REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2431 OF 2019          (Arising out of S.L.P (C) No. 2792 of 2019)

Varun Pahwa                ........Appellant

          Versus

Mrs. Renu Chaudhary                             ........Respondent

J U D G M E N T

Hemant Gupta, J.

Leave granted.

2. The Order dated 20.08.2018 passed by the High Court of Delhi is

subject  matter  of  challenge  in  the  present  appeal.  By  the  aforesaid

order, a petition against an order passed by the learned trial court on

23.01.2018 seeking permission to amend the plaint was dismissed.   

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3. The appellant as Director of Siddharth Garments Pvt. Ltd. filed a

suit for recovery of Rs. 25,00,000/- along with pendente lite and future

interest  on  or  about  28.05.2016.   The  Plaintiff  has  claimed the  said

amount advanced as loan of Rs. 25,00,000/- remitted to the defendant

through RTGS on 16.06.2013 on HDFC Bank, Delhi. It is also averred that

Plaintiff has given Special Power of Attorney to Shri Navneet Gupta and

that a copy of the Power of Attorney is enclosed.   

4. The  defendant  raised  one  of  the  preliminary  objections  in  the

written statement that suit has not been filed by the Plaintiff and even

the  alleged  authorised  representative  has  not  filed  any  document

showing that he has been authorised by the above-named Plaintiff. The

Special Power of Attorney is neither valid nor admissible.   

5. It was on 29.11.2016, Navneet Gupta appeared in Court as power

of attorney of the Plaintiff to examine himself as PW1. It  was at that

stage; an order was passed by the learned trial court to furnish address

of  the Plaintiff  and why the Plaintiff  should  be examined through an

attorney when the Plaintiff is a resident of  Delhi.  It  is  thereafter,  the

appellant filed an application for amendment of the plaint on the ground

that the counsel had inadvertently made the title of the suit wrongly as

the loan was advanced through the Company, therefore, the suit was to

be  in  the  name  of  the  Company.  Therefore,  the  Plaintiff  sought  to

substitute para 1 and para 2 of the plaint with the following paras which

read as under:-

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“1. That  the  Plaintiff  is  a  Private  Limited Company  having  its  registered  office  at:  I-VA (property bearing No. XII), Jawahar Nagar, Delhi

2. That the present plaint is  filed through the authorised  representative  of  the  Plaintiff  namely Sh. Navneet Gupta, R/o. 322, Kohat Enclave, Pitam Pura,  Delhi  who has  been  authorised vide  board resolution  dated  12.05.2016  to  sign,  verify  and execute  all  documents,  papers,  complaints, applications,  plaint,  written  statement,  Counter claim,  affidavits,  replies  revisions,  etc.  and  to institute,  pursue  and  depose  in  all  legal proceedings and court cases on behalf of Siddharth Garments  Pvt.  Ltd  against  Mrs.  Renu  Chaudhary who was given the loan of Rs. 25 Lakhs.”

6. The trial court declined the amendment on the ground that the

application is an attempt to convert the suit filed by a private individual

into a suit filed by a Private Limited Company which is not permissible

as it  completely changes the nature of the suit.   It  is  the said order

which was not interfered with by the High Court.   

7. We have heard  learned counsel  for  the  appellant  as  none had

appeared on behalf of the respondent.  

8. The plaint is not properly drafted in as much as in the memo of

parties,  the Plaintiff is  described as Varun Pahwa through Director of

Siddharth  Garments  Pvt.  Ltd.  though  it  should  have  been  Siddharth

Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of

mistake of the counsel, may be on account of lack of understanding as

to how a Private Limited Company is to sue in a suit for recovery of the

amount advanced.  

