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SUPREME COURT OF INDIA
M.H. BEG, C.J.I. AND D.A. DESAI, J.
M/s. Ganesh Trading Co., Appellant
Versus
Moji Ram, Respondent.
Civil Appeal No. 1338 of 1977
Decided on 25-1-1978.
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate (Mr. O. P. Verma, Advocate with him), for Appellant; Mr. M. B. Lal, Advocate, for Respondent.
-Order 6, Rule 4 indicates cases in which particulars of its pleading must be set out by a party and Order 6, Rule 5 provides for such further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading.....” as the Court may order, and “upon such terms as to costs and otherwise, as may be just”. Order 6, Rule 7, contains prohibition against departure of proof from the pleadings except by way of amendment of pleading. After some provisions relating to special cases and circumstances, and for signing, comes Order 6, Rule 17 that provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose determining the real questions in controversy between the parties. It is therefore clear that provisions for the amendment of pleading as to costs and giving all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for inconvenience or expenses caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
It is true that if a plaintiff seeks to alter cause of action itself and to introduce indirectly through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the 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 suit 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, constitute 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 sometime be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective pleading 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 shortcomings, 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 curable if the cause of action sought to be brought out was not ab initio completely absent. Even every defective pleading 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 otherwise are complied with. It is only if the 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
-even very defective pleadings may be permitted to be cured so as to constitute a cause of action where there are none, provided necessary conditions, such as payment of either any additional Court Fee, which may be payable, or of costs of the other side are complied with. It is only if lapse of time has barred a remedy on a newly constituted cause of action that the Courts should ordinarily refuse prayers for amendment of pleadings
-it is only if the 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
Key Points: - The amendment of pleadings is intended to promote justice and not defeat rights; amendments may be allowed with costs and conditions to meet issues (!) (!) - A dissolution of a partnership does not necessarily destroy the capacity to sue in the firm's name; amendments can reflect the correct capacity of the plaintiff without altering the cause of action (!) (!) - Courts may permit amendments to cure defective pleadings or to introduce additional facts if not barred by lapse of time; introducing a new or inconsistent cause of action may be refused if it deprives the other party of rights accrued by delay (!) (!) (!) (!)
JUDGMENT
BEG, C.J.I. :— 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 of 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.
2. 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 may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
3. 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 divided into paragraphs, numbered consecutively, Dates, sums and numbers shall be expressed in figures."
Order 6, Rule 4 indicates cases in which particulars 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, Roule 5 provides for such "further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading ....."as the Court may order, and "upon such terms, as to costs 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, and 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 allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
4. It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its ommissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.
5. 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 to the 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 suit 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. constitute 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 ess
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