judgement:
Appeal No. 347 of 1966.
Appeal by special leave from the judgment and order dated December 11, 1963 of the Allahabad High Court in second Appeal No, 3809 of 1958.
1008 C. B. Agarwala, O. P. Rana and Ravindra Rana, for the appellants.
Denial Latifi and M. 1.
Khowaja, for respondent No. 1.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by special leave from a judg ment of the Allahabad High Court in which the principal question for determination is whether section 9 of the Indian , hereinafter called the "Act", which came into force on December 30, 1955, would be applicable to a suit which was pending on that date.
Respondent No. 1 was born on July 3, 1934.
He went to Pakistan in October 1950.
In March 1953 he obtained a visa from the Indian High Commission in Pakistan for coming to India.
He came to India on July 22, 1953.
On July 20, 1954 the period of authorised stay expired and respondent No. 1 applied for permanent settlement in India.
He, however. filed a writ petition in the High Court on July 15, 1954 but the same was dismissed on February 10, 1955 and respondent No. 1 was directed to file a suit.
He instituted a suit on May 6, 1955.
He claimed that he was born in India of parents who were residing here and that he was a minor when he was persuaded by two muslim youths to accompany them on a trip to Pakistan.
He went there without any intention to settle there permanently.
Later on he made efforts to return but due to certain restrictions he was unsuccessful.
He had no alternative but to obtain a passport from the Pakistan authorities in order to come to India.
He had thus never changed his nationality and continued to remain a citizen of India.
He sought a permanent injunction res training the Union of India, the State of U.P., District Magistrate, Kanpur and the Superintendent of Police.
Kanpur.
who were impleaded as defendants from deporting him.
The suit was contested and on the, pleadings of the parties the appropriate issues were framed.
The learned Munsif held that respondent No. 1 had gone to Pakistan for settling there permanently and had ceased to be an Indian citizen.
The suit was dismissed.
Respondent No. 1 appealed to the First Additional Civil Judge, Kanpur.
The Teamed Judge was of the view that respondent No. 1 had gone to Pakistan when he was a minor and when his father, who was his guardian, was in India.
By his departure to Pakistan, respondent No. 1 could not change his nationality.
Even on a consideration of the evidence it could not be held that he had shifted to Pakistan with the intention of settling there permanently.
His appeal was allowed and a permanent injunction as prayed was issued.
The Union of India and other appellants preferred an appeal to the High 1009 Court.
Before the High Court a preliminary objection was taken that the civil court had no jurisdiction to try the question whether respondent No. 1 had acquired the citizenship of Pakistan which matter had to be referred to the Central Government under Rule 30 of the Citizenship Rules framed under the Act.
This objection was repelled in view of another decision of the High Court according to which section 9 of the Act and Rule 30 could not operate retrospectively and affect pending litigation.
Before the High Court the finding that respondent No. 1 did not go to Pakistan with the intention of settling there permanently was not challenged by the appellants.
The High Court was inclined to agree with the lower appellate court that so long as respondent No. 1 was a minor he could not change his Indian domicile because his parents were domiciled in this country.
The High Court proceeded to say that since respondent No. 1 had spent one year in Pakistan after he had ' obtained majority it was necessary to investigate whether he had acquired, during that period, the citizenship of Pakistan.
An appropriate issue was framed and remitted to the lower appellate court for its determination.
The appellate court held that respondent No. 1 had not acquired the citizenship of Pakistan since it was not legally possible for him to do so for the reason that according to laws of Pakistan he could become a major only on attaining the age of twenty one.
On December 11, 1963 the High Court disposed of the appeal of the present appellants by dismissing it in view of the findings which were in favour of respondent No. 1.
Learned counsel for the appellants had contended before us that the civil court had no jurisdiction to decide the question of citizenship after the enforcement of the Act towards the end of the year 1955 in view of the provisions of Rule 30 of the Citizenship Rules 1956 promulgated in exercise of the Dower conferred by section 1 8 (2) (h) of the Act.
Section 9 is in the following terms "section 9(1) Any citizen of India who by naturalisation, registration or otherwise voluntarily acquires, or has at any time between the 26th January 1950 and the commencement of this Act, voluntarily acquired the citizenship of another country, shall upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India : Provided that nothing in this sub section shall apply to a citizen of India who during any war in which India may be engaged, voluntarily acquires the citizenship of another country, until the Central Government otherwise directs.
1010 (2) If any question arises as to Whether, when or how any person has acquired the citizenship of another country, it shall be determined by such authority in such manner and having regard to such rules of evidence, as may be prescribed in this behalf.
" Rule 30 provides: "Authority to determine acquisition of citizenship of another country. (1) If any question arises as to whether, when or how any person has acquired the citizenship of another country, the authority to determine such question shall, for the purpose of section 9(2) by the Central Government.
The Central Government shall in determining any such question have due regard to the rules of evidence.
specified in Schedule III.
" The validity of the provisions of the Act and the Rules is no longer open to challenge. 'It has not been disputed by learned counsel for respondent No. 1 that after the enforcement of the Act and promulgation of Rule 30 the only authority which is competent to determine whether citizenship of Pakistan has been acquired by him is the Central Government.
But it has been strenuously urged that the suit in the present case had been instituted prior to the date of enforcement of the Act and therefore respondent No. 1 was entitled to get this question determined by the Courts and not by the Central Government.
In other words section 9 of the Act cannot be given 'retrospective operation so as to be made applicable to pending proceedings.
Thus the first point which has to be decided is whether section 9 either expressly or by necessary implication has been made applicable to or would govern pending proceedings.
The language of sub section
(1) is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after it ; commencement.
The words "or has at any time between the 26th January 1950 and the, commencement of this Act.
voluntarily acquired the citizenship of another country" would become almost redundant if only prospective operation, is given to section 9 (1) of the Act.
This according to the settled rules of intepretation cannot be done.
It must be remembered that Article 9 of the Constitution provides that no person shall be a Citizen of India by virtue of article 5 or be deemed to be a citizen of India by virtue of article 6 or article 8 if he has voluntarily acquired the citizenship of any foreign State.
, This. means that if prior to the commencement of the Constitution a person ' had voluntarily acquired the citizenship of any foreign State he was not entitled ' to ' 'claim the citi 1011 zenship of India by virtue of articles 5 and 6 or 8.
This article thus deals with cases where the citizenship of a foreign State had been acquired by an Indian citizen prior to the commencement of the Constitution (vide Izhar Ahmed Khan vs Union of India) (1).
Article 11, however, makes it clear that Parliament has the power to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
The Parliament could thus regulate the right of citizenship by law.
As pointed out in the above decision of this Court it would be open to the Parliament to affect the rights of citizens and the provisions made by the Parliamentary statute cannot be impeached on the ground that they are inconsistent with the provisions contained in other Articles, in Part II of the Constitution.
The Act has been enacted under the powers of the Parliament preserved by article 11 in express terms.
The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule.
It could thus make a provision about the forum where the question as to whether a person had acquired citizenship of another country could be determined and this is what has been done by Rule 30.
The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds: (1) Indian citizens who voluntarily acquired citizenship of a foreign State prior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act and (3) Indian citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt with by article 9 of the Constitution.
The second and the third categories would be covered by the provisions of section 9 of the Act.
If a question arises as to whether, when or how an Indian citizen has, acquired the citizenship of another country that has to be determined by the Central Government by virtue of the provisions of sub section
(2) of section 9 read with Rule 30 of the Citizenship Rules.
Counsel for respondent No. 1 has relied on a decision of a learned Single Judge of the Allahabad High Court in Abida Khatoon & Another vs State of U.P. & Ors.
(2) which was followed in the present case.
There it was observed that a litigant, after filing a suit, acquired a vested right to have all questions determined by the court in which the suit was filed and that the institution of the suit carried with it all the rights of appeal then in force.
Referring to the normal principle that an Act is ordinarily not retrospective, that vested rights are not disturb (1) [1962] Supp 3 section R. 235, 244, 245, (2) A.I.R. 1963 All.
1012 ed and that the jurisdiction of the civil courts in pending cases is not taken away by the creation of a new tribunal for the determination of a particular question, the learned judge held that there was nothing in the language or the scheme of the Act to suggest that Parliament wanted to depart from these principles.
We are unable to agree.
In our judgment from the amplitude of the language employed in section 9 which takes in persons in category (2) mentioned above the intention has been made clear that all cases which come up for determination where an Indian citizen has voluntarily acquired the citizenship of a foreign country after the commencement of the Constitution have to be dealt with and decided in accordance with its provisions.
In this view of the matter the entire argument which prevailed with the Allahabad court can have no substance.
It has next been contended that retrospective operation should not be given to section 9 of the Act because loss of Citizenship is a serious and grave matter and it involves loss of personal liberty.
Under article 21 no person can be deprived of his life or personal liberty except according to procedure established by law.
The procedure established by law before the commencement of the Act was the ordinary procedure of determination by civil courts whenever a question arose about loss of Indian citizenship by acquisition of citizenship of a foreign country or State.
It is suggested by learned counsel for respondent No. 1 that by giving retrospective operation to section 9 so as to make it applicable to pending proceedings the provisions of article 21 win be contravened or violated.
This would render section 9 of the Act unconstitutional.
It is somewhat difficult to appreciate the argument much less to accede to it.
If the Parliament was competent under article 11, which is a constitutional provision read with the relevant Entry in List 1, to legislate about cases of persons belonging to categories 2 and 3 referred to at a previous stage it could certainly enact a legislation in exercise of its sovereign power which laid down procedure different from the one which obtained before.
The new procedure would itself become the "procedure established by law" within the meaning of article 21 of the Constitution.
Therefore even on the assumption that loss of Indian citizenship with consequent deportation may involve loss of personal liberty within the meaning of article 21, it is not possible to hold that by applying section 9 of the Act and Rule 30 of the Rules to a case in which a suit had been instituted prior to the commencement of the Act there would be any contravention or violation of that Article.
In conclusion it may be mentioned that this could, in several cases, has consistently held that questions falling within section 9(2) have to be determined to the extent indicated therein by the 1013 Central Government and not by the courts.
Such matters as are not covered by that provision have, however, to be determined by the courts; (see Akbar Khan Alam Khan & Anr.
vs The Union of India & Ors.
(1) and lzhar Ahmed Khan vs Union of India) (2) and The Government of Andhra Pradesh vs Syed Mohd. Khan) (3).
In the present case the High Court ought not to have called for a decision of the lower appellate court on the issue of the plaintiff having acquired or not acquired the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
The appeal is, consequently, allowed and the order of the High Court is hereby set aside.
It will be for the High Court now to make appropriate orders for determination of the aforesaid question by the Central Government after which alone the High Court will be in a position to dispose of the appeal finally.
Costs will abide the result.
G.C. Appeal allowed.
(1) [1962] 1 S.C.R.779.
(2) [1962] Supp. 3 S.C.R. 235.
(3) (1962] Supp. 3 S.C.R. 288.
LlISup C.1/69 2,500 31 3 70 GIPF.

summary:
Respondent No. 1 was born in undivided India on July 3, 1934.
He went to Pakistan in October 1950.
In 1953 he obtained a visa from the Indian High Commission in Pakistan and came to India on July 22, 1953.
After the expiry of his period of stay he sought permanent settlement in India.
On May 6, 1955 he filed a suit claiming that he was a minor when he went on a trip to Pakistan and had not ceased to be an Indian citizen.
He sought a permanent injunction restraining the Union of India and other authorities from deporting him.
The Munsif who tried the suit held that respondent No. 1 had ceased to be an Indian citizen, and dismissed the suit.
The District Judge in first appeal held that being a minor whose father was in India respondent no.1 could not by leaving for Pakistan, lose his Indian nationality.
In second appeal the High Court of Allahabad remanded the case to the first appellate court to determine the question whether by having spent one year in Pakistan after attaining majority respondent No. 1 had acquired the citizenship of Pakistan.
The High Court rejected the contention on behalf of the State that in view of section 9(2) of the Indian which came into force on December 30, 1955 and Rule 30 of the Citizenship Rules made under the Act, the question whether respondent No. 1 was a citizen of India or not could only be decided by the Central Government.
In taking this view the High Court relied on the decision in Abida Khatoon 's case in which a single Judge of that court had held that section 9 of the was not retrospective and could not take away the vested right of a citizen who had already filed a suit to have his claim for citizenship decided by a court. 'the first appellate court gave after remand a finding favourable to respondent No. 1 and on receipt of this finding the High Court dismissed the State 's appeal.
The State then appealed to this Court.
The questions that fell for consideration were : (i) whether section 9 of the Act would apply to a suit pending on the date when the Act came into force; (ii) whether in view of the fact that the procedure established by law before the commencement of the Act allowed the question as to the acquisition of the citizenship of another country to be determined by courts, there was by giving retrospective operation to section 9, a violation of the guarantee of personal liberty under article 21.
HELD : (i) The language of sub section
(1) of section 9 is clear and unequivocal and leaves no room for doubt that it would cover all cases where an Indian citizen has acquired foreign nationality between January 26, 1950 and its commencement or where he acquires such nationality after its commencement.
The words "or has at any time between the 26th January 1950 and the commencement of the Act, voluntarily acquired the citizenship of another country" would become almost redundant if only prespective operation is given to section 9(1) of the Act.
This according to the settled rules of interpretation cannot be done, [1010 F G] 1007 (ii) The Act has been enacted under the powers of the Parliament preserved by article 11 in express terms and a law made by Parliament cannot, as.
held in lzhar Ahmed 's case be impeached on the ground that it is inconsistent with the provisions contained in other Articles in Part II of the Constitution.
The Parliament had also legislative competence under Entry 17, List I of Seventh Schedule.
It could thus make a provision, about the forum where the question as do whether a person had acquired citizenship of another country could be determined and this is what has been done by r. 30.
[1011 B D] The cases that would ordinarily arise about loss of Indian citizenship by acquisition of foreign citizenship would be of three kinds : (1) Indian citizens who voluntarily acquired citizenship of a foreign, State perior to the commencement of the Constitution; (2) Indian citizens who voluntarily acquired the citizenship of another State or country between January 26, 1950 and December 30, 1955 i.e. the date of commencement of the Act, and (3) Indian Citizens who voluntarily acquired foreign citizenship after the date of commencement of the Act i.e. December 30, 1955.
As regards the first category they were dealt with by article 9 of the Constitution.
The second and third categories would be covered by the provisions of section 9 of the Act.
Therefore, if a question arises as to whether when and how an Indian citizen has acquired citizenship of another country that has to be determined by the central Government by virtue of the provisions of sub section (2) of section 9 read with r. 30 of the Citizenship Rules.
In view of the amplitude of the language employed in section 9 which takes in persons mentioned in category (2) mentioned above, the entire argument which prevailed with the Allahabad High Court in Abida Khatoon 's case can have no substance.
[1011 D H, 1012 C] lzhar Ahmad Khan vs Union of India, [1962] Supp.
3 S.C.R. 235, 244, 245., Akbar Khan Alam Khan & Anr.
vs Union of India, ; and The Government of Andhra Pradesh vs Syed Mohd. Khan, [1962] Supp. 3 S.C.R. 288, referred to.
Abida Khatoon & Anr.
vs State of.
U.P. & Ors.
A.I.R. 1963 All 260, disapproved.
(iii) The contention that retrospective operation of section 9 would contravene article 21 of the Constitution could not be accepted.
If the Parliament was competent under article 11 which is a constitutional provision read with the relevant entry in List I to legislate about ' cases of persons belonging to categories 2 and 3 referred to earlier it could certainly enact a legislation in exercise of its sovereign power which laid down a procedure different from the one which obtained before.
The new procedure would ltself become the "procedure established by law" within the meaning of article ' 21 of the Constitution.
[101 2 E G] The High Court was therefore wrong in the present case in calling for a decision of the lower appellate court on the issue of the plaintiff having acquired or not the citizenship of Pakistan between July 3, 1952 and the date of his return to India.
[High Court accordingly directed to have question determined by Central Government and thereafter dispose of appeal finally].
[1013 B C]


judgement:
Appeal No. 349 of 1966.
Appeal by special leave from the judgment and order dated December 17, 1963 of the Punjab High Court,.
Circuit Bench at Delhi in R.F.A. No. 164 C of 1963.
1003 section V. Gupte and A. N. Goyal, for the appellants.
C. B. Agarwala, H. K. Puri and B. N. Kirpal, for respondent No. 1.
The Judgment of the Court was delivered by Hegde, J.
The only question that arises for decision in this appeal by special leave is whether the suit from which this appeal has arisen is barred by res judicata in view of the decision in Civil Suit No. 15 of 1943.
The trial court answered that question in the affirmative but the High Court has taken a contrary view.
Hence this appeal.
The facts of the case leading up to this appeal, briefly stated, are as follows : One Krishen Gopal had lease hold rights in the suit pro perties.
After the death of the aforesaid Krishen Gopal dispute arose between Jawala Prashad, the father of the appellants and Banwari Lal Verma, the father of the respondents as to the title of the suit properties.
Each one of them claimed that those properties had been gifted to him by Krishen Gopal.
As a result of this dispute Jawala Prashad instituted on January 20, 1943, Civil Suit No. 15 of 1943 against Banwari Lal Verma claiming possession of the suit properties on the strength of the alleged gift in his favour.
In defence Banwari Lal Verma pleaded that those properties had been gifted to him by Krishen Gopal.
The principal issue that arose for decision in that suit was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.
The trial court dismissed the suit but in appeal the decree of the trial court was reversed and the suit was decreed as prayed for.
That decision was confirmed by the High Court and thereafter by this Court in, Civil Appeal No. 164 of 1953.
After the decision of this Court Banwari Lal Verma made various applications to this Court asking for reliefs which if they had been granted, would have practically nullified the effect of the decree but those applications were rejected by this Court.
Thereafter efforts appear to have been made to obstruct the execution of the decree in diverse ways.
When everyone of those efforts failed Rangi Lal Verma the eldest son of Banwari Lal Verma filed a suit praying for a declaration that the suit properties belonged to his joint.
family consisting of Banwari Lal Verma and his sons.
This suit was dismissed for non prosecution.
It is only thereafter the present suit has, been filed by one of the sons of Banwari Lal , Verma claiming partition in the suit properties on the allegation that the same had been gifted by, Krishen, Gopal to.
his joint family.
1004 The gift put forward by the plaintiff is said to have been made in 1928.
Admittedly at that time all the sons of Banwari Lal Verma were minors (see the affidavit filed in this Court by Rangi Lal on behalf of the plaintiff, on February 26, 1969 Therefore, naturally the gift, if true could have been accepted only by Banwari Lal Verma who was the Karta of the family at that time.
was not even urged that Banwari Lal Verma did not safeguard the interest of his family while contesting the previous suit.
Further it is not the case of the respondents that there was any conflict of interest between Banwari Lal Verma and his sons.
The facts disclosed make it obvious that Banwari Lal Verma and after his death his sons are availing themselves of every possible loophole in our judicial system to delay, if not defeat the course of justice.
The effort is one, and continuous.
The suit from which this appeal has arisen is a clear abuse of judicial process.
It is in this setting that we have to see whether the decision in Civil Suit No. 15 of 1943 operates as res judicata in the present case.
In the Civil Suit No. 15 of 1943, there was no room for con troversy as to whether the alleged gift was in favour of Banwari Lal Verma in his individual capacity or in his favour as the Karta of his family.
Therein the controversy was whether the suit properties had been gifted to Jawala Prashad or Banwari Lal Verma.
As seen earlier Banwari La] Verma pleaded that they had been gifted in his favour.
He did not make it clear nor was it necessary for him to do so in that suit as to whether they were gifted to him as the Karta of the family or in his individual capacity.
The properties that were in dispute in the former suit as well as in the present suit are identical properties.
It cannot be disputed that Banwari Lal Verma by himself could have represented his family in that suit.
That suit must be deemed to have been instituted against Banwari Lal Verma in that capacity in which he claimed title to it.
If his claim in that suit is understood to have been made on behalf of his family then he must be deemed to have been sued therein as the Karta of his family.
It was for Banwari Lal Verma to make clear the capacity in which he was defending the suit.
That being so we fail to appreciate the conclusion of the High Court that the decision in the previous suit does not operate as res judicata in the present suit.
It is not necessary, in order that a decree against the manager may operate as res judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager.
It is sufficient if the manager was in fact suing or being sued as representing the whole family, see Lalchand vs 1005 Sheogovind(1); Ram Kishan vs Ganga Ram(2); Prithipal V. Rameshwar(3); Surendranath vs Sambhunath(4).
The suit by or against the manager will deemed to be one brought by him or against him as representing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property, see Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa(5).
See also Venkakanarayana vs Somaraju(6).
It is not not necessary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager.
A Karta can represent the family effectively in proceeding though he is not named as such, see Mani Sahoo vs Lokanath(7).
For the reasons mentioned above this appeal is allowed and the judgment and decree of the High Court is set aside and that of the trial court restored.
The respondent shall pay the costs of the appellants in all the courts.
V.P.S. Appeal allowed.
(1) (1929) I.L.R.8, Pat. 788.
(2) , Lab.
(3) , Luck.
(4) , Cal.

dataset_name: IN-Abs

summary:
A suit between J the father of appellants and B the father of respondents, each claiming possession of the suit properties on the strength of an alleged gift deed in his favour, was decreed in favour of J and the decree was confirmed by this Court.
After various attempts by B and after his death by his sons, to defeat J 's rights, one of B 's sons filed a suit for partition of the suit properties on the allegation that they were gifted to the joint family of which B was the karta.
On the question whether the decree in the earlier suit operated as res judicata.
HELD : It is not necessary in order that a decree against a manager may operate as res judicata against coparceners who were not parties to the earlier suit, that the plaint or written statement should state in express terms that he was suing or was being sued as a manager,.
It is sufficient if the manager was in fact suing or was being sued as representing the whole family.
A suit by or against the manager will be deemed to be one brought by or against him as representing the family if the circumstances show that he was the manager and the property involved in the suit was family property.
[1004 H; 1005 A B] In the present, case, B must be deemed to have been sued in the previous suit as the karta of his family, because : (a) the alleged gift in favour of the joint family was at a time when all the sons of B were minors and if true the gift could have been accepted by B only as the karta, (b) there was no conflict of interest between B and his sons and there was no allegation that B did not safeguard the family 's interest while contesting the previous suit; and (c) B did not claim in the earlier suit that the gift was to him in his individual capacity.
[1004 A C; 1005 C] Lalchand vs Sheogovind, Pat. 788, Ram Kishan vs Ganga Ram, Lah.
428, Prithipal vs Rameshwar, Luck.
288, Surendranath vs Sambhunath, Cal. 210, Mulgaund Co operative Credit Society vs Shidlingappa Ishwarappa, I.L.R. , Venkatanarayana vs Somaraju, A.I.R. 1937 Mad.
610 (F.B) and Mani Sahoo vs Lokanath, A.I.R. , referred to.


judgement:
l Appeals Nos. 1622 to 1626 of 1968.
Appeals from the judgment and order dated February 11, 1964 of the Calcutta High Court in Income tax Reference No. 109 of 1960.
2 Sachin Chaudhuri, T. A. Ramachandran and D. N. Gupta, for the appellant (in all the appeals).
section T. Desai, section A. L. Narayan Rao, R. H. Dhebar, R. N. Sachthey and B. D. Sharma, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Shah, J.
Netherlands Steam Navigation Company Ltd. hereinafter called "the assessee" is a non resident Company engaged in shipping business.
For the assessment years 1952 53 to 1956 57 the assessee filed its return of income for the relevant accounting years disclosing taxable income computed on the basis of its annual turnover in its Indian trade i.e. "round voyages" to and from Indian Ports.
The assessee did not furnish particulars of its world income.
The Income tax Officer computed the taxable business income of the assessee for each year by the application of the following formula: Indian trade profits x Indian Port receipts Total Port receipts By the expression "Indian trade profits" in the formula was meant profit earned in "round voyages" made by the assessee 's ships which touched Indian ports.
Operation of the formula may be illustrated by taking a sample computation by the Income tax Officer for the year 1953 54 Kr.
"Total gross earning in Indian Trade 10,024,996 Deduct: (1) Total experience in Indian Trade 7,705,474 (2) Depreciation allowance 733,671 8,439,145 Net profit India Trade 1,585,851 Gross earning from Indian Ports 5,440,042 Proportionate Indian Profits: 5,440,042 * 1,585,851 860,559 100,024,996 (Rs.100=Kr.79.80 Rs.10,78,395" In computing the profits of the assessee in India in each year the Income tax Officer allowed normal depreciation and other trade allowances admissible under the Indian Income tax Act, 1922, and the relevant rules made thereunder.
He, however, did not allow initial depreciation and additional depreciation in respect of the ships of the assessee in any of the assessment years, because the ships acquired by the assessee were not introduced into the Indian business in the years in which they were newly acquired. 'The orders of 'assessment were confirmed by the Appellate Assistant Commissioner.
3 In appeal to the Income tax Appellate Tribunal the assessee claimed Additional depreciation for four ships for which the following details were furnished: "(1) section section Bintang Brought into use in 1950.Brought into use in the Indian trade in 1951.
Claim for the assessment years 1952 53 to 19 54 55.
(2) section section Billiton Brought into use in 1951.
Brought into use in the Indian trade in 1952.
Claim for the Assessment years 1953 54 to 1956 57.
(3) S, section Banka Brought into use in 1953.
Brought into use in the Indian trade in 1954.
Claim for the assessment years 1955 56 and 1956 57.
(4) section section Bawean Brought into use in 1953.
Brought into use in the Indian trade in 1954.
