# GANESH TRADING CO v. MOJI RAM

- **Citation:** [1978] 2 S.C.R. 614
- **Court:** Supreme Court of India
- **Decided:** 1978-01-25
- **Case number:** CIVIL APPELLATE JURISDJTION : Civil Appeal No. 1338 of 1977
- **Bench:** M. H. Beg, D. A. Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ganesh-trading-co-v-moji-ram-7406
- **Pages:** 7

## Headnote

Civil Procedure Code, Order 6 Rule 17-Amendment of
pleadings,
when
{
'J.ernzissible-"New cause of action" whether constituted by
staternent of
ina.1vertently omitted essential fact.
The appellant-plaintiff firm had filed a suit through one of its partners, for
recovery of Rs. 68,000 /- due under a promissory note.
After the written statement had been duly filed, an amendn1ent of the plaint was applied for, on the
ground that the plaintiff had inadvertently omitted to mention the essential fact
that the firm had actually been dissolved before the institution of the suit. The
Trial Court, and the High Court, in revision, refused to a11ow the amendment
on the ground that it would amount to the introduction of a new time
barred
cause Of action.
Allowing the appeal the ~ourt,
HELD : In a suit institut.ed by one of the partners of a dissolved firm, the
mere specification of the capacity in which the suit was filed could not change
the character of the suit or the case.
Even where an essential fact is lacking
from averments in the plaint, the cause of action will be defective btJt this does
not, by itself, necessarily constitute a new cause of action if the plaint is amended.
[619 F, 618 A]
However negligent or careless may have been the first omission, and however late tbe proposed amendment, the amendment may be. allowed if it can
be made without injustice to the other side subject to conditions such as payment of costs.
[619 A-BJ
Jai Jai Rani Manohar Lal v. National Building Materinl Supply, Gurgaon,
\.-
1970(1) S.C.R. 22-A.l.R. 1969 S.C. 1267, followed.
Charan Das v. Amir Khan, 47 I.A. 255; L. J. Leach & Co. Ltd. v. Jardine
Skinner & Co., 1957 S.C.R. 438, applied.
Mohan Singh v. Kanshi Rani, 1976 C.L.J. (Civil) p.
135,
lppili
Satyanarayana v. The Amadalavalasa Cooperative Agricultural and Industrial Society
Ltd., A.I.R. 1975 A.P. 22, Agarwal Jorawarmal & Anr. v. Karan1 & Anr.; A.l.R.
19, Nagpur 31; A. K. Gupta & Sons Ltd. v.
Da1nodar
Valley
Corporation,
A.LR. 1967 S.C. 96; and Purshottam Urnedbhai & Co. v. M /r. Afanilal and
Sons, 1961 (I) S.C.R. 982; referred to.
Procedural law is intended to facilitate and not to obstruct the course
of
substantive justice.
Provisions relating to pleadings in civil cases are meant to
give to each side intimation of the case of the other so that it rnay be met,
to enable Courts to determine \Vhat is really at issue between the parties, and to
prevent deviation from the course which litigation on particular causes must
take.
[615 B-C]
CIVIL APPELLATE JURISDJTION : Civil Appeal No. 1338 of 1977.
Appeal by Special Leave from the Judgment and Order dated 20th
April, 1977 of the Punjab and Haryana High Court in Civil Revision
No. 508 of 1975.
V. M. Tarkunde and 0. P. Verma or the Appellant.
M. 8. Lal for the Respondent.
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GANESH TRADING CO. V. MOJI RAM (Beg, C.J.)
615
The Judgment of the Court was ,delivered by
BEG, C.J. This appeal by special leave indicates how, despite the
settled practice of this Court not to interfere, as a general rule, with
orders of an interlocutory nature, such as one on an application for
the amendment of a plaint, this Court feels compelled, in order to
promote uniform standards and views on questions basic for a sound
.administration of justice, and, in order to prevent very obvious failures
-0f justice, to interfere even in such a matter in a very exceptional case
such as the one now before us seems to us to be.
·
Procedural la'\' is intended to facilitate and not to obstruct the
course of substantive justice.
Provisions relating to pleading in civil
,ca~es are meant to give to each side intimation of the case of the other
so that it may be met, to enable Courts to determine what is really
.at issue between parties, and to prevent deviatio'ns from the course
which litigation on particular cau&os of action must take.
