# JAi JAi RAM MANOHAR LAL v. NATIONAL BUILDING MATERIAL SUPPLY, GURGAON March 17, I 969

- **Citation:** [1970] 1 S.C.R. 22
- **Court:** Supreme Court of India
- **Decided:** 1970
- **Case number:** Civil Appeal No. 697 of 1966
- **Bench:** J. C. Shah, A . .N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jai-jai-ram-manohar-lal-v-national-building-material-supply-gurgaon-march-17-i-4738
- **Pages:** 6

## Headnote

Praclice and Procedure--·Amendn1ent vf plaint--Should 1101 be refused
on technical grounds-Amended plaint when deemed to be
filed-Effect
on limitation-Costs when parry persists in plea without 1neri1.
Manoharlal s/ o J ai J ai Ram commenced an action in the Court of the
Subordinate Judge· for value of timber supplied to the defendant. The
A
B
action was instituted in the name of •Jai Jai Ram Manohar Lai' which was
C
the ~
in which the business was carried on. The plaintiff signed and
verified the plaint as 'Jai Jai Ram Manohar Lal. by the pen of Manohar Lal.'
Later be applied to the Coun for leave to amend the plaint. In the application he averred that the busines.o;
carried on under the name
Jai Jai
Ram Manohar Lal was a joint Hindu family business and the name was
not an assumed or fictitious one as it contained bis name and that of his
father. On these averments he prayed that he be allowed to descrill< himself in the cause title as 'Manohar Lal proprietor of Jai Jai Ram ttianohar
D
Lal and in paragraph 1 to state that he carried on the business in timber
in the name of 'Jai Jai Ram Manohar Lal'. °lbe application was allowed
by the trial Judge. The defendant then filed a supplementary written state·
ment raising two additional contentions : (I) that the plaintiff was not the
sole owner of the business and that his other brothers were also the owners
of the business; and (2) that the amendment took effect from the date
on which it was made and if so. the suit was barred by limitation. The
trial court rejecting theoe contentions decreed the suit.
The High Court
E
in appeal took the view that the action having been instituted in the name
of a 'non-existing penon', and Maoohar Lal having failed to aver in the
application for amendment that the action was instituted in the name of
1Jai Jai Ram Manobar Lal' on. account of a bona fide mistake or omission,
the Subordinate Judge was incompetent to grant leave to amend the plaint.
The High Coun further held that the amendment allowed by the trial Coun
toot eftect only from the date of amendment, and the action was barred
F
by limitation. Against the judgment of the High Coun the plaintiff, by
special leave, appealed to this Coun.
HELD : (i) The order passed by the High Coun could not be sustained.
Rule.. of procedure are intended tn be a handmaid to the administration
of justice. A party cannot be refused relief merely because of same mistake, negligence, inadvertence or even infraction of the rules of procedure.
!be <;:ourt always gives leave t~ amend the pleading of a party, unless it
G
IS sallsfle<I that the p~ applytog was acting ma/a {Uk or that by bis
blunder he bad caused injury to his opponent which may not be compensated for by an order of cost..
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. [25 C-E!
Purshottam Um•dbhai de Co. v. Mis. Manila/ and Sons 11961] I S.C.R.
H
982, explained and applied.
'
Amulakchand M<waram & Ors. v. Babula/ Kana/al Tallwa/a, 35 Bom.
L.R.. Sfl'), applied.
•
,,
•
•
A
B
c
D
MANOHAR LAL V. N. B. M. SUPPLY (Shah, J.)
23
In the present case the plaintiff was carrying on business as commission
agent in the name of 'Jai Jai Ram Manohar Lal'. The plaintiff was competent to sue in his own name as manager of the Hindu undivided family
to which the business belonged; he claimed to have filed the suit on behalf
of the family in the business name. The observations made by the High
Court that the application for amendment of the plaint could not be granted,
because there was no averment therein that the misdescription \Vas on
account of a bona fide mistake, and on that account the suit must fail,
could not be accepted.
There is no rule that unless in an application for
amendment of the plaint it is expressly averred that the error, omission or
misdescription is due to a bona fide mistake. the court has no power to grant

## Text

JAi JAi RAM MANOHAR LAL
v.
NATIONAL BUILDING MATERIAL SUPPLY, GURGAON
March 17, I 969
[J. C. SHAH AND A . .N. GROVER, JJ.]
Praclice and Procedure--·Amendn1ent vf plaint--Should 1101 be refused
on technical grounds-Amended plaint when deemed to be
filed-Effect
on limitation-Costs when parry persists in plea without 1neri1.