Claim for the assessment years 1955 56 and 1956 57.
" The assessee and the Commissioner were agreed that the taxable income of the assessee had to be determined by the application of the second method in Rule 33 of the Indian Income tax Rules, 1922.
The Tribunal also observed that the Commissioner and the assessee agreed that the formula adopted by the Income tax Officer was "the correct method of assessment".
The Commissioner submitted before the Tribunal that if the Indian business of the assessee be regarded as part of its world business and not independent of it, the world profits of the assessee must be computed according to the provisions of the Indian Income tax Act, 1922, and additional depreciation may be taken into account in determining the taxable profits under the Indian Income tax Act as a fraction of the world profits.
But he maintained that if the Indian trade be regarded as a separate business and not part of the world trade of the assessee, additional depre ciation could only be allowed under section 10(2)(vi a) of the Indian Income tax Act, provided ships which are new are introduced into the Indian trade and not otherwise, In the opinion of the Tribunal, in computing the taxable in come of the assessee under the Indian Income tax Act, 1922, the Indian business must be taken to be part of the assessee 's world business, and "depreciation which the assessee was entitled to, in respect of its world business by the application of the Indian Income tax Act would be proportionately available in respect of its Indian business.
" The Tribunal observed that under r. 33 "the profits have to be calculated under the terms of the Indian Incometax Act and this act postulated that on all machinery, plants and such other things like steamers brought into business after March 31, 1948, additional depreciation must also be granted".
The 4 Tribunal then observed that the ships brought into the Indian trade were not new in the years of account relevant to the five years of assessment, but the assessee was still qualified under section 10(2) (vi a) to additional depreciation for a continuous period of five years, and "the fact in the first of these years the new ships did not call at the Indian Ports in one assessment year did not disentitle the assessee to the benefit not only for that year but also for the succeeding four years".
Accordingly the Tribunal held that in respect of all the four ships of the assessee, additional depreciation was admissible as claimed.
At the instance of the Commissioner of Income tax, the fol lowing question was referred by the Tribunal to the High Court of Calcutta for opinion in respect of each of the five years : "Whether on the facts and circumstances of the case the assessee Company is entitled to additional depreciation in respect of the four ships mentioned above?" The High Court answered the question in the negative Clause (vi a) was inserted in section 10(2) of the Indian Income tax Act, 1922, by section 11 of the Taxation Laws (Extension to Merged States and Amendment) Act 67 of 1949.
The clause as amended by section 8 of the Indian Income tax (Amendment) Act 25 of ' 1953 with effect from April 1, 1952, reads as follows : "In respect of depreciation of buildings newly erected, or of machinery or plant being new which has been installed, after the 31st day of March, 1948, a further sum (which shall be deductible in determining the written down value) equal to the amount admissible under clause (vi) (exclusive of the extra allowance for double or multiple shift working of the machinery or plant and the initial depreciation allowance admissible under that clause for the first year of erection of the building or the installation of the machinery or plant) in not more than five successive assessments for the financial years next following the previous year in which such buildings are erected and such machinery and plant installed and falling within the period commencing on the 1st day of April, 1 949, and ending on the 31st day of March, 1959.
" The assessee is a non resident Company.
It maintains a Branch Office in Calcutta; but on that account the ' Indian business of the assessee cannot be regarded as business distinct from its world business.
It was not so treated by the Income tax Officer, or by the Appellate Assistant Commissioner.
In computing profits or gains of business carried on by an assessee, normal depreciation 5 under, section 10(2)(vi) and additional depreciation under section 10(2)(vi a) are undoubtedly admissible in the conditions and to the extent allowed under the two clauses.
By section 4(1) of the Indian Income tax Act, the total income of any previous year of a non resident includes all income, profits and gains from whatever source derived which (1) are received or are deemed to be received in the tax able territories in such year by or on behalf of such person, and (2) which accrue or arise or are deemed to accrue or arise to him 'in the taxable territories during such year.
Section 10 of the Act which charges to tax the profits and gains of business, profession or vocation carried on by an assessee applies to assessees who are residents, residents but not ordinarily resident, and non residents.
Profits and gains of business of a non resident received or deemed to be received in the taxable territories by or on behalf of the assessee are taxable under the Indian Income Tax Act 1922 : profits and gains of business which accrue or arise or are deemed to accrue or arise to him in the taxable territories are also taxable under that Act; but profits and gains which accrue or arise or are deemed to accrue or arise to a non resident without the taxable territories are not taxable under the Act.
Section 4 is one of the pivotal sections in the scheme of the Income tax Act.
Thereby within the total income of a non resident is included income received, arising or accruing, or deemed to be received, or to have arisen or accrued, within the taxable territories.
The Act however gives no clear guidance for determining when income may be said to have arisen or accrued within the taxable territories.
But r. 33 framed under the Act purports to give some direction to the Income tax Officer for determining income, profits or gains accruing or arising to a non resident for the purpose of assessment to income tax.
There is no dispute that the profits of the business taxable under the Indian Income tax Act, 1922, are a fraction of the world profits and the profits are to be determined under r. 33 of the Income tax Rules.
Rule 33 of the Income tax Rules reads as follows : "In any case in which the Income tax officer is of Opinion that the actual amount of the income, profits or gains accruing or arising to any person residing out of the taxable territories whether directly or indirectly through or from any business connection in the taxable territories or through or from any Property in the taxable territories, or through or from any asset or, source of income in the taxable territories, or through or from any 6 money lent at interest and brought into the taxable territories in cash or in kind cannot be ascertained, the amount of such income, profits or gains for the purposes of assessment to income tax may be calculated on such percentage, of the turnover so accruing or arising as the Income tax Officer may consider to be reasonable, or on an amount which bears the same proportion to the total profits of the business of such person (such profits being computed in accordance with the provisions of the Indian Income tax Act) as the receipts so accruing or arising bear to the total receipts of the business, or in such other manner as the Income tax Officer may deem suitable.
" The rule authorises the Income tax Officer to adopt one of the three methods of determining income, profits or gains ' ?Or the purpose of assessment to income tax where the Income tax Officer is unable to ascertain the actual amount of income, profits or gains, arising inter alia out of a business connection in the taxable territories : (a) a percentage of turnover considered reasonable (b) a proportion of the total profits (computed according to the provisions of the Indian Income Tax Act) of the business of the assessee equal to the proportion which the receipts accruing or arising bear to the total receipts of the business and (c) such other manner as the Income tax Officer may deem suitable.
The second method, it was common ground, was properly applicable to the determination of taxable income of the assessee.
That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income tax Act: the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income tax.
This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits.
The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income tax Act is also a fraction thereof.
Apparently the Income tax Officer did not apply the second method under r. 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the world business.
7 Counsel for the assessee asked us to assume that the profits computed by the Income tax Officer according to the formula adopted by him are profits determined by the second method in r. 33, and claimed on that footing that beside normal depreciation, additional depreciation ought also to have been taken into account, and the taxable profits of the assessee determined on that basis.
But that assumption cannot be made.
One of the essential conditions of the applicability of the second method in r. 33 is the determination of the total world profits of the assessee under the Indian Income tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction.
The assessee has not produced its books of account of its world trade to enable the Income tax Officer to determine its total taxable profits arising from its world business.
There was apparently no clear appreciation of the true im port of the second method under r. 33 before the Departmental Authorities and the Tribunal.
Counsel for the assessee suggested that his client may be willing to produce before the Income tax Officer the books of account of the relevant years for computing the total world profits according to the Indian Income tax Act, 1922, and the benefit of additional depreciation may then be allowed to the assessee in computing the total profits under the Indian Income tax Act.
Counsel for the Commissioner expressed his willingness to the adoption of that course.
Counsel requested us to adjourn the hearing to enable them to obtain instructions from their respective clients, and the hearing was accordingly adjourned for three weeks.
But ultimately counsel for the assessee informed us that his clients may not be able to bring before the Income tax Officer the books of account of their world trade.
The Income tax Officer has evolved a special formula for de termining the profits which is not the second method in r. 33 of ' the Income tax Rules.
The assessee has not challenged the correctness of that method, nor has the Department.
In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.
Clearly the Income tax Officer did not in computing the tax able income resort to the second method in r. 33 of the Incometax Rules.
We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal.
We are incompetent to decide whether computation of the taxable income by the Income tax Officer by the application of the formula evolved by him is correct: that question is not before us.
We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted 8 by the Income tax officer.
Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the tax able income.
We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act.
In the reference before us the income in question was outside the purview of assessment under the Indian Income tax Act".
That was not the plea of the Commissioner.
The source of the income of the assessee charged to tax was business: it was not income from any other source.
The Commissioner and the assessee were ad idem on that matter.
The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income tax Officer by the method evolved by him.
It was common ground that the appropriate method for deter mining the profits was the second method in r. 33.
But that method was never applied: if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances.
The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed.
The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer.
The appeals fail.
The assessee will pay the costs of these appeals.
One hearing fee.
R.K.P.S. Appeals dismissed.

summary:
The appellant is a non resident shipping company with its local office in Calcutta.
For its assessment to income tax for the years 1952 53 to 1956 57 the appellant filed returns disclosing taxable income computed on the basis of its annual turn over in its Indian trade but did not furnish particulars of its world income.
The Income tax Officer computed the taxable business income for each year by application of a special formula which was accepted by the appellant.
However, in computing the income, the Income tax Officer only allowed normal depreciation and other trade allowances admissible under the income tax Act 1922 and did not allow any initial depreciation or additional depreciation in respect of the ships of the appellant in any of the assessment years, because the ships acquired by the appellant were not introduced into the Indian business in the years in which they were newly acquired.
The, orders of assessment were confirmed by the Appellate Assistant Commissioner but the Tribunal held that in respect of all the four ships, additional depreciation wag 'admissible under section 10(2) (vi a) of the Act, as claimed.
The High Court, on a reference, answered the question against the assessee.
HELD : Additional depreciation was not admissible to the appellant as an allowance in the computation of the taxable income by the special formula adopted by the Income tax Officer.
It was common ground that the, appropriate method for determining the profits was the second method in r. 33.
But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances.
The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under r. 33, claim that additional depreciation should be allowed.
[8 E] The Supreme Court in the present appeal was exercising an advisory jurisdiction and could not decide whether the computation of taxable income by the Incometax Officer by the application of the formula evolved by him was correct.
Additional depreciation is a statutory allowance in the determination of taxable profit under section 10 of the Act, and in the case of a non resident where, actual income cannot be determined, and resort is had to r. 33, not when an empirical method is adopted for computation of the taxable income.


judgement:
Appeal No. 697 of 1966.
Appeal by special leave from the judgment and order dated November 9, 1964 of the Allahabad High Court in First Appeal No. 257 of 1953.
section C. Manchanda, section k. Mehta and K. L. Mehta, for the appellant.
Bishan Narain and Harbans Singh, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On March 11, 1950, Manohar Lal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, Nanital, for a decree for Rs. 10,139/12/ being the value of timber supplied to the defendant the National Building Mate rial Supply, Gurgaon.
The action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was carried on.
The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "Jai Jai Ram Manohar Lal, by the pen of Manohar Lal", and the plaint was also similarly verified.
The defendant by its written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue.
On July 18, 1952, the plaintiff applied for leave to amend the plaint.
Manohar Lal stated that "the business name of the plaintiff is Jai Jai Ram Manohar Lal and therein Manohar Lal the owner and proprietor is clearly shown and named.
It is a 24 joint Hindu family business and the defendant and all knew it that Manohar, Lai whose name is there along with the father 's name is the proprietor of it.
The name is not an assumed or fictitious one".
The plaintiff on those averments applied for leave to describe himself in the cause title as "Manohar Lal proprietor of Jai Jai Ram Manohar Lal" and in paragraph 1 to state that he carried on the business in timber in the name of Jai Jai Ram Manohar Lal.
Apparently no reply was filed to this application by the defendant.
The Subordinate Judge granted leave to amend the plaint.
He observed that there was no doubt that the real plaintiff was Manohar Lal himself, that it was Manohar Lal who intended to file and did in fact Me the action, and that the "amendment was intended to bring what in effect had been done in conformity with what in fact should have been done".
The defendant then filed a supplementary written statement raising two additional contentions (1) that Manohar Lal was not the sole owner of the business and that his other brothers were also the owners of the business; and (2) that in any event the amendment became effective from July 18, 1952, and on that account the suit was barred by the law of limitation.
The Trial Judge decreed the claim for Rs. 6,568/6/3.
Against that decree an appeal was preferred to the High Court of Allahabad.
The High Court being of the view that the action was instituted in the name of a "non existing person" and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of "Jai Jai Ram Manohar Lal" on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend of the plaint.
The High Court after making an extensive quotation from the judgment of this Court in purushottam Umedbhai and Company vs Messrs. Manilal and Sons(1) observed that the action could not be instituted by the plaintiff in the business name; it should have been instituted in the name of the Karta of the Hindu undivided family in his representative capacity or else 'all the members of the joint family must join as plaintiffs.
The Court then observed : "The suit instituted by the joint Hindu family business in the name of an assumed business title was a suit by a person, who did not exist and was, therefore, a nullity.
Hence there could be no amendment of the description of such a plaintiff who did not exist in the eye of law.
The court below was in obvious error in thinking otherwise and allowing the name of Manohar Lal to be added as proprietor of the original plaintiff Jai Jai Ram Manohar Lal, which was neither (1) ; 25 a legal entity nor an existing person who could have validly instituted the suit.
" The High Court was also of the opinion that the substitution of the name of Manohar Lal as a plaintiff during the pendency of the action took effect from July 18, 1952, and the action must be deemed to be instituted on that date the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation.
The plaintiff has appealed to this Court with special leave.
The order passed by the High Court cannot be sustained.
Rules of procedure are intended to, be a handmaid 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 pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensed for by an order of costs.
However negligent or careless may have been the first omission, and, however late the proposed amend ment, the amendment may be allowed if it can be made without injustice to the other side.
In Amulakchand Mewaram and others vs Babulal Kanalal Taliwala(1), Beaumont, C.J., in delivering the judgment of the Bombay High Court set out the principles applicable to cases like the present and observed: ". the question whether there should be an amendment or not really turns upon whether the name in which the suit is brought in the name of a non existent person or whether it is merely a misdescription of existing persons.
If the former is the case, the suit is a nullity and no amendment can cure it.
If the latter is the case, prima facie, there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is that the Court should always allow an amendment where any loss to the opposing party can be compensated for by costs.
" In Amulakchand Mewaram 's case(1) a Hindu undivided family sued in its business name.
It was not appreciated at an early stage of the suit that in fact the firm name was not of a partnership, but was the name of a joint Hindu family.
An objection was raised by the defendant that the suit as filed was not maintainable.
An application to amend, the plaint, by substituting the names of the three members of the joint family for the name of the family firm as plaintiffs, was rejected by the Court (1) Sup CI/69 3 26 of First Instance.
In appeal the High Court observed that a suit brought in the name of a firm in a case not within 0.
30 C.P. Code being in fact a case of misdescription of existing persons, leave to amend ought to have been given.
This Court considered a somewhat similar case in Purushottam Umedbhai 's case(1).
A firm carrying on business outside India filed a suit in the firm name in the High Court of Calcutta for a decree for compensation for breach of contract.
The plaintiff then applied for amendment of the plaint by describing the names of all the partners and striking out the name of the firm as a mere misdescription.
The application for amendment was rejected on the view that the original plaint was no plaint in law and it was not a case of misnomer or misdescription, but a case of a non existent firm or a non existent person suing.
In appeal, the High Court held that the description of the plaintiff by a firm name in a case where the Code of Civil Procedure did not permit a suit to be brought in the firm name should properly be considered a case of description of the individual partners of the business and as such a misdescription, which in law can be corrected and should not be considered to amount to a description of a non existent person.
Against the order of he High Court an appeal was preferred to this Court.
This Court observed (at p. 994) : "Since, however, a firm is not a legal entity the privilege of suing in the name of a firm is permissible only to those persons who, as partners, are doing business in India.
Such privilege is not extended to persons who are doing business as partners outside India.
In their case they still have to sue in their individual names.
If, however, under some misapprehension, persons doing business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves, as the suit instituted is by them, they being known collectively as a firm.
It seems, therefore, that a plaint filed in a court in India in the name of a firm doing business outside India is not by itself a nullity.
It is a plaint by all the partners of the firm with a defective description of themselves for the purpose of the Code of Civil Procedure.
in these circumstances, a civil court could permit, under the provisions of section 153 of the Code (or possibly under 0.
VI, r. 17, about which we say nothing), an amendment of the plaint to enable a proper description of the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties." (1) ; 27 These cases do no more than illustrate the well settled rule that all amendments should be permitted as may be necessary for the purpose of determining the real question in controversy between the parties, unless by permitting the amendment injustice may result to the other side.
In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lal.
The plaintiff was competent to sue in his own name as Manager of the Hindu undivided family to which the business belonged; he says he sued on behalf of the family in the business 'name.
The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail, cannot be accepted.
In our view, there is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint.
The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises: the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted.
