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2001 DIGILAW 321 (JK)

Misra Banoo v. J&K Bank Ltd.

2001-12-05

B.L.BHAT

body2001
1. 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/Apsara Guest House, through its sole Prop. Mst. Misra Banoo and anr, pending decision before him, stems out of those circumstances which are summarised as:- 2. On 01-07-1991 the respondent-plaintiff Bank came to institute suit for recovery of Rs. 6,90,983/- against M/s Zahid/Apsara Guest House, through its sole proprietor Mst. Misr, Banoo and another before 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 statement by the defendants were filed and issues were framed, the respondent-plaintiff Bank came to seek indulgence of the Court though the medium of an application for leave to amend the cause title of the plaint by showing that 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 Prop, of M/s Zahid/Apsara Guest House, 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 change the nature of the suit and shall also 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. 3. 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 in place of the present defendant No. 1, who is a non-entity, when the claim of the respondent-plaintiff 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. 4. On the other hand, the stand of Mr. Misra Banoo, who is sought to be substituted as defendant No. 1. That the proposed amendment shall cause great injustice to the petitioner. 4. On the other hand, the stand of Mr. Javed Iqbal, learned counsel appearing for the respondent-plaintiff Bank, is that due to inadvertance the name of defendant has been shown as Zahid/Apsara Guest House under the Proprietorship of Mst. Misra Banoo, when the loan has been sanctioned and availed of by said Misra Banoo in her personal capacity. This being a case of mis-description of parties, therefore, leave to amend the cause title of the plaint deserves to be granted under law. 5. 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 ofZahid/Apsara Guest House". It is submitted that the name and style of Guest House was later on changed to Apsara Guest House......" In reply to the 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 later on changed to Apsara Guest House". All this goes to show that Mst. Misra Banoo, the revisionist availed loan facility in her personal capacity for running a Guest Hose which was firstly named as "Zahid Guest House" and later on its name came to be changed as "Apsara Guest House. 6. All this goes to show that Mst. Misra Banoo, the revisionist availed loan facility in her personal capacity for running a Guest Hose which was firstly named as "Zahid Guest House" and later on its name came to be changed as "Apsara Guest House. 6. 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 plaintiff-Bank came to institute the suit against Zahid/Apsara 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. 7. This being so, it is a clear case of mis-description of the defendant and not the substitution. In case of a mis-description 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 of irreparable loss to the opposite party cannot arise. In this behalf reference is made to a case titled as Kurapati Venkata Mallayya and another Vs. Thondepu Ramaswamy and anr, reported as AIR 1964 SC 818. It is observed that all 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 occured due to mistake, negligence or inadvertence cannot be refused. In this behalf reference is made to 2001 SLJ 247. 8. In a case titled as Harida Aildas Thadani and ors Vs. Godrej Rustum Kermani, reported as AIR 1983 SC, 319, the 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 other side. The revisional Court also ought not to interfere with a discretion exercised in allowing the amendment in absence of cogent reasons of 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. 9. Viewed thus, the impugned order does not suffer with any material irregularity or jurisdictional error. 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. 9. 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. 10. Record be sent together with a copy of this order to the trial court forthwith with a direction to expedite the disposal of the case. The learned counsels for the parties are directed to cause appearance of their clients before the trial court on 18-12-2001.