Manoharlal s/ o J ai J ai Ram commenced an action in the Court of the
Subordinate Judge· for value of timber supplied to the defendant. The
A
B
action was instituted in the name of •Jai Jai Ram Manohar Lai' which was
C
the ~
in which the business was carried on. The plaintiff signed and
verified the plaint as 'Jai Jai Ram Manohar Lal. by the pen of Manohar Lal.'
Later be applied to the Coun for leave to amend the plaint. In the application he averred that the busines.o;
carried on under the name
Jai Jai
Ram Manohar Lal was a joint Hindu family business and the name was
not an assumed or fictitious one as it contained bis name and that of his
father. On these averments he prayed that he be allowed to descrill< himself in the cause title as 'Manohar Lal proprietor of Jai Jai Ram ttianohar
D
Lal and in paragraph 1 to state that he carried on the business in timber
in the name of 'Jai Jai Ram Manohar Lal'. °lbe application was allowed
by the trial Judge. The defendant then filed a supplementary written state·
ment raising two additional contentions : (I) that the plaintiff was not the
sole owner of the business and that his other brothers were also the owners
of the business; and (2) that the amendment took effect from the date
on which it was made and if so. the suit was barred by limitation. The
trial court rejecting theoe contentions decreed the suit.
The High Court
E
in appeal took the view that the action having been instituted in the name
of a 'non-existing penon', and Maoohar Lal having failed to aver in the
application for amendment that the action was instituted in the name of
1Jai Jai Ram Manobar Lal' on. account of a bona fide mistake or omission,
the Subordinate Judge was incompetent to grant leave to amend the plaint.
The High Coun further held that the amendment allowed by the trial Coun
toot eftect only from the date of amendment, and the action was barred
F
by limitation. Against the judgment of the High Coun the plaintiff, by
special leave, appealed to this Coun.
HELD : (i) The order passed by the High Coun could not be sustained.
Rule.. of procedure are intended tn be a handmaid to the administration
of justice. A party cannot be refused relief merely because of same mistake, negligence, inadvertence or even infraction of the rules of procedure.
!be <;:ourt always gives leave t~ amend the pleading of a party, unless it
G
IS sallsfle<I that the p~ applytog was acting ma/a {Uk or that by bis
blunder he bad caused injury to his opponent which may not be compensated for by an order of cost..
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. [25 C-E!
Purshottam Um•dbhai de Co. v. Mis. Manila/ and Sons 11961] I S.C.R.
H
982, explained and applied.
'
Amulakchand M<waram & Ors. v. Babula/ Kana/al Tallwa/a, 35 Bom.
L.R.. Sfl'), applied.
•
,,
•
•
A
B
c
D
MANOHAR LAL V. N. B. M. SUPPLY (Shah, J.)
23
In the present case the plaintiff was carrying on business as commission
agent in the name of 'Jai Jai Ram Manohar Lal'. The plaintiff was competent to sue in his own name as manager of the Hindu undivided family
to which the business belonged; he claimed to have filed the suit on behalf
of the family in the business name. The observations made by the High
Court that the application for amendment of the plaint could not be granted,
because there was no averment therein that the misdescription \Vas on
account of a bona fide mistake, and on that account the suit must fail,
could not be accepted.
There is no rule that unless in an application for
amendment of the plaint it is expressly averred that the error, omission or
misdescription is due to a bona fide mistake. the court has no power to grant
leave to amend the plaint. 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. [27 B-D]
(ii) Since the name in which the action was instituted was merely a
misdescription of the original plaintiff, no question of limitation arose and
the plaint must be deemed on amendment to have been instituted in the
name of the real plaintiff on the date on which it was originally instituted.
f27 El
(iii) The defendant raised and ... persisted in a plea \Vhich had no merit
even after the amendment was allowed by the trial court. In the circumstances he must pay the costs in this Court and the High Court. [27 F-G]
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 697 of
1966.
Appeal by special leave from the judgment and order dated
November 9, 1964 of the Allahabad High Court in First Appeal
No. 257 of 1953.
I
S. C. Manchanda, S. K. Mehta and K. L. Mehta, for the
F
G
H
appellant.
Bishan Narain and Harbans Singh, for the respondent.
