JUDGMENT
H.N. Nagamohan Das, J.
1. This Regular First Appeal arises out of judgment and decree dated 27.3.2002 in O.S. No. 5309/1990 passed by the XI Addl. City Civil Judge, Bangalore City dismissing the suit of plaintiff for specific performance for lease of schedule property.
2. The appellants are the plaintiffs. Respondents are the defendants. The parties in this appeal are referred to by their status before the Trial Court.
3. First defendant is a public charitable trust. Defendants 2 to 4 are the Trustees. Defendants are the owners of schedule property. Plaintiffs are engaged in developing modern building/complexes. The defendants invited tenders in the month of May/June 1980 for development of schedule property. Plaintiffs through their letter dated 17.6.1980 offered to develop the schedule property. According to the plaintiffs, after long correspondence, there came to be a concluded contract for development of schedule property. Since the defendants failed to perform their part of obligation and refused to lease the schedule property for development, the plaintiffs filed O.S. No. 5309/1990 for decree of specific performance to lease the schedule property by executing a registered lease deed, for permanent injunction and for other reliefs. Defendants entered appearance before the trial Court, filed written statement denying the very status of plaintiffs and contended that there was no concluded contract. The defendants opposed the claim of the plaintiffs. On the basis of the pleadings the Trial Court framed the following issues:
(i) Do the plaintiffs prove concluded contract of agreement of lease by the defendants?
(ii) Whether the plaintiffs were ever ready to perform their part of contract?
(iii) Do the plaintiffs prove committing breach by the defendants?
(iv) Who will suffer greater hardship by grant of refusal of decree?
(v) Whether the defendant is liable to execute lease deed under Section 36 of the Indian Trust Act 1882?
(vi) Whether the plaintiffs are entitled for a decree for the specific performance?
(vii) Whether the plaintiffs are entitled for the possession of the suit property?
4. Before the Trial Court the parties adduced evidence and addressed arguments. The trial Court by considering the pleadings, evidence and arguments of both the parities decreed O.S.No. 5309/1990 vide judgment dated 10.3.1998. Aggrieved by this judgment and decree of trial Court, the defendants filed an appeal before this Court in RFA No. 405/1998. During the pendency of the appeal, the defendants filed an application seeking amendment of the written statement to incorporate one additional paragraph contending that there is no agreement or contract between the plaintiffs and the defendants. The correspondence was with a firm by name M/s. Mahesh Centre which is a partnership concern. The draft agreement relied on by the plaintiffs was with the partnership firm and plaintiffs are not a partnership firm but the same is proprietary concern. This Court allowed the amendment of written statement. Consequently, this Court vide judgment dated 21.9.2001 allowed RFA No. 405/1998, set aside the judgment and decree of the trial court and remanded the matter to the trial Court for disposal on merits.
5. After remand, the plaintiffs filed an application to amend the cause title in the plaint stating that first plaintiff is a joint family firm. The trial Court vide order dated 18.1.2002 allowed the application of the plaintiffs to amend the cause title with certain observations. After amendment of pleadings, the trial Court framed the following additional issues:
(i) Whether the suit is maintainable?
(ii) Whether the sale agreement is in favour of the firm or proprietary concern?
(iii) Whether the defendants prove that the suit is barred by limitation?
(iv) Whether the defendants prove that there is no privity of contract with the plaintiffs?
6. After remand, both the parties adduced additional evidence and produced additional documents. On the side of the plaintiffs PW.1 and PW.2 are examined, Ex.P.1 to P.75 are marked. Defendants examined one witness as DW.1. The trial Court after hearing both the parties and by considering the pleadings, oral and documentary evidence on record, by its judgment dated 23.7.2002 dismissed the suit of plaintiffs. Hence this appeal.
7. Sri. U.L. Bhat, learned Senior Counsel for the appellants contend, that the trial Court committed an error in holding that there is no concluded contract between the parties. The defendants were aware of the true identity of the plaintiffs. Through out it was the second plaintiff – Sri. D.N. Nanjaraj who negotiated, corresponded and settled the terms of contract between the parties. The Court below committed an error in not considering the material on record to justify that the first plaintiff is a Hindu joint family firm. This Court in R.F.A. No. 405/1998 remanded the matter only on the question of identity of party and the finding of the trial Court on all other issues was not disturbed. Now the trial Court under the impugned judgment and decree gave finding on all issues and as such the same is contrary to the order of remand by this Court. The trial Court committed an error in not drawing adverse inference against the defendants for not examining the Chairman of Trust – Sri. Krishna Swamy Reddy who was negotiating with the plaintiff. The amendment of plaint relates back to the date of institution of the suit and as such the question of limitation will not arise. The trial Court committed an error in holding that the plaintiffs amended the plaint with bad faith to overcome the bar under Section 69 of the Partnership Act.
8. Per contra, Sri. A.N. Jayaram, learned senior counsel for the defendants support the judgment of the trial Court. The HUF was never the negotiating party and as such it had no right to seek enforcement of alleged contract. The plaintiffs have only amended the cause title of the plaint without corresponding pleading in the plaint. The trial Court allowed the amendment of plaint reserving the rights of the defendant. Therefore the claim of plaintiffs is barred by limitation. From the documents and oral evidence it is clear that second plaintiff represented the defendants’ trust that he is the partner of registered firm called M/s. Mahesh Centre. When the defendants called upon the plaintiffs to produce the registration certificate of the firm they failed to produce the same. As such, the contract was not concluded. On account of default of plaintiffs, the lease transaction was not completed.
9. Heard arguments on both the side, perused the entire appeal papers and trial Court records. Though number of decisions are cited by the learned Senior counsel on both the side, relevant citations are referred to in this judgment.
10. In the year 1990, the suit was filed by the plaintiffs 1 and 2. Plaintiff 1 was described as M/s Mahesh Centre a proprietary concern represented by its proprietor Sri D.L. Nanjaraj. The second plaintiff is Sri D.L. Nanjaraj. After remand from this Court in RFA 405/1998 vide judgment dated 21.9.2001, the plaintiffs filed an application to amend the cause title of the plaint. The proposed amendment is to correct the cause title in the plaint by deleting the proprietary concern and to insert in its place as joint family firm. The Trial Court vide order dated 18.1.2002 allowed the application for amendment permitting the plaintiff to amend the cause title describing the first plaintiff as a joint family firm. The Trial Court while allowing the application for amendment observed that the correction in the cause title of the plaint it subject to the legal consequences and without prejudice to the legal rights of the defendants. The plaintiffs contend that the amendment is only correction in the cause title of the plaint with regard to the description of plaintiffs and the same relates back to the date of institution of the suit and as such the law of limitation has no application. On the other hand, the defendants contend that the proposed amendment is after lapse of 12 years from the date of institution of the suit and that the same is hit by law of limitation. In the background of this legal controversy it is necessary to notice the legal position on this question.
11. Section 21 of the Limitation Act, 1963 reads as under:
21. Effect of substituting or adding new plaintiff or defendant.-(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:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in Sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.
A reading of Section 21(1) of the Limitation Act specifies that after institution of the suit by way of amendment, if a new plaintiff or defendant is substituted or added then the suit shall as regards him, be deemed to have been instituted from the date on which he was made a party. Proviso to this section further specifies that if the Court is satisfied that a party was included due to mistake in good faith then the Court by an order treat the addition or inclusion of a party from the date of institution of suit. Omission to include a party was due to mistake in good faith is required to be examined in the facts and circumstances of each case. At this stage it is useful to notice the law laid down by Apex Court, this Court and other Courts on this proposition of law.
The supreme court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon held: “Rules of procedure are intended to be a hand maid 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 pleadings of the party, unless it is satisfied that the party applying was acting malafide 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.” It is further held that the power to grant leave to amend the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
In Ram Nath v. Kedar and Ors. a suit was filed in the name of “Harsukhraj Sagarmal through Sagarmal”. The amendment application was filed to delete the firm name and to introduce in its place “Sagarmal”. Sagarmal was manager of joint hindu family which owned the business. The Trial Court partly decreed the suit. In first appeal the suit was dismissed on the ground of limitation. In civil revision the high court held that “while the name of original plaintiff was the name of the firm, after amendment the plaintiff is an individual. But the plaintiff’s case has been that the business in question belongs to HUF and that Sagarmal is the manager. Thus the substance of case is not altered. This is not a case where a new plaintiff is introduced.” Section 22(1) of the Limitation Act (old) is not attracted since no new plaintiff had been added and the amendment involved only an alteration in the description of the plaintiff.
