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The Prince Line, Limited Vs. the Trustees of the Port of Bombay - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1592 of 1943
Judge
Reported in(1949)51BOMLR1004
AppellantThe Prince Line, Limited
RespondentThe Trustees of the Port of Bombay
DispositionSuit dismissed
Excerpt:
civil procedure code (act v of 1908), order iv, rule 1; order vi, rules 14, 15-bombay port trust act (bom. vi of, 1879), section 87-indian limitation act (ix of 1908), article 36-suit based on torts filed under special power of attorney held not properly instituted-suit adjourned to enable plaintiffs to grant general power of attorney-plaint resigned and redeclared-whether suit instituted on date of resigning and redeclaring of plaint.;the plaintiffs in an action on tort filed a suit against the defendants on november 19, 1943, on a cause of action which had accrued on may 25, 1943. the suit was filed under a special power of attorney executed by the plaintiffs in favour of tm & co., who signed and declared the plaint. the trial judge on july 15, 1917, held that the power of attorney.....bhagwati, j.1. [his lordship after stating facts as above proceeded.] this being the position, it remains to be determined how far the defendants or one or more of them are liable to the plaintiffs on the two counts, nam ely negligence and breach of duty which are charged against them in the plaint. before, however, i come to determine the question of their liability to the plaintiffs, i shall first of all deal with the point of limitation which ha s been urged by the defendants. the point of limitation arises in this way. as noted before the suit came to be filed by the plaintiffs on november 19, 1943, under a special power-of-attorney executed by the plaintiffs in favour of messrs. turner morrison & co., ltd. the suit as filed was well within six months of the accrual of the cause of.....
Judgment:

Bhagwati, J.

1. [His Lordship after stating facts as above proceeded.] This being the position, it remains to be determined how far the defendants or one or more of them are liable to the plaintiffs on the two counts, nam ely negligence and breach of duty which are charged against them in the plaint. