Bona fide mistake in appeal party array may justify amendment and condonation of delay when substantial justice is served.

Delay in seeking amendment of an appeal memorandum to add omitted respondents may be condoned where the omission stems from a bona fide clerical or professional mistake and not from gross negligence or want of reasonable diligence. The note explains that, when an appeal is filed in time but the party array is defective, the court may permit amendment under the Civil Procedure Code to advance substantial justice, particularly if no substantive prejudice is shown to the added respondents. On those facts, the delay was condoned and amendment was allowed on terms, subject to costs.

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Issues: Whether delay in seeking amendment of the memorandum of appeal by adding omitted respondents could be condoned under the Limitation Act and amendment allowed under the Civil Procedure Code on the ground of a bona fide mistake made without gross negligence.

Analysis: The application arose from omission to implead two decree-holders in the appeal, one because a substituted party was not noticed and the other because the source copy used for preparing the memorandum was incorrect. The Court examined whether the omission was attributable to lack of due care by the appellant or his agent, or whether it resulted from a bona fide clerical and professional mistake. It was held that the facts did not justify attributing gross negligence or want of reasonable diligence to the appellant, and that the mistake was substantially due to an error in the papers supplied and the manner in which the memorandum was prepared. The Court further held that where an appeal has been filed in time but the party array is defective, the discretion to permit amendment may be exercised to advance substantial justice, especially when no substantive prejudice to the added respondents is shown.

Conclusion: The delay was condoned and the amendment adding the omitted respondents was allowed on terms, the application succeeding subject to payment of costs.

Final Conclusion: A bona fide mistake in the party array, unaccompanied by gross negligence and causing no substantive prejudice, can justify discretionary relief enabling correction of the appeal memorandum in the interests of substantial justice.

Ratio Decidendi: In a timely filed appeal, a bona fide mistake in omitting necessary parties may be corrected by amendment and the delay condoned where the omission is not due to gross negligence and the court is satisfied that substantial justice requires exercise of discretion in favour of the applicant.

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