In B. Ganapathi Pai v. Veerappa Rudarppa Kotiwala firm 1973 (2) Mys.L.J. 325, the suit was filed for recovery and damages for the injuries sustained in a car accident. Car belongs to defendant. Defendant was described as “Veerappa Rudrappa Kotiwala”. Subsequently it was amended describing the defendant as M/s. Veerappa Rudrappa Kotiwala. The Trial Court dismissed the suit on the ground of limitation. This Court in appeal held that misdescription of defendant No. 1 in the cause title as individual and later by amending stating the defendant as firm is not barred by limitation.
In Ganesh Trading Co., v. Moji Ram , the plaintiff was described as “M/s. Ganesh Trading Company through one Sri Jayaprakash” a partner of the firm, for recovery of money under a promissory note. Subsequently an application for amendment was filed to say that the firm had been dissolved prior to the date of filing of the suit and the suit is instituted by one of the partners of the dissolved firm. The Trial Court dismissed the application saying it amounts to change in cause of action. The High Court in revision confirmed the order of Trial Court. The Supreme Court held that “a different or additional approach to the same facts could be allowed by amendment even after expiry of the period of limitation for the suit. The object of rules of procedure is to decide the rights of parties and not to punish them for their mistakes or shortcomings. The cause of action means ‘every fact which is material to be proved to entitle the plaintiffs to succeed. If it were so, no material fact could ever be amended or added and of course no one would want to change or add an immaterial allegations by amendment. That expression in the present context means only a new claim made on a new basis constituted by new facts. Any other view would be futile. The words ‘new case’ has to be understood to mean ‘new set of ideas’. Such new ideas will not be allowed to be introduced by amendment to the prejudice of any right acquired by any party by lapse of time. Mere specification of the capacity in which the suit was filed could not change the character of the suit or the case. The change made no difference to the rest of the pleadings or to the cause of action. The amendment does not alter the case of cause of action and it only brings out correctly the capacity of the plaintiff suing. It does not change the identity of the plaintiff who remains the same.”
12. Keeping in view the principles laid down in the decisions referred to above, it is necessary to examine the fact situation in the present case. It is not in dispute that second plaintiff D.L. Nanjaraj negotiated with the defendant trust’s Chairman by name Sri N. Krishnaswamy Reddy for lease of schedule property for its development. The first plaintiff was described as M/s. Mahesh Centre, a proprietary concern represented by its proprietor Sri D.L. Nanjaraj, the second plaintiff. At the first instance, the suit of the plaintiffs was decreed. The defendants being aggrieved by the Judgment and Decree of the Trial Court filed RFA No. 405/1998 on the file of this Court. During the pendency of the appeal, defendants filed an application seeking amendment of the written statement to incorporate one additional paragraph contending that there is no agreement or contract between the plaintiffs and defendants. This Court allowed the amendment application and remanded the matter to the Trial Court for fresh disposal in accordance with law. After remand plaintiffs filed an application to amend the cause title of the plaint to describe the first plaintiff as a joint family firm and not a proprietary concern. The amendment to the plaint was necessitated on account of amendment of the written statement by the defendants. The second plaintiff remained same even after amendment. The name of first plaintiff also remained same as M/s Mahesh Centre. On earlier occasion, the status of the first plaintiff was described as Proprietary concern. Now under the amendment the status of first plaintiff is described as joint family firm. The proposed amendment will not amount to introducing new idea or facts or relief. The amendment of cause title in the plaint with regard to the status of plaintiff will not change the cause action nor the nature of claim. The correction of misdescription of status of first plaintiff in the cause title is necessary for just and effective adjudication of the controversy between the parties. Therefore, Section 21(1) of Limitation Act has no application to the facts and circumstances of this case. The Trial Court committed an error in concluding that the suit of the plaintiff is liable to be dismissed as the same is barred by limitation. The trial Court failed to examine the scope of proviso to Section 21(1) of the limitation Act. I am satisfied that omission to describe the first plaintiff as joint family firm was only a mistake made in good faith. The description of status of first plaintiff relates back to the date of institution of suit. On this ground the impugned judgment and decree of the Trial Court is liable to be set aside.
