Rules of procedure are intended to be 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.
Amendment under S. 153, C.P.C. may be allowed for impleadment of the legal representatives of the deceased respondent who was dead at the time of filing the appeal.
The appellate court has authority to allow the appellant to implead the legal representatives of the deceased respondent who was dead at the time of filing the appeal by permitting him to amend the appeal.
However, the appeal against the added parties will be deemed to have been filed on the day when such application for seeking permission to amend the cause title of the appeal is filed. It will be for the appellate court to see as to whether the said appeal is to be treated as having been filed within time, and as to whether there is sufficient cause for condoning the delay in filing the appeal.
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. This 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 can permit, under the provisions of S. 153 of the Code (or possibly under Order VI, Rule 17, about which the learned Judges of the Supreme Court said nothing), an amendment of the plaint to enable description of the plaintiffs to appear in it in order to assist the court in determining the real question or issue between the parties.
153-A. Power to amend decree or order where appeal is summarily dismissed:
Where an appellate court dismisses an appeal under Rule 11 of Order XLI, the power of the court to amend, under section 152, the decree or order appealed against may be exercised by the court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the court of first instance.
A new section, S. 153A has been added by the Amendment Act, 1976, so as to make it clear that, even in a case where the appellate court has summarily dismissed the appeal under Rule 11 of Order XLI of the Code, the power of the court to amend judgments, decrees or orders under S. 152 shall be exercised by the court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order passed by the court of first instance.
The provision of S. 153A is enabling in character which permits the court of first instance also to correct an error in the decree irrespective of the fact that the decree had merged in the decree of a superior court. The provision does not divest the superior court of its jurisdiction to effect correction in the decree itself.
Although the Objects and Reasons of the Bill resulting in the introduction of S. 153A show that S. 153A was introduced in the Code on account of conflict in opinion in the High court’s as to whether it was the appellate court or the trial court which could direct the correction on the plain language used in S. 153A, it is not possible to take the view that the ambit of power contained therein can be curtailed by the Statement of Objects and Reasons which itself does not contain anything to lead to the narrower construction attempted to be put in.
153-B. Place of trial to be deemed to be open Court:
The place in which any Civil Court is held for the purpose of trying any suit shall be deemed to be an open Court, to which the public generally may have access so far as the same can conveniently contain them:
Provided that the presiding Judge may, if he thinks fit, order at any stage of any inquiry into a trial of any particular case, that the public generally or any particular person, shall not have access to or be or remain in, the room or building used by the court.
An express provision on the analogy of section 327 of the Code of Criminal Procedure, 1973, has been made in the Code of Civil Procedure, providing that the place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court to which the public generally may have access so far as the same can conveniently contain them.
The presiding Judge may, however, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.