Order 6, rule 2 Civil Procedure Code says :
"Every pleading shall contain, and contain only a statement in a concise form of

## Text

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614
GANESH TRADING CO.
v.
MOJI RAM
January 25, 1978
[M. H. BEG, C. J. AND D. A. DESAI, J.]
Civil Procedure Code, Order 6 Rule 17-Amendment of
pleadings,
when
{
'J.ernzissible-"New cause of action" whether constituted by
staternent of
ina.1vertently omitted essential fact.
The appellant-plaintiff firm had filed a suit through one of its partners, for
recovery of Rs. 68,000 /- due under a promissory note.
After the written statement had been duly filed, an amendn1ent of the plaint was applied for, on the
ground that the plaintiff had inadvertently omitted to mention the essential fact
that the firm had actually been dissolved before the institution of the suit. The
Trial Court, and the High Court, in revision, refused to a11ow the amendment
on the ground that it would amount to the introduction of a new time
barred
cause Of action.
Allowing the appeal the ~ourt,
HELD : In a suit institut.ed by one of the partners of a dissolved firm, the
mere specification of the capacity in which the suit was filed could not change
the character of the suit or the case.
Even where an essential fact is lacking
from averments in the plaint, the cause of action will be defective btJt this does
not, by itself, necessarily constitute a new cause of action if the plaint is amended.
[619 F, 618 A]
However negligent or careless may have been the first omission, and however late tbe proposed amendment, the amendment may be. allowed if it can
be made without injustice to the other side subject to conditions such as payment of costs.
[619 A-BJ
Jai Jai Rani Manohar Lal v. National Building Materinl Supply, Gurgaon,
\.-
1970(1) S.C.R. 22-A.l.R. 1969 S.C. 1267, followed.
Charan Das v. Amir Khan, 47 I.A. 255; L. J. Leach & Co. Ltd. v. Jardine
Skinner & Co., 1957 S.C.R. 438, applied.
Mohan Singh v. Kanshi Rani, 1976 C.L.J. (Civil) p.
135,
lppili
Satyanarayana v. The Amadalavalasa Cooperative Agricultural and Industrial Society
Ltd., A.I.R. 1975 A.P. 22, Agarwal Jorawarmal & Anr. v. Karan1 & Anr.; A.l.R.
19, Nagpur 31; A. K. Gupta & Sons Ltd. v.
Da1nodar
Valley
Corporation,
A.LR. 1967 S.C. 96; and Purshottam Urnedbhai & Co. v. M /r. Afanilal and
Sons, 1961 (I) S.C.R. 982; referred to.
Procedural law is intended to facilitate and not to obstruct the course
of
substantive justice.
Provisions relating to pleadings in civil cases are meant to
give to each side intimation of the case of the other so that it rnay be met,
to enable Courts to determine \Vhat is really at issue between the parties, and to
prevent deviation from the course which litigation on particular causes must
take.
[615 B-C]
CIVIL APPELLATE JURISDJTION : Civil Appeal No. 1338 of 1977.
Appeal by Special Leave from the Judgment and Order dated 20th
April, 1977 of the Punjab and Haryana High Court in Civil Revision
No. 508 of 1975.
V. M. Tarkunde and 0. P. Verma or the Appellant.
M. 8. Lal for the Respondent.
(
...
. ...-
r
,. \
_,
-~
.,-<, .·
GANESH TRADING CO. V. MOJI RAM (Beg, C.J.)
615
The Judgment of the Court was ,delivered by
BEG, C.J. This appeal by special leave indicates how, despite the
settled practice of this Court not to interfere, as a general rule, with
orders of an interlocutory nature, such as one on an application for
the amendment of a plaint, this Court feels compelled, in order to
promote uniform standards and views on questions basic for a sound
.administration of justice, and, in order to prevent very obvious failures
-0f justice, to interfere even in such a matter in a very exceptional case
such as the one now before us seems to us to be.
·
Procedural la'\' is intended to facilitate and not to obstruct the
course of substantive justice.
Provisions relating to pleading in civil
,ca~es are meant to give to each side intimation of the case of the other
so that it may be met, to enable Courts to determine what is really
.at issue between parties, and to prevent deviatio'ns from the course
which litigation on particular cau&os of action must take.
