amendment to be carried out within a period of four weeks from date and an amended copy of the plaint to be served on the defendants within a period of four weeks thereafter. The defendants would be entitled to file their additional 7 Written Statement within a period of six weeks of the service of the amended plaint. The plaintiff to pay costs of Rs.3000/- to the defendants within a period of four weeks from date. (R.M.SAVANT, J.)