The Supreme Court Bench of Justice D.Y. Chandrachud and Justice Hemant Gupta were hearing an appeal filed against the order of the High Court upholding the trial court’s order dismissing the appellant’s permission to seek amendment of the plaint. The Appellant had filed a suit for recovery of Rs. 25 Lakhs advanced to the Respondent and had filed the said suit under his own name being the Director of Siddharth Garments Pvt Ltd claiming the said amount along with interest. The Appellant filed the suit through a Special Power of Attorney executed in favour of one Mr. Naveen Gupta. In the Written Statement, objection was raised that the suit was not filed by the Appellant and the Power of Attorney is neither valid or admissible. During the stage of examination of Mr. Gupta, an amendment was sought on the grounds that the counsel for the Appellant had filed the suit under a wrong title and as such the suit was to be brought out in the name of the Company as the said loan was advance through the Company. The Trial Court rejected the amendment stating that the amendment would change the nature of the suit from being a suit by an individual to a suit by a Private Limited Company. In appeal, the High Court upheld the order of the trial court, hence the appeal.

The Bench referred to its judgment in State of Maharashtra vs. Hindustan Construction Company Limited (2010) 4 SCC 518 which held that:-

“17. Insofar as the Code of Civil Procedure, 1908 (for short “CPC”) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that 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.”

The Bench also referred to its judgment in Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , wherein the aspect of curability of procedural defects and irregularities and its effect on substantive rights was dealt with as under:

“17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are:

  • where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance;
  • where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
  • where the non-compliance or violation is proved to be deliberate or mischievous;
  • where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court;
  • in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

The Bench set aside the order of the High Court and the Trial Court and allowed the amendment without any added costs.


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