Order 6, rule 2 Civil Procedure Code says :
"Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the
party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved,
and shall, when necessary, be divid•ed into paragraphs, numbered consecutively. Dates, sums and numb~rs shall be expressed in figures".
Order 6, rule 4 indicates cases i'n which par:icu:ars of its pleading
must be set out by a party.
And, order 6, rule 6 requires only such
conditions precedent to be distinctly specified in a pleading as a party
wants to put in issue.
Order 6, rule 5 provides for such "further
and better statement of the nature of the claim or defence, or further
a'nd better particulars of any matter stated in any pleading ...... " as
the Court may order, and "upon such terms, as to CO\Sts and otherwise,
as may be just''. Order 6, rule 7, contains a prohibition against departure of proof from the pleadings except by way of amendment of
pleadings. After some provisions relating to special cases and circumstances, a'nd for signing, verification and striking out of pleadings,
comes order 6, rule 17 which reads as follows :
"The Court may at any stage of the proceedings a:low
either party to alter or amend his pleadings in such manner
and on such ter1ns as 1nay be just, and all such amendments
shall be made as may be necessary for the purpos•o of determini'ng the real questions in controversy between the parties".
It is clear from the foregoing summary of th•e main rules of pleadings that provisions for the amendment of pleadings, subject to such
terms as to costs and giving of all par:ies concerned necessary opportunities to meet exact situations resulting from amendments, are inten-
<led for promoting the ends of justice and not for defeating them. Even
if a party or its counsel is inefficient in sett;ng out its case in~tially the
shortconting can certainly be removed generally by appropriate steps
taken by a party which must. no doubt pay costs for the inconvenience
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616
SUPREME COURT REPORTS
[1978] 2 S.C.R.-
or expense caused to the other side from its omissions. The error is not
in1:apable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
It is true that, if a plaintiff seeks to- alter the cause of action itself
and to introduce indirectly, through an amendment of his pleadings,
an entirely new or inconsistent cause of action, amounting virtually fothe substitution of a new plaint or a new cause of action in place of
what was originally there, the Court will refuse to permit it if it
amounts to depriving the party against which a snit is pending of any
right which may have accrued in its favour due to lapse of time. But,
mere failure to set out even an essential fact does not, by itself, consti·
tute a new cause of action.
A cause of action is constituted by the
whole bundle of essential facts which the plaintiff must prove before
he can succeed in his suit. It must be antecedent to the institution of
the suit If any essential fact is lacking from averments in the plaint
the cause of action will be defective. In that case, an attempt to
supply the omission has been and could sometimes be
viewed as
equivalent to an introduction of a new cause of action which, cured
of its short-comings. has really become a good cause of action. This,
however, is not the only possible interpretation to be put on every
defective state of pleadings.
Defective pleadings are generally cur·
able if the cause of action sought to be brought out was not ab initiv
completely absent.
Even very defective pleadings may be permitted
to be cured, so as to constitute a cause of action where there was none,
provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side
are complied with. It is only if lapse of time has barred the remedy
on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.
In the case before us, the appellant-plaintiff Mis. Ganesh Trading
Co., Karna!, had filed a suit "through Shri Jai Parkash", a partner of
that firm, based on a promissory note, dated 25th August 1970, for
recovery of Rs. 68,000/-.
The non-paymeut of money due under the
promissory note was the real basis. The suit was filed on 24th August
1973, just before the expiry of the period of limitation for the claim
for payment. The written statement was
filed on 5th June 197~.
denying the assertions made in the plaint It was also asserted that
the suit was incompetent for want of registration of the firm and was
struck by the provisions of section 69 of the Indian Partnership Act
On 31st August 1974, the plaintiff filed an amendment applicaticin
wherein it was stated that the plaintiff had "inadvertently omitted'
certain material facts which are necessary to incorporate in the plaint
so as to enable the Hon'ble Court to consider and decide the subject
matter of the suit in its true perspective and which it is necessary to
do in order to meet ends of justice". It was explained there that the
omission consisted of a failure to mention that the plaintiff firm,
Ganesh Trading Co. Kamal, had been actually dissolved on 15th July
1973, on which date a deed of dissolution of the firm was execute~;
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GANESH TRADING CO. v. MOJI RAM (Beg, C.J.)
6 l 7
The Trial Court had refused to allow the amendment by its order
dated 8th April 1975, on the ground that it amounted to the introduction of a new cause of action.
On a Revision application before the High Court, the High Court
.observed :
"The suit originally instituted was filed on behalf of a
firm through one of the partners in the amendment pr~yed
for, a new claim is being sought to be laid on the basis of
new facts''.
]t examined the new averments relating to the shares of the partners
and the execution of the deed of dissolution of the firm on 15th July
1973. It then said :
"It is on the basis of these averments that title of the
suit is sought to be changed from
Mis. Ganesh Tradin&
Compauy, Kar~al, tbrough. Shri Jai Parkash son .oi Shn
Hari Ram, resident of Railway Road, Karna!, to dissolved
firm, through Shri Jai Parkash son of Shri Hari Ram, resident of Railway Road, Kamal, ex-partner of the said firm.
It would be seen that the change in the heading of the suit is
not being sought merely on the ground of mis-description or
there being no proper description, the cause of action remaining the same, but on the other hand, the change in the
heading of the plaint has been sought on the basis of the
new facts prayed to be allowed to be averred in the amendment plaint, for which new basis has been given
alleging
the dissolution of the partnership on a date before the suit
was filed in the Court".
We are unable to share the view taken by the High Court. The
1-ligh Court had relied on A. K. Gupta & Sons Ltd. v. Damodar Valfey
Corporation.(') In that case the plaintiff had sought a declaration of
bis rights under the terms of a contract. The suit was decreed. But,
as the first appellate Court had reversed the decree on the ground that
section 42 of the Specific Relief Act barred the grant of a mere declaratory decree in such a case, the appellant had sou;!1t leave, by
filing an amendment application in its second appeal before the High
Court seeking to add a relief to recover such monies as may be found
due to bim on proper accounting. By a majority, the view expressed
by this Court was th(lt the amendment should be allowed although the
Court affirmed the principle that, as a rule, a party should not be
allowed, by means of an amendment, to set up a new cause of action
particttlarly when a suit on the new case or cause of action is barred
by time.
On that occasion, this Court had also referred to Charan Das v.
Amir Khan( 2 ), and, L. !. Leach & Co. Ltd.
v. Jardine Sldnner &
Co.('), to hold that "a different or additional approach to the same
(!) A.l.R. 1967 S.C. 96.
'(2) 47 Ind. App. 255,
(3) [1957] S.C.R. 438.
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SUPREME COURT REPORTS
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facts" coul<l be allowed by amendment even after the expiry of the
statutory period of limitation. It had pointed out that the object of
rules of procedure is to decide the rights of the parties and not to
punish them for their mistakes or short-coming. It also said that no
question of limitation, strictly speaking, arose in such cases because
what was sought to be brought in was merely a clarification of what
was already there. It said (at p. 98) :
"The expression 'cause of action' in the present context
does not mean 'every fact which it is material to be proved
to entitle the plaintiff to succeed' as was said in Cooke v. Gill
(1873) 8 CP 107 (116), in a different context, for if it
were so. no material fact could ever be amended or added
and, of course, no one would want to change or add an immaterial allegation by amendment.
That expression for the
present purpose only means, a new claim made on a new
basis constituted by new facts.
Such a view was taken in
Rohimon v. Unicos Property Corporation Ltd., 1962-2 All
ER 24, and it seems to as to be the only possible view to
take.
Any other view would make the rule futile. The
words 'new case' have been understood to mean 'new set
of ideas'.: Dornan v. J. M. Si/Us and Co. Ltd., 1962-1 All
ER 303.
This also means to us to be a reasonable view to
take.
No amendment will be allowed to ;ntroduce a new
set of ideas to the prejudice of any right acquired by any
party by lapse of time".
The High Court had also referred to Jai Jai Ram Manohar
Lal,
v. National Building Material Supply. Gurgao11(1), but has failed to
follow the principle which was clearly laid down in that case by this
Court.
There, the plaintiff had instituted a suit in the name of Jai
Jai Ram Manohar Lal which was the name in which the business of
a firm was carried on.
Later on, the plaintiff had applied to amei1d
the plaint so that the description may be altered into "Matrohar Lal
Proprietor Jai Jai Ram Manohar Lal".
The plaintiff also sought to
clarify paragraph 1 of the plaint so that it may be evident that "Jai
Jai Ram Manohar Lal" was only the firm's name.
The defendant
pleaded that Manohar Lal was not the sole Proprietor.
One of the
objections of the defendant in that case was that the suit by Manohar
Lal as sole owner would be time barred on 18th July 1952, when the
amendment was sought. In that case, the High Court had taken the
hypertechnical view that Jai Jai Ram Manohar Lal beino "a nonexisting person" the Trial Court could not allow an amendment which
converted a non-existing person into a "peri•0n" in the eye of law so
that the suit may not be barred by time. This Court while reverSTng
this hypertechnical view observed (at p. 1269) :
"Rules of procedure are intended to be a handmaie to
the administration of justice.
A party cannot be re'11sed
just relief merely because of some m'sta.ke, negligence, inadvertence or even infraction of the rules of procedure. The
Court always gives leave to amend the pleading of a partv, un-
(1) A.l.R. 1969 S.C. 1267.
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GANESH TRAIJJNG CO. V. MOJI RAM (Beg, C.J.)
61 g.
less it is satisfied that the party applying was acting ma/a
fide, or that by his blunder. he had caused injury
to his
opponent which may not be recompensed 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.
Purushottam Umedbhai & Co. v. M/s. Manila/ & Sons( 1), was a
case of a partnership firm where this Conrt pointed out that Section 4
of the Partnership Act uses the term "firm" or the "firm name" as a
compendious description of all the partners collectively".
Speaking
of the provisions of Order 30 Civil Procedure Code this Court said
there (at p. 991) :
"The introduction of this provision in the Code was an
enabling one which permitted partners constituting a firm
to sue or be sued in the name of the firm.
This enabling
provision, however, accorded no such facility or privilege to
partners constituting a firm doin$ business outside India.
The existence of the provisions of 0. XXX in the Code does
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busine>S outside India is not a suit in fact by the partners
of that firm individually".
We think that the view expressed by Narula C.J., in Mohan Singh
v. Kanshi Ram('), which was dissented from by the Division Bench.
of the High Court is correct. In that case, the learned Judge had
rightly followed the principles laid down by this Court in Jai Jai Ram
E
Manohar Lui (supra) and had also agreed with the view taken in
lppili Satyanarayana v. The Amada/avalasa Cooperative Agricultural
and Industrial Society Ltd. ( 3), where it held that the defendant was
not prejudiced by the amendment of the description at all.
In the case before us also, the suit having been instituted by one
of the partners of a dissolved firm the mere specification of the capaF
city in which the suit was filed could not change the character of the
suit or the case. It made no difference to the rest of the pleadings
or to the cause of action.
Indeed, the amendment only sought to
give notice to the defendant of facts which the plaintiff would and
could have tried to prove in any case.
This notice was being given,
out of abundant caution, so that no technical objection may be taken
that what was sought to be proved was outside the pleadings.
G
We also agree with the view taken by the Nagpur High Court in
Agarwal Jorawarmal & Anr. v. Kasam & Anr.(4 ), where Vivian
Bose, J., said (at p. 315)
(1) (1961] (ll S.C.R. 982.
(2) 1976 C.Ll. (Civil) 135.
(3) A.I~-
1975 A.P. 22.
(4) A.l.R. 19 Na;pu· 315.
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SUPREME COURT REPORTS
[1978] 2 S.C.R
"It is argued on behalf of the defendants that 0. 30,
R.l. Civil P.C. indicates that a suit can be filed in the name
of the firm by some of the partners only if the partnership
is existing at the date of the filing of the suit. The argument has no force in view of the finding that the firm was
not dissolved by reason of the insolvency of one of its partners. But even if it has been dissolved, the effect of dissolution is not to render the firm non-exjstent. It continues
to exist for all purposes necessary for its winuing up. One
of these is of course the recovery of moneys due to it ·by
suit or otherwise".
We think that the amendment sought does not alter the cause o [
action. It only brings out correctly the capacity of the plaintiff suing.
It does not change the identity of the plaintiff who remains the same.
The result is that we allow this appeal and set aside the order;
of the High Court and the Trial Court.
We allow the amendment
application and send back the case to the Trial Court. We direct that
the Trial Court will now permit the defendant to file such further objections, if any, as the defendant may wish to file within 14 days or
the receipt of the record by the Trial Court. It will then proceed v'
decide the case in accordance with law. Costs to abide the results of
the litigation.
M.R.
Appeal allowea.
1146 SCI/77-2500-12-7-78-GIPI'.
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