In our view, the order passed by the Trial Court in granting the amendment was clearly right, and the High Court was in error in dismissing the suit on a technicality wholly unrelated to the merits of the dispute.
Since all this delay has taken place and costs have been thrown away, because the defendant raised and persisted in a plea which had no merit even after the amendment was allowed by the Trial Court, he must pay the costs in this Court and the High Court.
The appeal is allowed and the decree passed by the High Court is set aside.
It appears that the High Court has not dealt with the appeal on the merits.
The proceed ings will stand remanded to the High Court for disposal according to law on the merits of the dispute between the parties.
G.C. Appeal allowed.

summary:
Manoharlal s/o Jai Jai Ram commenced an action in the Court of the Subordinate Judge, for valuer of timber supplied to the defendant.
The action was instituted in the name of 'Jai Jai Ram Manohar Lal ' which was the name in which the business was carried on.
The plaintiff signed and verified the plaint as 'Jai Jai Ram Manohar Lal, by the pen of Manohar lal. ' Later he applied to the Court for leave to amend the plaint.
In the application he averred that the business carried on under the name Jai Jai Ram Manohar Lal was a joint Hindu family business and the name was not an assumed or fictitious one as it contained his name and that of his father.
On these averments he prayed that he be allowed to describe him ' self in the cause title as Manohar Lal proprietor of Jai Jai Ram Manohar Lal and in paragraph 1 to state that he carried on the business in timber in the name of 'Jai Jai Ram Manohar Lal '.
The application was 'allowed by the trial Judge.
The defendant then filed a supplementary written statement raising two additional contentions : (1) that the plaintiff was not the sole owner of the business and that his other brothers were also the owners of the business; and (2) that the amendment took effect from the ' date on which it was made and if so, the suit was barred by limitation.
The trial court rejecting these contentions decreed the suit.
The High Court in appeal took the view that the action having been instituted in the name of a nonexisting person ', and Manohar Lal having failed to aver in the application for amendment that the action was instituted in the name of 'Jai Jai Ram Manohar Lal ' on account of a bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend the plaint.
The High Court further held that the amendment allowed by the trial Court took effect only from the date of amendment, and the action was barred by limitation.
Against the judgment of the High Court the plaintiff, by special leave, appealed to this Court.
HELD : (i) The order passed by the High Court could not be sustained.
Rules of procedure are, intended to, be a handmaid to the administration of justice.
A party cannot be refused relief merely because of same mistake, negligence, inadvertence or even infraction of the rules of procedure.
The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide , or that by his blunder he had caused injury to his opponent which may not be com pensated 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.
[25 C E] Purshottam Umedbhai & Co. V. M/S. Manilal and Sons, ; , explained and applied.
Amulakchand Mewaram & Ors.
vs Babulal Kanalal Taliwala, , applied.
23 In the present case the plaintiff was carrying on business as commission agent in the name of 'Jai Jai Ram Maryohar Lal '.
The plaintiff was competent to sue in his own name as manager of the Hindu undivided family to which the business belonged; he claimed to have filed the suit on behalf of the family in the business name.
The observations made by the High Court that the application for amendment of the plaint could not be granted, because there was no averment therein that the misdescription was 'On account of a bona fide mistake, and on that account the suit must fail, could not be accepted.
There is no rule that unless in an application for 'amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake the court has no power to grant leave to amend the plaint.
The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.
[57 B D] (ii) Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arose and the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff on the date on which it was originally instituted.
[27 E] (iii)The defendant raised and persisted in a plea which had no merit even after the amendment was allowed by the trial court.
In the circumstances he must pay the costs in this Court and the High Court.
[27 F G]


judgement:
Appeal No. 480 of 1967.
Appeal by special leave from the judgment and order dated September 21, 1966 of the Allahabad High Court, Lucknow Bench in Special Appeal No. 16 of 1966.
L. M. Singhvi, B. Datta, D. N. Misra, J. B. Dadachan and O. C. Mathur, for the appellant.
O. P. Rana, for respondents No. 1.
J. P. Goyal, Sobhag Mal Jain and section P. Singh, for respondent No. 4.
The Judgment of the Court was delivered by Shelat, J.
Two questions arise for determination in this appeal, by special leave, against the judgment of the Appellate Bench of the High Court of Allahabad, namely, (1) whether a correction in its award by the Labour Court, Lucknow, was one of an error arising from an accidental omission within the meaning of section 6(6) of the U.P. , XXVIII of 1947 (hereinafter referred to as the Act), and (2) whether, even if it was so, it could so correct after its award was published and had become enforceable.
37 The Central Wage Board for sugar industry, appointed by the Union Government for determining a wage structure, revision of categories of workmen, their fitment into such categories and for fixing the principles governing the grant of bonus, had made certain recommendations.
Amongst its recommendations, the Wage Board recommended that its decision should be brought into effect as from November 1, 1960.
By its notification dated April 27, 1961, the U.P. Government accepted those recommendations including the one that they should be brought into force with effect from November 1, 1960.
On a dispute having arisen between the appellant company and its workmen on the company failing to implement the said recommendations, the State Government referred it to the Labour Court for adjudication under section 4(k) of the Act.
The dispute involved two questions (1) whether the company should fit the workmen named in the reference in the revised categories and in the new wage scales and (2) if so, with effect from what date.
By its award dated November 6, 1963 the Labour Court held that two of the said workmen should be fitted in Grade II(B) and Grade IV respectively and directed the company to do so within one month after the award became enforceable.
It, however, omitted to fix the date from which such fitment should have the effect.
On December 7, 1963 the said award was published in the State Gazette.
The company thereafter fitted the two workmen in the said two grades from a date one month hence after the award became enforceable and not from November 1, 1960.
The workmen 's union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question arising under the reference and the Labour Court accordingly amended its award directing that the two workmen should be placed in the said grades with effect from November 1, 1960.
The order amending the said award was gazetted on June 20, 1964.
The company filed a petition in the High Court for certiorari and for quashing the said order of amendment.
Nigam, J. who heard the petition in the first instance dis missed it holding that (1) the Labour Court had made an error arising from an accidental omission to answer the said second question and therefore had the power to correct it under section 6(6) of the Act, and (2) even if there was no such error arising from accidental omission, the amendment merely provided what was already contained in the notification dated April 27, 1961, that once the Labour Court had directed the company to fit the workmen in the said grades, such fitment had, under the force of that notification, to take effect from November 1, 1960 and that that result was arrived at not by reason of the correction of the award but by force of the original award read with the said notification.
On a letters patent appeal having been filed against the said judgment, the Appellate Bench of the High Court agreed with Nigam, 38 J. that the correction amounted to one of an error arising from the accidental omission to answer the said second question within the scope of section 6(6) of the Act.
The Appellate Bench, however, proceeded to examine the various provisions and the scheme of the Act and held (1) that the jurisdiction of the Labour Court under the Act was of a limited character, (2) that it gets seisen of an industrial dispute only when its jurisdiction is invoked by a reference under section 4(k) or by a voluntary reference to arbitration under section 5B, (3) that under section 4D proceedings before it are deemed to commence from the date of such reference and are, deemed to be completed on the date when its award becomes enforceable, (4) that its jurisdiction which emanates from the reference gets exhausted on the completion of the proceedings before it and the Labour Court itself becomes functus officio on the date when its award becomes final and enforceable, (5) that it cannot thereafter reconstitute itself or take seisen of a dispute, which it has already adjudicated and proceedings relating to it have become concluded, without a fresh reference and (6) that, therefore, its correctional jurisdiction under section 6(6), unlike that of a civil court under section 152 of the Code of Civil Procedure, is not unlimited.
The Appellate Bench on this reasoning held that the two extreme points during which the Labour Court could correct its award were the date of its signing it and the date when the award becomes final and enforceable.
Consequently, the Labour Court had no jurisdiction to correct the award after it became final and enforceable, i.e., after January 7, 1964, on expiry of30 days from December 7, 1963 when it was published and the correction, therefore, was in excess of its jurisdiction and invalid.
The Appellate Bench, however, declined to issue the writ on the ground that the correction did no more than doing justice to the workmen by ordering implementation of the said notification of April 27, 1961 and observing that equity was on the side of the two workmen dismissed the appeal as also the said petition.
Dr. Singhvi, who, on behalf of the company, disputed the correctness of the judgment, contended that (a) no clerical or arithmetical error through any accidental slip or omission had arisen, that section 6(6), therefore, did not apply to the facts of this case, and if at all, the application ought to have been under section 11B, which however, was never invoked; (b) that power under section 6(6) could be exercised only until the date on which the said award became enforceable and not thereafter, that the correctional jurisdiction under section 6 (6) is not without any limit as to time within which it could be invoked or exercised and expired or exhausted itself when the award became final; (c) that the principles of industrial law postulate the finality of an award made under it and that subject to exceptions as in section 6A, once the award had become 39 final it did not contemplate any disturbance of it by amendment or otherwise, and (d) that the High Court was in error in refusing remedy on a supposed consideration of equity once it found lack of jurisdiction in the Labour Court as it in fact did and, therefore, ought to have issued the remedial writ and quashed the impugned order of correction.
As already stated, the Wage Board had recommended revised wage scales, revised categories and fitment of workmen in their respective categories on the revised wage scales as from November 1, 1960.
The State Government had accepted those recommendations fully including the date of their implementation and the consequent fitment of workmen in appropriate categories, and revised wage scales.
Its notification made it clear that such fitment on the revised wage scales should be as recommended by the Wage Board as from November 1, 1960.
In the belief, perhaps, that the said recommendations and their acceptance by the Government were not binding on it, the company did not implement them and hence the union raised the dispute which was ultimately referred to the Labour Court.
The terms of that reference leave no doubt that it comprised of two questions, (1) of fitment and (2) the date from which it was to have effect.
The award of the Labour Court that the company was liable to fit the two workmen in grades 11 and IV respectively and pay them at the revised scales in respect of these grades was ' binding and therefore the company was liable to carry out the fitment and pay the revised scales in accordance with such fitment.
But the award did not decide or fix the date from which the said fitment, when made, was to have effect.
As rightly held by the High Court, the Labour Court thus omitted to answer the second question as it was bound to do and the reference remained partly unadjudicated.
The Labour Court, no doubt, did direct that the award should be implemented within one month after it became enforceable under the Act, i.e., on or before February 7, 1964.
But that direction meant only that the company should fit the two workmen in the two grades it had ordered and still left the question, as to the date from which such fitment was to have effect, unanswered.
Thus, the fact that the Labour Court failed to answer the second question admits of no doubt.
There can also be no doubt that since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if its attention had been drawn it would in all probability have answered the second question also in consonance with those recommendations and the said notification.
There is, therefore, no question that there was an error in the award due to an accidental omission on the part of the Labour Court, which error it undoubtedly had the jurisdiction to correct under section 6(6).
The error was that 40 there was no direction in the award as to the date from which ,the fitment of the two workmen in the said grades and the revised scales should take effect, arising from an accidental omission to answer that part of the reference.
The next question is whether there is under the Act any time limit within which the correction of the award can be made.
The impugned correction, no doubt, was made by the Labour Court after its award had become final and enforceable.
The principal premise in the High Court 's reasoning as also in that of counsel for the company was that the jurisdiction of the Labour Court to correct the award ceased when the award became final and enforceable.
It may be observed at the very outset that no time limit within which such correction can be made has been laid down in any express terms in s: 6 (6).
The question, therefore, is whether any such time limit can be inferred either from section 6 or from the other provisions of the Act.
Section 4 (k) enables the, State Government to refer an industrial dispute which either exists or is apprehended to the Labour Court if the matter of the industrial dispute is one of those contained in the First Schedule to the Act or to a Tribunal if it is one contained in the first or the second Schedule.
Even if the dispute relates to a matter in the second Schedule, if it is not likely to affect more than 100 workmen, the Government can, if it so thinks fit, refer such a dispute to the Labour Court.
Under section 5B where any industrial dispute exists or is apprehended and the employer and the workmen agree, they may refer the dispute to arbitration of such person or persons including the presiding officer of a Labour Court or a Tribunal as may be specified in the arbitration agreement.
Section 6(1) enjoins upon the Labour Court and the Tribunal to which an industrial dispute is referred for adjudication to hold its proceedings expeditiously and submit its award to the State Government as soon as it is practicable on the conclusion thereof.
Subsec.
3 provides that subject to the provisions of sub section
4 every arbitration award and the award of a Labour Court or a Tribunal shall, within 30 days from the date of its receipt by the State Government, be published in such manner as the State Govern ment thinks fit.
Sub section
4, to which sub section 3 is made subject, authorises the State Government before publication of an award of a Labour Court or a Tribunal to remit it for its reconsideration and provides that after such reconsideration it shall submit its award to the Government and the State Government, shall thereupon publish it in the manner provided in sub section
Sub section
5 provides that subject to the provisions of section 6A an award published under sub section
3 shall be final and shall not be called in question in any court in any manner whatsoever Section 6A, to the provisions of which section 6(5) is made subject, provides by its sub section
that an award, including an arbitration award, shall become en 41 forceable on the expiry of 30 days from the date of its publication.
The first proviso thereof empowers the State Government, if it is of the opinion that it is inexpedient on public grounds affecting national or State economy or social justice to give effect to the whole or any part of the award, to declare by notification in the official gazette that it shall not become enforceable on the expiry of the said period of 30 days.
The, second proviso pro vides, that an arbitration award shall not become enforceable if the State Government is satisfied that it was given or obtained.
through collusion, fraud or misrepresentation.
Thus, even though an award has been published under section 6(3) and has become final and would ordinarily become enforceable on expiry of 30 days from such publication, the , State Government can make a declaration under the first proviso and under sub section 2 can within 90 days from its publication make an order either rejecting or modifying it, in which event it has to lay the award and its said order before the State Legislature.
Sub section
3 provides that if an award is rejected or modified by an order under sub section 2 and is laid before the Legislature, it shall become enforceable within 15 days from the date it is so laid.
But where no such order under sub section 2 has been made, it shall become enforceable on the expiry of 90 days referred to in sub section
Sub section 4 provides that subject to sub sections 1 and 3, an award shall come into; operation with effect from such date as may be specified therein but where no such date, is specified it shall come into operations on the date when the award becomes enforceable under sub section 1 or sub section 3, as the case may be.
The provisions of section 6, and section 6A thus make it clear that whereas the former provides for the award becoming final, the latter provides for its enforceability and the time from which it has to be implemented.
The two characteristics of the award, i.e., its finality on publication and its enforceability under section 6A, are distinct, having different points of ' time and should not, therefore, be mixed up, for, though an award has become final on its publication under section 6 it becomes en forceable in accordance with and subject to the eventualities provided in section 6A.
There are thus three different stages in the case of an award; (1) when it is signed by the adjudicating authority, (2) when it is published by the St ate Government in the prescribed manner and (3) when it becomes enforceable.
Even though an award may have become final on its being published, it becomes enforceable subject to the expiry of the different periods and the events prescribed in section 6A.
The scheme of sections 6 and 6A is to retain a certain amount of control over awards, including an arbitration award, with the State Government.
An award, therefore, does not become final as it ordinarily would be when the adjudicating authority signs M 12 Sup.
CI/69 4 42 it but becomes final when it is published in the manner prescried by the State Government.
Before such publication the Government is given the power to remit it to the adjudicating authority for reconsideration and the State Government has to publish it on its being resubmitted to it.
In spite of its becoming final on such publication it becomes enforceable only on the expiry of 30 ,days after it has become final as laid down by sub section 1 of section 6A.
But it does not so become enforceable if the Government were to make a declaration under the first proviso and an order under sub section
2 or the award specifies a date which is later than 30 days after its publication.
Therefore, the words "subject to the provisions of section 6A" in sub section 5 ' of section 6 must mean that though an award has become final on its being published it does not immediately or automatically begin to be operative as that finality is subject to the expiry of periods and the powers of the State Government under section 6A. Having seen the effect of the provisions of sections 6 and 6A, we have next to consider the scope of the correctional jurisdiction conferred on the adjudicating authority under sub section
6 of section 6.
As already observed, the sub section does not lay down in any express terms any time limit within which such jurisdiction is to be exercised.
It contemplates a correction both before and after the publication of the award, i.e. after it has become final.
If it ,is corrected before its publication the correction would be carried out without anything further having to be done.
But if it is corrected after its publication and after it has become final, a copy of the order of correction has to be sent to the State Government and the provisions as to publication of an award under section 6(3) are mutatis mutandis applicable.
The correctional jurisdiction is limited only to cases where clerical or arithmetical mistakes or errors arising from an accidental slip or omission have occurred. 'Though section 6(6) does not expressly provide for any time limit, the High Court appears to have been much impressed by section 6D which lays down the two points as to the commencement and the completion of proceedings before a labour court and a tribunal.
From these two limits it came to the conclusion that though no time limit is expressly provided in section 6(6) it must be inferred that the correctional jurisdiction under section 6(6) can only be exercised upto the time that the award becomes final and enforceable.
It will be observed that though section 6(6) empowers all the three adjudicating authorities, namely, a labour court, a tribunal and an arbitrator, to correct the award, section 6D lays down the two points of commencement and completion of proceedings only in the case of a labour court and a tribunal.
Section 6D, therefore, does not furnish an indication or a ground for inferring a time limit in section 6 (6) in the case of an award by an arbitrator.
Would that mean that though, according to the High Court, 43 there is a period within which a labour court and a tribunal can exercise the correctional jurisdiction, there would be no such limit in the case of an award by an arbitrator? In our view no such result could have been contemplated.
It would thus, appear that the two extremeties of time provided in section 6D cannot be used as a ground for inferring a time limit for the correctional jurisdiction under section 6(6).
Acceptance of the High Court 's reasoning becomes still more difficult when we examine the premises of that reasoning.
The High Court does not appear to be sure whether the limit as to time is to be the date of finality of the award or its enforceability, for, it states that the correctional jurisdiction can be exercised until the award has become final and enforceable.
As already stated, the concepts of finality and enforceability of an award are distinct and have been dealt with by the Legislature separately in sections 6 and 6A.
If it is to be reasoned that the correctional Jurisdiction can be exercised till the date when the award is published and becomes final, such a reasoning would be contrary to the provisions of section 6(6) themselves which envisages correction of an award even after it is published and has become final.
Sub section
6 expressly provides that when so corrected, the order correcting it has to be published in the manner prescribed under and within the time provided in section 6(3).
It is, therefore, manifest that the date when an award becomes final cannot be the date within which the power under section 6 (6) has to be exercised.
If, it is to be held, on the other hand, that the power to correct is to be exercised until the award has become enforceable,, the difficulty would be that there is nothing either in section 6 or section 6A or section 6D which warrants such a limitation by implication.
Is it that an award is really final when it becomes enforceable? Such a conclusion would, firstly, be contrary to the clear language of section 6 and, secondly would lead to a curious result that though it has become final on publication, it is not really so, as that finality is subject to the provisions of section 6A.
In that case, an award can be challenged in a court during the interval between its publication and the date when it becomes enforceable.
That would be so, despite the clear language of section 6(5) that an award becoming final on publication cannot thence be challenged in any court whatsoever.
Laying down by implication the time limit during which the correctional jurisdiction under section 6(6) can be exercised upto the time of the award becoming final under section 6 (5) or becoming enforceable under section 6A creates difficulties, besides, it would appear, being contrary to the provisions of these two sections and is therefore not commendable.
The correctional jurisdiction conferred on the adjudicating authority under section 6 (6) is in terms identical with the one conferred under section 152 of the Code of Civil Procedure and rule 28 of the Industrial Disputes 44 (Central) Rules 1957 and is in consonance with the first and foremost principle that no party should suffer any detriment on account of a mistake or an error committed by an adjudicating authority.
The circumstance that the proceedings before a labour court and a tribunal are deemed to be concluded under section 6D when their award becomes enforceable or that thereupon they become functus officio would also be no ground for inferring any limitation of time in section 6 (6), for, that would also be the case in the case of a civil court or an adjudicating authority under the even without a provision like section 6D and yet the legislature has not chosen in the case of either of them to lay down any limitation of 'time for exercising its correctional jurisdiction.
In our view, there are no compelling reasons to read into section 6(6) any such limitation by implication.
We are also not impressed with the difficulty which the High Court supposed would result in case section 6(6) is interpreted as not having by implication any time limit within which the, correctional power can be exercised by any of the three adjudicating authorities.
The High Court felt that if there is no such time limit an award, even after it has become enforceable and in some cases even implemented, would be rendered unsettled.
But as already stated, the power is a limited one which can be exercised only in cases where a mistake, clerical or arithmetical or an error arising from an accidental slip or omission has occurred.
The award thus would have to be corrected only within this circumscribed field.
It may be that the correction of an award might to a certain extent have an unsettling effect to what has already become settled, but the correction is made not due to any fault of the parties but of the adjudicating authority whose accidental slip or omission cannot be allowed to prejudice the interests of the parties.
We do not visualise any substantial hardship resulting from the exercise of this power which the High Court thought might arise if an award is allowed to be amended even after it has become enforceable or even if it has been enforced.
A similar difficulty can also be imagined when a civil court exercises a similar power under section 152 of the Code of Civil Procedure.
But no one has so far suggested that because of that difficulty a limitation must be inferred in that section.
A similar difficulty would also arise under r. 28 of the Industrial Disputes (Central) Rules, 1957.
But so far no one has read a similar limitation in the correctional power provided by that rule.
In our view the error which the Labour Court corrected clearly fell within section 6(6) and could be corrected even after the award had become final as a result of its having been published and had become enforceable under section 6A.
In this view it is not necessary to consider s 1 1 B or its effect especially as it is nobody 's case 45 that it was at any stage invoked or resorted to.
In the view that we have taken it was section 6 (6) and not section 1 1B which could on the facts of this case be resorted to.
The appeal, therefore, is dismissed though for reasons different from those given by the High Court.
The appellant company will pay the costs of this appeal to the respondents.
V.P.S. Appeal dismissed.

summary:
The Central Wage Board for sugar industry had recommended revised wage scales, revised categories and fitment of workmen into those, scales and categories as from November 1, 1960.
The State Government had 'accepted those recommendations fully including the date of implementation.
The appellant company, however, did not implement them and hence, its workmen raised a dispute and two questions were referred to the Labour Court namely : (1) of fitment of certain workmen in the new grades, and (2) the date from which it was to have effect.
By its award, the Labour Court held that two of the workmen should be fitted into certain grades and directed the company to do so within one month after the award became enforceable, but, omitted to fix the date from which such fitment should have effect.
On December 7. 1963, the 'award was published in the State Gazette and, under section 6A(1) of the U.P. , it became enforceable on January 7.
The appellant fitted the two workmen in the two grades from February 7, 1964, that is, one month after the award became enforceable.
The union thereupon applied to the Labour Court to amend its award on the ground that it had omitted to answer the second question referred to it and the Labour Court amended its award and directed that the two workmen should be placed in their respective grades from November 1, 1960, as recommended by the Wage Board.
The amendment was published in the Gazette on June 20, 1964.
The appellant filed a writ petition in the High Court for quashing the order of amendment, but the High Court dismissed the petition.
In appeal to this Court, on the questions : (1) Whether the correction was of an error arising from an accidental omission within the meaning of a. 6 (6) of the Act; and (2) Whether the award could be, corrected (i) after it was published in the Gazette 'and had become final, and (ii) after it had become ,enforceable.
HELD : (1) Section 6(6) enables the Labour Court to correct an accidental omission.
in the present case, the Labour Court omitted to answer the second question which it was bound to answer.
Since the first question was answered by it in accordance with the Wage Board 's recommendations and the Government 's notification accepting them fully, if the attention of the Labour Court had been drawn, it would have answered the second question also in consonance with those recommendations and the notification.
Therefore, there was an error in the award due to an accidental omission within the meaning of section 6(6) of the Act.
[39 G H; 40A] (2) (i) The scheme of sections 6 and 6A shows that there are 3 different stages before an award becomes enforceable, namely : (a) when the award is signed by the adjudicating authority; (b) when it is published and be, comes final; and (c) when it becomes enforceable under section 6A. Section 6(6) does not lay down expressly any time limit within which the correctional jurisdiction under the section should be exercised.
To hold by implication that such jurisdiction can only be exercised till the date of publica 36 tion when the award becomes final, would be contrary to the sub section which envisages the correction of an award even after it is published and has become final.
[40 C; 41 G H: 42 D E] (ii)There is nothing in sections 6, 6A or 6D to imply the limitation namely, that the power to correct is to be exercised only before the award becomes enforceable.
The circumstance that the proceedings before a Labour Court and a Tribunal are deemed to be concluded under section 6D when their award becomes enforceable and they become functus officio would be no ground for inferring such a time limit, because : (a) Since an arbitrator is not mentioned in section 6D it would lead to the result, which could not have been intended, that there is a time limit only for the Labour Court and Tribunal and not for an arbitrator; and (b) the power is similar to that of a civil court under section 152 C.P.C. or under r. 28 of the Industrial Disputes (Central) Rules, 1957 of an adjudicating 'authority under the , and is based upon the principle that no party should suffer any detriment I on account of a mistake or an error committed by any adjudicating authority, and no limitation of time for exercising the correctional jurisdiction is implied even though a civil court or an adjudicating authority under the also become functus officio after their judgment or award becomes enforceable.
Also, there is no hardship in holding that the Labour Court could correct an error under section 6(6) even after the award had become final as a result of the publication, or 'after it had become enforceable under section 6A, because, the correction is within a circumscribed field, namely, only in cases where a mistake, clerical or arithmetical, or an error arising from an accidental slip or omission, has occurred.
[42 G H; 43 A B, C E, G H; 44 A H]