Misra Banoo vs Jammu & Kashmir Bank Ltd.

This motion of revision, which is directed against the order of learned Additional District Judge (Bank Cases) Srinagar, dated 06.12.2000,

recorded in Civil Original Suit titled as Jammu and Kashmir Bank vs. M/s Zahid/Apsra Guest House, through its sole Prop. Mst. Misra Banoo and

anr, pending decision before 'him, stems out of those circumstances which are summarised as :

On 01.07.1991 the respondentplaintiff Bank came to institute suit for recovery of Rs. 6,90,983/ against M/s Zahid/Apsara Guest House,

through its sole proprietor Mst. Misra Banoo and another be fore this court. This court, by virtue of its order dated 12.07.1995 came to transfer

the suit file to the court of learned District Judge (Bank Cases) Srinagar, as it then was on 30.09.2000, after the written statements by the

defendants were filed and issues were framed, the respondent plaintiff Bank came to seek indulgence of the Court through the medium of an

application for leave to amend the cause title of the plaint by showing the name of defendant No. 1 as Mst. Misra Banoo (Borrower) wife of Kh.

Ghulam Nabi Kawa, resident of 72 Bishamber Nagar, Khayam Road, Srinagar (Sole Porp. of M/s Zahid/Apsra Guest, Bishamber Nagar,

Khayam Road, Srinagar) by stating therein that the proposed amendment shall not substitute the existing defendant by new defendant as it is none

else than the said Mst. Misra Banoo who was intended to be defendant through the present description and that the proposed amendment shall not

cause injustice to the opposite party. The defendants resisted the petition by filing their objections and the trial court after hearing the parties came

to allow the amendment of the plaint, as prayed for, by virtue of its order, which is impugned in this petition.

The stand of Mr. Z.A. Qureshi, learned counsel, appearing on behalf of the petitioner, is that the proposed amendment amounts to substitution

of a new defendant in the plaint is place of the present defendant No. 1, who is a non entity, when the claim of the respondentplaintiff Bank has

become time barred against the petitioner Mst. Misra Banoo, who is sought to be substituted as defendant No. 1. That the proposed amendment

shall cause great injustice to the petitioner.

On the other hand, the stand of Mr. Javed Iqbal, learned counsel appearing for the respondentplaintiff Bank, is that due to inadvertence the

name of defendant has been shown as Zahid/Apsura Guest House under the proprietorship of Mst. Misra Banoo, when the loan has

beensanctioned and availed of by said Misra Banoo in her personal capacity. This being a case of misdescription of parties, therefore, leave to

amend the cause title of the plaint de serves to be granted under law.

Considered the rival contentions of learned counsel for the parties.

Perusal of the plaint as also the loan documents which are the part of the plaint, reveals that pursuant to the request of revisionist Mst. Misra

Banoo, a demand loan of Rs. 1,00,000/ was sanctioned and availed by her against execution of loan documents dated 10.04.1979. This loan, later

on came to be enhanced to Rs. 2,00,000/ and was availed of against consideration of another set of documents executed by the revisionist. This

loan, on both the occasions was further secured by third party guarantee of defendant No. 2. This so called guarantor is none else but the husband

of said Mst. Misra Banoo, revisionist. In para No. 8 of the plaint it is averred that, ""that the defendant No. 1 initially started a Guest House with the

loan amount in the name and style of ""Zahid Guest House"". It is submitted that the name and style of guest house was later on changed to Apsra

Guest House ...."" In reply to this para of the plaint the defendant No. 1, in her written statement has stated, ""that Misra Banoo did start a guest

house in the name and style of Zahid Guest house which was late on changed to Apsra Guest House"". All this goes to show that Mst. Misra

Banoo, the revisionist availed loan facility in her personal capacity for running a Guest House which was firstly named as ""Zahid Guest House"" and

later on its name came to be changed as ""Apsra Guest House

From the examination of said para No. 8 of the plaint and the reply of the defendant No. 1 in its written statement to this para, it appears that

due to inadvertence the plaintiffBank came to institute the suit against Zahid/Apsra Guest House under the proprietorship of said Mst. Misra

Banoo, the revisionist, when the suit ought to have been instituted against Mst. Misra Banoo in personal capacity.

This being so, it is a clear case of misdescription of the defendant and not the substitution. In case of a misdescription of a defendant the plaint

can be amended at any time by the plaintiff for the purpose of showing the correct description of the defendant and the question of limitation,

causing injustice or irreparable loss to the opposite party cannot arise. In this behalf reference is made to a case titled as Kurapati Venkata Mallaya

and another vs. Thondepu Ramaswamy and anr. reported as AIR 1964Sc, 818. It is observed that ail amendments are to be allowed for

determining the real questions in controversy in a suit between the parties unless the same are not bonafide or barred by limitation. A prayer

seeking amendment to correct the mis description of subject matter of the suit, which has occurred due to mistake, negligence or inadvertence,

cannot be refused. In this behalf reference is made to 2001 S.L.J., 247.

In a case title as Haridas Aildas Thadani and ors vs. Godrej Rustum Kermani, reported as AIR 1983 SC, 319, their Lordships of the Apex

Court has held that court should be extremely liberal in granting a prayer of amendment of pleadings unless serious injustice or irreparable loss is

caused to the otherside. The revisional court also ought not to interfere with a discretion exercised in allowing the amendment in absence of cogent

reasons or compelling circumstances. AIR 1953, J&K and SLJ 1987, 301, relied by the learned counsel for the petitioner are not applicable to the

facts of this case.

Viewed thus, the impugned order does not suffer with any material irregularity or jurisdictional error. Therefore, the motion of revision fails and

is accordingly dismissed.

Record be sent together with a copy of this order to the trial court forth with a direction to expedite the disposal of the case. The learned

counsel for the parties are directed to cause appearance of their clients before the trial court on 18.12.2001.