VARUN PAHWAversusMRS. RENU CHAUDHARY

128                      [2019]REPORTS
               SUPREME COURT    4 S.C.R. 128              [2019] 4 S.C.R.


A                              VARUN PAHWA
                                       v.
                         MRS. RENU CHAUDHARY
                        (Civil Appeal No. 2431 of 2019)
B                               MARCH 01, 2019
               [DR. DHANANJAYA Y CHANDRACHUD AND
                            HEMANT GUPTA, JJ.]
            Code of Civil Procedure, 1908 – O. VI, r.17 – Amendment of
      pleadings – Appellant-plaintiff as director of a company filed a suit
C     for recovery of Rs.25,00,000/- – Thereafter, plaintiff 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 – Trial Court declined the
D     amendment – High Court affirmed the order of the trial court – On
      appeal, held: The plaint was not properly drafted in as much as in
      the memo of parties, the plaintiff was described as ‘VP’ through
      director of the Company though it should have been Company
      through its director ‘VP’ – It was inadvertent mistake on the part of
      the counsel who drafted the plaint – Such inadvertent mistake could
E     not be refused to be corrected when mistake was apparent from the
      reading of the plaint – Therefore, the order declining to correct the
      memo of parties not justified in law – Consequently, orders passed
      by the trial Court and the High Court set aside.
            Allowing the appeal, the Court
F
            HELD: 1. The plaint is not properly drafted in as much as
      in the memo of parties, the Plaintiff is described as ‘VP’ through
      Director of SG Pvt. Ltd. though it should have been SG Pvt. Ltd.
      through its Director ‘VP’. Thus, it is a case of mistake of the
      counsel, may be on account of lack of understanding as to how a
G     Private Limited Company is to sue in a suit for recovery of the
      amount advanced. [Para 8][131-B, C]
            2. 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
H     apparent from the reading of the plaint. The Rules of Procedure
                                      128
         VARUN PAHWA v. MRS. RENU CHAUDHARY                                129


are handmaid of justice and cannot defeat the substantive rights           A
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
                                                                           B
pleadings is intended to serve the ends of justice and is not
governed by any such narrow or technical limitations. [Para 9]
[131-C-E]
       3. Thus, this Court finds 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            C
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. [Para 11]
[133-G,H]
      State of Maharashtra v. Hindustan Construction                       D
      Company Limited (2010) 4 SCC 518 : [2010] 4 SCR 46;
      Uday Shankar Triyar v. Ram Kalewar Prasad Singh
      and Another (2006) 1 SCC 75 : [2005] 5 Suppl.
      SCR 157 – relied on.
                        Case Law Reference                                 E
      [2010] 4 SCR 46                    relied on        Para 9
      [2005] 5 Suppl. SCR 157            relied on        Para 10
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2431
of 2019.                                                                   F
      From the Judgment and Order dated 20.08.2018 of the High Court
of Delhi at New Delhi in CM(M) No. 958 of 2018.
      Avinash Kr. Lakhanpal, Adv. for the Appellant.
      The Judgment of the Court was delivered by
                                                                           G
      HEMANT GUPTA, J. 1. 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.           H
130             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A             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
B
      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
C     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
D     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
E     read as under:-
                “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
F             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
G             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
H
            VARUN PAHWA v. MRS. RENU CHAUDHARY                                131
                     [HEMANT GUPTA, J.]

as it completely changes the nature of the suit. It is the said order which   A
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        B
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.
                                                                              C
        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                      D
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.      E
In State of Maharashtravs.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     F
        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      G
        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:
1
    (2010) 4 SCC 518
2
    (1883) 32 WR 262 (CA)                                                     H
132                SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A                  “... 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 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
B
                   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
C              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.
                                   ***       ***      ***
D
               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)
E
                   “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
F                  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
G                  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
H
            VARUN PAHWA v. MRS. RENU CHAUDHARY                                   133
                     [HEMANT GUPTA, J.]

            “7. ...The power to grant amendment of the pleadings is              A
            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 thatprocedural defects and irregularities
which are curable should not be allowed to defeat substantive rights or          B
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      C
         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       D
         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     E
         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;                    F
         (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.”
        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        G
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.
5
    (2006) 1 SCC 75                                                              H
134                SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A           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.
B

      Ankit Gyan                                                  Appeal allowed.




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