Gujarat High Court
Ambika Gruh Udhyog Through Its Partners vs Heirs Of Decd. Pankajbhai Ambalal on 25 April, 2023
C/SCA/2615/2023 ORDER DATED: 25/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2615 of 2023
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AMBIKA GRUH UDHYOG THROUGH ITS PARTNERS
Versus
HEIRS OF DECD. PANKAJBHAI AMBALAL
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Appearance:
MR VISHAL C MEHTA(6152) for the Petitioner(s) No. 1,2,3
MR K B VIRVADIYA(11272) for the Respondent(s) No. 1.1,1.2,1.3
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 25/04/2023
ORAL ORDER
1. The present petition is filed by the petitioners -
original plaintiffs challenging the impugned order passed below Exh.23 in Regular Civil Suit No.78 of 2020 by the trial Court i.e. 3 rd Additional Chief Judicial Magistrate and Senior Civil Judge, Patan dated 17.12.2022, by which, the application seeking amendment in the cause title of the plaint is rejected.
2. Heard learned advocates.
3.1 Mr.Vishal Mehta, learned advocate for the petitioners has submitted by drawing my attention towards the averments made in the plaint that in the plaint itself, Page 1 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 the subject matter is mentioned as Partnership Firm i.e. the dissolution of the partnership firm and further, in the averments made in the entire pleadings, it transpires that the suit pertains to the partnership firm which is in the name of Ambika Gruh Udyog. He has also drawn my attention towards the cause title of the suit whereby it seems that the defendants were joined in the individual capacity instead of the legal heirs of the partner of the said firm.
Thereafter, he has drawn my attention towards the application at Exh.23 and has submitted that he asserts the amendment to the effect to describe the 'heirs of Pankajbhai
- partner of the Ambika Gruh Udyog' only.
3.2 He has also drawn my attention towards the findings of the trial Court, by which the application which is essential under Order VI Rule 17 of the Code of Civil Procedure, 1908, is rejected, wherein the submissions were recorded and thereafter the trial Court has dismissed that application, mainly on the ground that amendment, which is now sought for by the present petitioner - plaintiff in the suit, is at belated stage and after commencement of the trial.
He has drawn attention that the trial Court has also considered the merits of the matter by observing that such dispute can be adjudicated after full-fledged trail as the property is of the partnership firm or proprietorship firm and Page 2 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 thereby has entered into the merits of the matter.
3.3 He has further submitted that in the entire memo of plaint, there is a reference for the claim pertains to dispute about partnership firm, however due to inadvertent mistake committed by the advocate in drafting the plaint, in the cause title, the word 'partner' of the partnership firm is not mentioned - 'the legal heirs of the partner deceased Shri Pankajbhai Ambalal'.
3.4 In support of his submissions, he has relied upon the provisions of Order VI Rule 17 read with Section 151 of the Code. He has also referred the following decisions of this Court as well as of the Hon'ble Apex Court in support of his submissions :
(i) 2011 (0) AIJEL - HC 226360 - Food
Corporation of India versus Jagdish
Transport Service (paras 5, 7 and 8)
(ii) (2012) 11 SCC 341 - Abdul Rehman
versus Mohd. Ruldu (paras 7 to 10, 15
and 16)
(iii) (1969) 1 SCC 869 - Jai Jai Ram
Manohar Lal versus National Building
Material Supply, Gurgaon (paras 5, 7 and
8) Page 3 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 3.5 He has submitted that in view of above, amendment should be allowed by the trial Court. He has further submitted that due to oversight or bona fide mistake of the advocate, the name of the defendant mentioned in the cause title is required to be corrected in the facts and circumstances of the present case and therefore, he prays to allow this petition.
4.1 Per contra, learned advocate Mr.Nishit Gandhi for the respondents has drawn the attention of this Court towards some dates, which are relevant as per his submissions to decide this petition. He has submitted that the suit is filed by the plaintiffs on 11.12.2020, wherein an application under Order VII Rule 11 of the Code is filed by the present respondents, which was rejected by the trial Court vide order dated 08.03.2021. He has submitted that in that application under Order VII Rule 11 of the Code, there is a dispute about the maintainability of the suit on the ground that the suit is not against the partnership firm and therefore, no cause of action has been arisen. However, though that application is rejected by the trial Court, the present petitioners could have filed the application for correction in the status of the defendants at that point of time. He has further submitted that he has filed written Page 4 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 statement and thereafter the trial Court has framed the issues. At that time also, the petitioners have not preferred the application for amendment under Order VI Rule 17 of the Code. He has submitted that it is still verse that though the application is affirmed on 11.02.2021, but filed on 07.05.2022, that is much after the issues were framed by the trial Court and on bare reading of that application, the petitioners have not given any explanation that as to why the application for amendment is filed at such belated stage.
