M/s Pneu-Mech Engineers vs M/s Asmarox Private Limited

Mrs. Prabha Sridevan, J.—The plaintiff is the petitioner. The petitioner filed the suit for relief of Rs. 49,110.73 together with interest.

Originally, the short cause title described the plaintiff as this:

M/s Pneu - Mech - Engineers represented by its Manager Mr. M.H. Krishnaswamy, 209 Thambu Chetty Street, Madras - 600 001

and in the long cause title, the plaintiff was described as follows:

The plaintiff is a Private Limited Company incorporated and registered under the Indian Companies Act, 1913, carrying on the business of

supplying spare parts for machineries, having its office at No. 209, Thambu Chetty Street, Madras -600 001, represented by its Manager Mr.

M.H. Krishnaswamy"".

The suit was filed in 1996 and numbered as O.S. No. 5476 of 1996. In 1999, the petitioner filed I.A. No. 4117 of 1999 under Order 6 Rule 17

of CPC for amendment of the plaint. In the affidavit filed in support of the petition, it was stated that the description of the plaintiff, as private

limited company was a misdescription and the plaintiff was only a partnership firm duly registered under Indian Partnership Act and hence the

amendment was sought for.

The respondent resisted the application denying the averments contained in the said affidavit and also on the ground that the application was

highly belated.

The learned I Assistant Judge dismissed the application. Against that, the present Civil Revision Petition has been filed.

Mr. G. Vasudevan, learned counsel for the petitioner submitted that this was only a misdescription and hence if the amendment was not

ordered, it would result in grievous hardship. He relied on several decisions in support of his contentions:

Monghibai v. Cooverji Umersey (Lord Porter 50 L.W.926 = AIR 1939 PC 170);

Murari Mohan Deb v. Secretary to the Government of India and others ((1985) 3 SCC 120);

Bal Niketan Nursery School v. Kesari Prasad (100 L.W. 121 (SC);

Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, lashkar and another (A.I.R. 1954 M.P. 156);

Dinanth Kumar v. Nishi Kanta Kumar (A.I.R. 1952 Calcutta 102);

United Bank of India v. Naresh Kumar and others (1997 II M.L.J. 1 (SC);

Purushottam Umedbhai & Co., v. M/s Manilal and Sons (1961 SCR 982);

Mr. T. Viswanatha Rao, learned counsel for the respondent submitted that this was pure abuse of process of law and ought not to be allowed

and that the Lower Court had rightly dismissed the application. He also pointed out that even in the written statement filed as early as 1998, a

specific point had been raised as to whether the person, who had signed the plaint was an authorised signatory. Not having rectified the mistake at

the earlier juncture, it was not open to the petitioner to come forward belatedly for such a relief.

This is a case of misdescription. The transaction between the parties is the same and the cause of action that has given rise to the suit is also the

same. It is only the name of the party that is sought to be altered. Even a cursory reading of the written statement shows that the respondent is

aware of the nature of the transaction that is referred to in the plaint and in fact admits that there were certain transactions of supply of goods-

between the parties. Therefore, this is not a case where the respondent can complain that an entirely different cause of action or a suit of a different

nature is sought to be introduced by way of this amendment. In fact, what is sought for in this application is not for an addition or substitution of a

new party. It merely makes clear what was perhaps clouded by a little uncertainty by reason of the mistake. The learned counsel for the petitioner

also referred to Sec.21 of the Limitation Act which deals with the effect of substituting or adding new plaintiff or defendant.

S.21(1) where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have

been instituted when he was so made a party:

and it pertinently points out that when omission to include a new plaintiff or defendant was due to a mistake, in good faith, then Court has the

discretion to direct that, the suit, as regards, such plaintiff or defendant shall be deemed to have been instituted on any date prior to such inclusion;

since otherwise the suit shall be deemed to have been instituted only on the date when such new plaintiff or defendant as the case may be, was

made a party. This case is not a case of adding a new plaintiff or a new party, but a case of erroneous description or misdescription.

In the decision reported in Purashottam Umedbhai & Co. v. M/s. Manilal and Sons (1961 SCR 982),the suit was originally filed in the name of

a Foreign Firm and signed and verified by a power of attorney. After about six years, the plaintiffs filed an application for amendment of the plaint

to have the name of firm struck off and in its place to bring on record the names of five partners of the firm. The Supreme Court held that it was

only a case where the partners had misdescribed themselves and the Court should permit an amendment of the plaint to enable a proper

description of the plaintiff to appear in it in order to assist the court in determining the real question or issue between the parties.

The decision reported in Laxmikumar Srinivas Das v. Krishnaram Baldev Bank Lashkar and another(A.I.R. 1954 Madhya Bharat 156) was a

case where the suit was instituted in the name of a wrong person. The court held that the mistake was bona fide.

In the decision reported in Bal Niketan Nursery School v. Kesari Prasad (100 L.W.121 SC), the original cause title referred to the name of the

school represented through the Manager of the school. Subsequently, an application was filed for correcting the name of the plaintiff by substituting

the name of the Society by Secretary in place of the name of the school and manager i.e. instead of Bal Niketan Nursery School through Dr. Om

Prakash, Manger of the School, the correction sought for was Smt. Chandramukhi Ram Saran Shiksha Samity rep. by secretary. The Supreme

Court after considering several decisions ordered the above correction of the mis-description by saying;

The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the

courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice....

In my opinion, this decision actually settles the question before this court now. The petitioner had also filed two documents, Ex.P.1 being the

registrar of Firms Certificate to show that the firm had been duly registered. The court below without going into question as to whether there was a

bonafide mistake or a misdescription or the name of the plaintiff, had embarked upon a discussion as to who should sign and verify the plaint when

the plaintiff is a private limited company. That question is not really relevant to the issue. It is the petitioner''s case that there was a genuine

misdescription of the name of the plaintiff. It has also produced the Registrar of Firms Certificate to show that the description of the petitioner as

set out in the present application is the correct one. As we have already seen above, the cause of action has not changed and the respondent is

well aware of the nature of the transaction between the parties. Therefore, the respondent will not suffer by the application for amendment being

ordered. On the contrary, the petitioner will suffer injury, if the petitioner is not properly described. Therefore, the correction of the misdescription

has to be ordered. It is made clear that it is open to the respondent to file an additional written statement raising all defenses that are available to

him including the question of Limitation and the authority of the person, who originally signed the plaint. The order of the Court below is therefore

set aside. The application for amendment sought for by the petitioner is ordered as prayed. In view of the delay, however, the application is

ordered on terms of Rs. 500/- within two weeks. Consequently, the connected C.M.P. is closed.