13. The decision relied on by the learned Senior counsel for defendants in the case of Muni Lal v. The Oriental Fire and General Insurance Co. Limited and Anr. , has no application to the facts of the present case. In Muni Lal’s case the plaintiff filed a suit against the defendant for a declaration that he is entitled to the total loss of the truck from the insurance company. Subsequently the plaintiff filed an application seeking amendment of the prayer in the plaint by way of including a relief of mandatory injunction for payment of specified amount. Under the circumstances the Supreme Court held that alternative relief for mandatory injunction was available to be sought for when the suit was filed but not made. Therefore plaintiff cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of litigation in the appellate Court or the second appellate Court. But in the instant case the amendment is not to incorporate additional prayer which is barred by limitation. On the other hand the proposed amendment is only to describe the status of plaintiff as a Joint Hindu Family and not a proprietary concern.
In another decision relied on by the learned Counsel for defendants in T.L. Muddukrishna and Anr. v. Lalitha Ramachandra Rao , the plaintiff initially filed a suit for mandatory injunction. During the pendency of the suit the plaintiff filed an application for amendment of the plaint to incorporate additional prayer of decree for specific performance. Under those circumstances the Supreme Court held that on the date of filing the application for amendment of the plaint the relief of decree of specific performance was barred by limitation and the amendment shall be disallowed. But in the instant case the plaintiffs have not prayed for any additional prayer in the plaint and as such, the facts in T.L. Muddukrishna’s case are entirely different from the facts of the present case.
The law laid down by the Supreme Court in the case of Gurdial Singh and Ors. v. Raj Kumar Aneja and Ors. has no application to the facts of me present case. In Gurdial Singh’s case the Supreme Court explained the scope of Order 6 Rule 17 CPC and the procedure to be followed after amendment was allowed. In the instant case, it is not the grievance of the defendants that the procedure adopted is not followed. Therefore the law laid down by the Supreme Court in Gurdial Singh’s case has no application to the facts of the present case.
The other decision relied on by the learned Senior counsel for defendant in Sampath Kumar v. Ayyakannu and Anr. the Supreme Court held as under:
10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate case the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court in the date on which the application seeking the amendment was filed.
14. Applying the law laid down by the Supreme Court in Sampath Kumar’s case to the facts and circumstances of this case, the amendment of the cause title in the plaint correcting the mis-description of the status of the first plaintiff do not attract the provisions of Section 21 of the Limitation Act.
15. It is the contention of the plaintiffs that first plaintiff is the joint family firm and second plaintiff is its kartha. On behalf of the first plaintiff, the second plaintiff negotiated, corresponded and settled the terms of contract between the parties. In support of this contention the plaintiffs have produced Ex.P.26, Ex.P.59, P62, P63, P64, P65, P66, P68, P69, P70, P71, P72, and P73 as documentary evidence. These documents are Form No. 34-A, assessment orders and return of income for different assessment years under Income Tax Act. In these documents the status of assessee is shown as HUF. It further reveals that payment of Rs. 50,000/- advance to the defendants was made out of HUF funds. The trial Court refuses to consider this documentary evidence on record mainly on the ground that P.W.1 in his deposition stated that there is no document to show the contract of lease was between Mahesh Centre as HUF with the defendants. Further the trial Court without assessing and appreciating the entire evidence of PW1 and PW2 and only on the basis of a stray sentence in the evidence of PW1 concludes that there is no concluded contract between the Mahesh Centre as HUF and defendants. It is obligatory on the part of the trial Court to assess and appreciate the entire oral and documentary evidence on record to arrive at a just conclusion. A stray admission or statement of witness in his deposition shall not be the criteria or basis to arrive at a conclusion. It is the duty of Court to consider the evidence in a case as a whole and its finding should depend upon the cumulative effect of the entire oral and documentary evidence. The approach of the trial Court only on the basis of a stray sentence in the evidence of PW1 resulted in failure of justice. On this ground the impugned judgment and decree of the trial Court is liable to be set aside.
16. Though the trial Court framed seven issues and four additional issues, the suit of the plaintiff is dismissed mainly on the ground of limitation and that there is no concluded contract between the plaintiffs as HUF and the defendants. The trial Court has not given a finding with reasons in respect of other issues. The trial Court concludes that in view of finding on additional issue Nos. 1 and 2, issue Nos. 1 to 7 will not survive for consideration. In view of absence of a finding on all the issues, the matter requires to be remanded.
17. For the reasons stated above, the following;
ORDER
I. Appeal is allowed.
II. The imputed judgment and decree of the trial Court dated 27.3.2002 in O.S. No. 5309/1990 is hereby set aside.
III. The matter is remanded to the trial Court for fresh disposal in accordance with law as expeditiously as possible within a tune frame of six months from the date of receipt of copy of this judgment. Ordered accordingly.