Therefore, in view of proviso to Order VI Rule 17 of the Code, the trial Court has rightly rejected the application filed by the petitioners at such belated stage, more particularly after framing of issues and it is not satisfactory explained the delay in the said application.
4.2 He has relied upon the decisions of the Hon'ble Apex Court in the case of Pandit Malhari Mahale versus Monika Pandit Mahale and others reported in (2020) 11 SCC 549, more particularly paras 2 to 7 thereof and has submitted that this Court should not interfere in it when the trial Court has rightly decided the application by considering the provisions of law and also considering the fact that there is no justifiable reasons given for filing of said application at such belated stage. He therefore submits that this petition may be dismissed.
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5. I have heard learned advocates for the respective parties. I have considered the rival submissions made at the bar by the learned advocates. I have perused the impugned order passed by the trial Court. I have also considered the material on record and considering the same, the following facts are emerged :
5.1 He has submitted that on 31.05.1982, the petitioners and the predecessors of the respondents have started a partnership firm in the name of 'Ambika Gruh Udyog' and carried out business of 'Tutti Frutti' and pursuant to that, on 23.09.1982, the sales tax number is also issued by the competent authority to the said partnership firm. The predecessor of the respondents being an elder brother of the present petitioners was managing the day-to-
day affairs of the said partnership firm, including the accounts and finance and the petitioners and predecessor of the respondents were the partners of the said firm on the basis of the equal share.
Upon sudden death of the predecessor of the respondents on 22.11.2019 due to cardiac attack, the petitioners are regularly managing the day-to-day affairs of the said partnership firm.
Page 6 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023C/SCA/2615/2023 ORDER DATED: 25/04/2023 However, with great shock and surprise, the petitioners were intimated by the respondents that they have now no right, interest and share in the said partnership firm, as the same belongs to the predecessor - deceased Pankajbhai. Ultimately, notice was issued and on receipt of the said, the defendants have replied the said notice in very vague manner.
5.2 Therefore, the petitioners has filed a suit being Regular Civil Suit No.78 of 2020 against the respondents for dissolution of the partnership firm and for declaration and permanent injunction, along with an application for interim relief.
5.3 Thereafter, the present respondents have filed an application at Exh.10 under Order VII Rule 11 of the Code.
After hearing the parties, the said application was rejected by the trial Court vide order dated 08.03.2021.
5.4 Thereafter, the respondents have filed their written statement at Exh.15.
5.5 The trial Court has rejected the application at Exh.5 for interim injunction.
Page 7 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023C/SCA/2615/2023 ORDER DATED: 25/04/2023 5.6 Thereafter, the trial Court has framed the issues.
5.7 The petitioners have preferred an application Exh.23 for amendment in the cause title, which is the subject matter of the present petition, dated 11.02.2021, but the same was affirmed and filed after some period i.e. on 07.05.2022 due to inadvertent mistake on the part of the advocate of the petitioners, which was rejected by the trial Court vide order dated 17.12.2022 and hence, this petition.
6.1 While going through the averments made in the plaint as well as considering the facts noted above, it transpires that the subject matter mentioned in the plaint itself is for dissolution of the partnership firm. Not only that, in almost every paragraphs, the description about late Pankajbhai is mentioned as 'partner of the firm', which is constituted on 31.05.1982 in the name of Ambika Gruh Udyog. Even in the plaint, the partnership firm is mentioned in the cause of action also. However, it transpires that, in the cause title, the name of Pankajbhai is mentioned as in his individual capacity and not as partner.
6.2 While going through the averments made in the application at Exh.23, it is undisputed fact that the application is affirmed on 11.02.2021, however, the reasons as Page 8 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 stated in the present petition that due to inadvertent mistake of the advocate, the petitioner could not file the application prior to framing of the issues. If such amendment will be granted, the nature of the suit is not going to be changed.
Neither the relief prayed in the plaint is going to be amended nor changed, if this amendment is to be granted.
6.3 For more clarity, the cause title of the plaint shown qua the defendants - present respondents is as under :
"Plaintiffs : xxx
Versus
Defendants : Legal heirs of deceased
Pankajbhai Ambalal
xxx "
Whereas the cause title of the plaint which is sought to be corrected by the plaintiffs qua the defendants -
present respondents is as under :
"Plaintiffs : xxx
Versus
Defendants : Legal heirs of deceased
Pankajbhai Ambalal -
a partner of the partnership
Page 9 of 26
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C/SCA/2615/2023 ORDER DATED: 25/04/2023
firm viz., Ambika Gruh
Udyog
xxx "
6.4.1 At this stage, it would be fruitful to refer to the
decision of of this Court in the case of Food Corporation of India (supra), more particularly paras 5, 7 and 8 thereof, which are as under :
" 5. I have heard both the sides. I am of the opinion that application Exh.35 though filed under Order 1 Rule 10(2) of the Code, the same can be treated as an application under Order 6 Rule 17 since the prayer made in paragraph No.11 of the application is with regard to amend the cause-title of the plaint. I am of the opinion that when the plaintiff has averred in paragraph No.2 of the plaint that the defendant was running a transport service as a sole proprietor, through oversight and bona fide mistake, name of Mr.Jagdish Katiya as a sole proprietor is not typed in the cause- title. In case of Jai Jai Ram Manohar Lal (Supra), it has been held by the Apex Court that "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 Page 10 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 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 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." It is further held in the said judgment that "it is a 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 paragraph No.8 of the said judgment, it has been categorically observed that "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 the judgment relied upon by learned advocate Mr.Thakkar in case of Vijaya Park Co-op. Housing Society (Supra), it was held that there was not a mere misdiscreption in the name of the plaintiff for which, the amendment was sought by the party. The facts of that case are not applicable in the present case. Similar are the facts in the case of Rajendra Nath Tikku (Supra) wherein, it is held that the intention of the plaintiff was to file a suit against the some other person than mentioned in the cause-title and, therefore, amendment which was sought by the plaintiff was rejected.
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7. In case of Usha Devi V/s. Rijwan Ahmad reported in AIR 2008 SC 1147, it has been observed that "the merit of the amendment is hardly a relevant consideration and it will be open to the defendants respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement."
8. I am of the opinion that the contentions which are raised in reply to the application of amendment, the same can be raised in the written statement by amending the same after the plaint is amended."
Considering the above ratio, this Court has found that if the amendment is allowed, the real controversy between the parties shall be decided by the Court and no injustice would be caused to the defendants. This Court has also recorded that due to some mistake or due to oversight, the name of the proprietor is not typed in the cause title.
This Court finds that considering the above view, it is squarely applicable in the facts of the present case.
6.4.2 Further, in the case of Abdul Rehman (supra), the Hon'ble Apex Court has observed as under :
" 7. It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any Page 12 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
8. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised Page 13 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.
9. It is true that originally the appellants have approached the trial Court with a prayer for permanent prohibitory injunction restraining respondent Nos. 1-3 herein from forcible and illegal dispossession of the appellants herein from the land in dispute. Respondent Nos. 1-3 herein (Defendant Nos. 1-3 therein) filed written statement wherein they specifically alleged that they have stepped into the shoes of Ramzanan and Smt. Bashiran and Rashidan on the basis of the sale deeds dated 25.08.2003. It is the claim of the appellants that the above said Ramzanan and Smt. Bashiran and Rashidan have no concern with the ownership of the land in dispute and no right to alienate the suit land to the defendants or anybody else. In view of the stand taken by the defendants in their written statement, in the application filed under Order VI Rule 17 of the Code, the appellants have Page 14 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 specifically raised that the alleged sale deed Nos. 1810 and 1811 dated 25.08.2003 in favour of defendant Nos. 1-3 executed by Ramzanan and Bashiran and Rashidan are liable to be set aside and have no effect on the rights of the plaintiffs and Saifur-Rehman qua the suit land and the mutation Nos. 781 and 782 sanctioned on the basis of above noted sale deeds dated 25.08.2003 are also liable to be set aside. In view of the claim of the appellants, we verified the necessary averments in the written statement of Defendant Nos. 1 and 3 and we agree with the stand of the appellants.
10. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the un-amended plaint. As rightly pointed out by Ms. Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the un-amended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the un- amended plaint and, therefore, the relief of cancellation of sale deeds as sought by amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial Court and High Court cannot be sustained. It is not in Page 15 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should have been caused to respondent Nos. 1-3 (defendant Nos. 1-3 therein) if the amendments were allowed and would in fact avoid multiciplity of litigation.
15. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.
16. In the light of various principles which we have discussed and the factual matrix as demonstrated by learned counsel for the appellants, we are satisfied that the appellants have made out a case for amendment and by allowing the same, the respondents herein (Defendant Nos. 1-3) are in no way prejudiced and they are also entitled to file additional written statement if they so desire. Accordingly, the order of Page 16 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 the trial court dated 06.06.2007 dismissing the application for amendment of plaint in Suit No. 320 of 2003 as well as the High Court in Civil Revision No. 4486 of 2007 dated 13.11.2007 are set aside. The application for amendment is allowed. Since the suit is of the year 2003, we direct the trial Court to dispose of the same within a period of six months from the date of receipt of copy of the judgment after affording opportunity to all the parties concerned. The appeal is allowed. No order as to costs."
6.4.3 Further, in the case of Jai Jai Ram Manohar Lal (supra), the Hon'ble Apex Court has observed as under :
" 5. 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 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. In Amulakchand Mewaram V/s. Babulal Kanalal, Beaumont, C. J., in Page 17 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 delivering the Judgement of the Bombay High Court set out the principles applicable to cases like the present and observed :
". . . . . . . . the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought is the name of a nonexistent 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 sued 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 of a joint 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 of first instance. In appeal the High Court observed that a suit brought in the name of a firm in a case not within Or. 30 of the Civil Procedure Code Page 18 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 being in fact a case of misdescription of existing persons, leave to amend ought to have been given.
7. 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; be says he sued on behalf of the family in the business name. The observation 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, 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.
8. 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."
Page 19 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023C/SCA/2615/2023 ORDER DATED: 25/04/2023 6.4.4 The above decisions are also helpful to the petitioners to some extent in the facts of the present case.
6.5 The decision cited by learned advocate for the respondents in the case of Pandit Malhari Mahale (supra), more particularly paras 2 to 7 thereof, which are as under :
"2. We have heard learned counsel for the appellant. Despite service, no one is present on behalf of the respondents. This appeal has been filed against the judgment and order dated 14.08.2018 passed by the High Court in W.P. (C) No. 11263/2016, by which the High Court dismissed the writ petition.
3. A suit for partition was filed by the respondents i.e. wife and children of the appellant. In the suit, evidence started and thereafter an application for amendment of plaint was filed by plaintiff No.3. The amendment was objected by the defendant (appellant herein). However, the learned Civil Judge by order dated 09.03.2016 allowed the application against which the writ petition was filed which was dismissed.
4. Learned counsel for the appellant submits that evidence had already begun and in view of Order VI Rule 16 of the Code of Civil Procedure, 1908 the amendment could not have been considered unless the Court return a finding that in spite of due diligence, the party could not have raised the matter before the commencement of the trial.Page 20 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023
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5. We have considered the submissions of learned counsel for the appellant and perused the record.
6. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment.
7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. [(2009) 2 SCC 409 ], this Court observed in para 19 as under :
"19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint." "Page 21 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023
C/SCA/2615/2023 ORDER DATED: 25/04/2023 6.6 There is no dispute about the observations made by the Hon'ble Apex Court in the above decision cited by the learned advocate for the respondents, but considering the facts and circumstances of the present case, it would not be helpful to the respondent. At this stage, it would be refer to the judgment of the Hon'ble Apex Court in the case of Life Insurance Corporation of India versus Sanjeev Builders Private Limited reported in AIR 2022 SC 4256, more particularly para 70 thereof, which is as under :
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed Page 22 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
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(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where Page 24 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi and Ors., 2022 SCC OnLine Del 1897) : (AIROnline 2022 Del 1797)."
In view of above observations, the Court has to consider the application for amendment in liberal manner.
7. In the facts and circumstances of the case as well as keeping in mind the ratio laid down by the Hon'ble Apex Court as well as by this Hon'ble Court as noted above, this petition needs to be allowed, by quashing and setting aside the impugned order, more particularly, considering the fact that the petitioner has already pleaded necessary averments in the plaint, except mentioning 'the partner of the partnership firm' in the cause title due to some inadvertent mistake.
8. In view of above, the following order is passed.
8.1 This petition is allowed.
8.2 The impugned order passed below Exh.23 in Regular Civil Suit No.78 of 2020 by the trial Court i.e. 3 rd Additional Chief Judicial Magistrate and Senior Civil Judge, Page 25 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023 C/SCA/2615/2023 ORDER DATED: 25/04/2023 Patan dated 17.12.2022 is quashed and set aside.
8.3 The application at Exh.23 filed by the petitioners in Regular Civil Suit No.78 of 2020 is hereby allowed.
8.4 Such amendment shall be carried out by the petitioners before the trial Court within a period of two weeks from the date of receipt of copy of this order.
8.5 The trial Court shall proceed further with the proceedings of the suit in accordance with law, by giving proper opportunity to the parties and decide the suit, as expeditiously as possible.
Direct service is permitted.
(SANDEEP N. BHATT,J) M.H. DAVE Page 26 of 26 Downloaded on : Thu Apr 27 20:49:40 IST 2023