The Judgment of the Court was delivered by
Shah, J. On March 11, 1950, Manohar Lal s/o Jai Jai Ram
commenced an action in the Court of the Subordinate Judge,
Nanital, for a decree for Rs. 10,139/12/- being the value of
timber supplied to the defendant-the National Building Material Supply, Gurgaon. The action was instituted in the name of
"Jai Jai Ram Manohar Lal" which was the name in which the
business was carried on. The plaintiff Manohar Lal subscribed
his signature at the foot of the plaint as "Jai J ai Ram Manohar
Lal, by the pen of Manohar Lal", and the p1ililt was also similarly verified. The defendant by its written statement contended
that the plaintiff was an unregistered firm and on that acconnt
incompetent to sue.
On July 18, 1952, the plaintiff applied for leave to amend
the plaint. Manohar Lal stated that "the business name of the
plaintiff is J ai Jai Ram Manohar Lal and therein Manohar Lal
the owner and proprietor is clearly shown and named. It is a
24
SUPllEMB COUllT llBPORTS
[ 19 70] 1 S.C.ll.
joint Hindu family business and the defendant and all knew it
that Manohar Lal whose name is there along with the father's
name is the proprietor of it.
The name is not an assumed or
fictitious one". The plaintiff on those averments applied for leave
to describe himself in the cause title as "Manohar Lal proprietor
of Jai Jai Ram Ma.nohar Lal" and in paragraph 1 to state that
he carried on the business in timber in the name of Jai Jai Ram
Manohar Lal.
Apparently no reply was filed to this
application by the defendant. The Subordinate Judge granted leave to
amend the plaint. He observed that there was no doubt that the
real plaintiff was Manohar Lal himself, that it was Manohar Lal
who intended to file and did in fact file the action,
and that
the "amendment was intended to bring what in effect had been
done in conformity with what in fact should have been done".
The defendant then filed a supplementary written statement
raising two additional contentions-( 1 ) that Manohar Lal was
not the sole owner of the business and that his other brothers
were also the owners of the business; and (2) that in any event
A
B
c
the amendment became effective from July 18, 1952, and on
D
that account the suit was barred by the law of limitation.
The Trial Judge decreed the claim for Rs. 6,568/6/3. Against
that decree an appeal was preferred to the High Court of Allahabad. The High Court being of the view that the action was
instituted in the na= of a "non-existing person" and Manohar
Lal having failed to aver in the application for amendment that
E
the action was instituted in the name of "Jai Jai Ram Manohar
Lal" on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend of the
plaint.
The High Court after making an extensive
quotation
from the judgment of this Court in Purushottam Umedbhai and
Company v. Messrs. Manila/ and Sons(')
observed that the
action could not be instituted by the
plaintiff in the business
11
name; it should bave been instituted in the name of the Kana of
the Hindu undivided family in his representative capacity or else
all the members of the joint family must join as plaintiffs.
The
Court then observed :
"The suit instituted by the ioint Hindu family liusiness in the name of an assumed business title was a suit
by a person, who did not exist and was, therefore, a
nullity.
Hence there could be no amendment of the
description of such a plaintiff who did not exist in the
eye of law.
The court below was in obvious error in
thinking
otherwise
and
allowing
the
name
of
Manohar Lal to be added as proprietor of the original
plaintiff J ai Jai Ram Manohar. Lal, which was neither
(1) [1961) IS. C. ll. 982.
G
H
'
A
II
0
F
G
H
MANOHAR LAL v. N. B. M. SUPPLY (Shah, J.)
a legal entity nor an existing person who could have
validly instituted the suit."
25
The High Court was also of the opinion that the substitution of
the name of Manohar Lal as a plaintiff during the pendency of
the action took effect from July 18, 1952, and the action must
be deemed to be instituted on that date : the amendment could
not take effect retrospectively and on the date of the amendment
the action was barred by the law of limitation. The plaintiff has
appealed to this Court with special leave.
The order passed by the High Court cannot be sustained.
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 compensed for
by an or<)er 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. In Amulakchand Mewaram and
others v. Babula/ Kana/al
Taliwala('),
Beaumont,
C.J., ill
delivering the judgment of the Bombay High Court set out the
principles applicable to cases like the present and observed
" .... the question whether there should be
an
amendmept or not really turns upon whether the name
in which the suit is brought in the name of a non-existent person or whether it is merely a misdescription of
existing persons. If the "former is the case, the suit· is
a nullity and no amendment can cure it. If the latter is
the case, prima facie, there ought to be an amendment
because the general rule, subject no doubt to certain
exceptions, is that the Court should always allow an
amendment where any loss to the opposing party can
be compensated for by costs."