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9. The memo of parties is thus clearly inadvertent mistake on the

part of  the counsel  who drafted the plaint.  Such inadvertent mistake

cannot be refused to be corrected when the mistake is apparent from

the reading of the plaint. The Rules of Procedure are handmaid of justice

and cannot defeat the substantive rights of the parties. It is well settled

that  amendment  in  the  pleadings  cannot  be  refused  merely

because of some  mistake,  negligence,  inadvertence  or  even

infraction of the  Rules of Procedure.  The  Court  always  gives  leave  to

amend the pleadings  even  if  a  party  is  negligent  or  careless  as  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.  In  State of  Maharashtra vs. Hindustan Construction

Company Limited1, this Court held as under:-

“17. Insofar as the Code of Civil  Procedure, 1908 (for short  “CPC”)  is  concerned,  Order  6  Rule  17  provides for amendment of pleadings. It says that the court may at any stage of  the proceedings allow either  party  to alter  or  amend his  pleadings  in  such  manner and on such terms as may be just, and all  such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.  18. The  matters  relating  to amendment  of  pleadings have come up for consideration before the courts from time to  time.  As far  back as  in  1884 in Clarapede & Co. v. Commercial  Union Assn.2 -  an appeal that came up before the Court of Appeal, Brett M.R. stated:

“... The rule of conduct of the court in such a  case  is  that,  however  negligent  or careless  may  have  been  the  first omission, and,  however  late  the proposed amendment,  the amendment

1 (2010) 4 SCC 518 2 (1883) 32 WR 262 (CA)

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should  be  allowed  if  it  can  be  made without injustice to the other side. There is no  injustice  if  the  other  side  can  be compensated  by  costs;  but,  if the amendment will  put them into such a position that they must be injured, it ought not to be made….”

19. In Charan  Das v. Amir  Khan3 the  Privy  Council exposited the legal  position that  although power of  a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant  a legal  right which has accrued to him by lapse of  time,  yet  there  are  cases  in  which  that consideration  is  outweighed  by  the  special circumstances of the case.

***  ***  *** 22. In Jai  Jai  Ram  Manohar  Lal4 this  Court  was concerned  with  a  matter  wherein amendment  in  the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment  the  action  was  barred  by  the  law of limitation. It was held: (SCC p.871, para 5)

“5. …. 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.”

This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7):

3 (1919-20) 47 IA 255 4 (1969) 1 SCC 869

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“7.  ...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.”

10. In  Uday Shankar Triyar v. Ram Kalewar Prasad Singh and

Another5,  this  Court  held  that procedural  defects  and  irregularities

which are curable should not be allowed to defeat substantive rights or

to  cause  injustice.  Procedure  should  never  be  made  a  tool  to  deny

justice or perpetuate injustice by any oppressive or punitive use. The

Court held as under:-

“17. Non-compliance with any procedural requirement relating  to  a  pleading,  memorandum  of  appeal  or application  or  petition  for  relief  should  not  entail automatic  dismissal  or  rejection,  unless  the  relevant statute  or  rule  so  mandates.  Procedural  defects  and irregularities which are curable should not be allowed to defeat  substantive  rights  or  to  cause  injustice. Procedure,  a  handmaiden to  justice,  should  never  be made a tool to deny justice or perpetuate injustice, by any  oppressive  or  punitive  use.  The  well-recognised exceptions to this principle are: (i)  where  the  statute  prescribing  the  procedure,  also prescribes  specifically  the  consequence  of  non- compliance; (ii)  where the procedural  defect  is  not rectified,  even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv)  where the rectification of  defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence  of  authority  and  the  appeal  is  presented without  the  knowledge,  consent  and  authority  of  the appellant.”  

5 (2006) 1 SCC 75

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11. Thus,  we  find  that  it  was  an inadvertent  mistake in  the  plaint

which trial court should have allowed to be corrected so as to permit the

Private Limited Company to sue as Plaintiff as the original Plaintiff has

filed suit as Director of the said Private Limited Company. Therefore, the

order declining to correct  the memo of parties cannot  be said to be

justified in law.  

12. Consequently,  the  orders  passed  by  the  High  Court  dated

20.08.2018 and by the trial court on 23.01.2018 are set-aside and the

application filed by the Plaintiff to amend the plaint is allowed with no

order as to costs.  

The appeal is allowed.

 …………………………………… ………J.   (Dr. D. Y. Chandrachud)

……………………………………… …….J.  (Hemant Gupta)

New Delhi, March 1, 2019

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