In Amulakchand Mewaram's case(') a Hindu undivided
family suet! in its business name. It was not appreciated at an
early stage of the suit that in fact the firm name was not of a
partnership, but was the name okit;;jclnt Hindu family. An objection was raised by the defendant that the suit as filed was not
maintainable. An application to amend the plaint, by substituting the names of the three members of the joint family for the
name of the family firm as plaintiffs, was rejected by the Court
(!) 35 Bom. LR. 569.
12Sup Cl,'69-3
26
SUPREME COURT REPORTS
[1970) l SC.R.
of First Instance. In appeal the High Court observed that a suit
brought in the name of a firm in a case not within 0. 30 C.P.
Code being in fact a case of misdescription of existing persons,
leave to amend ought to have been given.
This Court considered a somewhat similar case
in
Purushottam Umedbhai's case(').
A firm carrying on business outside India filed a suit in the firm name in the High
Court of
Calcutta for a decree for compensation for breach of contract.
The plaintiff then applied for amendment of the plaint by describin~ the names of all the partners and striking out the name of
the firm as a mere misdescription. The application for amendment
was rejected on the view that the original plaint was no plaint
in law and it was not a case of misnomer or misdescription, but
a case of a non-existent firm or a non-exi>tent person suing. In
appeal, the High Court held that the description of the plaintifl'
by a firm name in a case where the Code of Civil Procedure did
not permit a suit to be brought in the firm name should properly
be considered a case of description of the individual partners of
the business and as such a misdescription, which in law can be
corrected and should not be considered to amount to a description
of a non-existent person.
Against the order of 'the High Court
an appeal was preferred to this Court. This Court observed (a<
p. 994) :
"Since, however, a firm is not a legal entity the
privilege of suing in the name of a firm is permissible
only to those persons who, as partners, are doin~ business in India. Such privilege is not extended to persons
who are doing business as partners outside India. Jn
their case they still have to sue in their individual names.
U, however, under some misapprehension. persons doing business as partners outside India do file a plaint in
the name of their firm they are misdcscribing themselves, as the suit instituted is by them,
they being
known col!ectivelv as a firm.
It seems, therefore, that
a plaint filed in a court in India in the name of a firm
doing business outside India iq not by itself a nullity. Jt
is a plaint by all the partners of the firm with a defective
description of themselves for the purpose of the Code
of Civil Procedure.
Jn these
circum,tances, a
civil
court €ould permit. under the provisions of s. 153 of
the Code (or possibly under 0. VI. r. I 7, about which
we say nothing). an amendment of the plaint to enahle
a proper description of the plaintiff, to appear in it in
order to a'sist the Court in determining the real que<-
tion or issue between the parties-"
-·--------·--·---· .
(I) [1961}1 S. C.R. 982.
B
c
D
E
F
G
H
A
B
c
0
E
F
G
MANOHAR LAL V, N. B. M. SUPPLY (Shah, /,)
27
These cases do no more than illustrate the well-settled rule that
all amendments should be permitted as may be necessary for the
purpose of determining the real question in controversy between
the parties, unless by permitting the amendment injustice may
result to the other side.
In the present case, the plaintiff was. carrying on business as
commission agent in the name of "Jai Jai Ram Manohar Lal".
The plaintiff was competent to sue in his own name as Manager
0f the Hindu undivided family to which the business belonged;
.1e says he sued on behalf of the family in the business name.
The observations made by the High Court that the application
for amendment of the plaint could not be granted, because there
was no averment therein that the misdescription was on account
of a bona fide mistake, and on that account the suit must fail,
cannot be accepted. In our view, there is no rule that unless in
an application for amendment of the plaint it is expressly averred
that the error, omissimi .or misdescription is due to a bona fide
mistake, the Court has no power to grant leave to amend the
plaint. 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.
Since the name in which the action was instituted was merely
a misdescription of the original plaintiff, no question of .limitation arises: the plaint must be deemed on amendment to have
been instituted in the name of the real plaintiff, on the date on
which it was originally instituted.
In our view, the order passed by the Trial Court in granting
the amendment was clearly right, and the High Court was in error
in dismissing the suit on a technicality wholly unrelated to the
merits of the dispute.
Since, all this delay has taken place and
costs· have been thrown away, because the defendant raised and
persisted in a plea which had no merit even after ihe amendment
was allowed by the Trial Court, he must pay the costs in this
Court and the High Court. The appeal is allowed and the decree
passed by the High Court is set aside. It appears that the High
Court has not dealt with the appeal on the merits. The proceedings will stand remanded to the High Court for disposal according to law on the merits of the dispute between the parties.
G.C.
Appeal allowed.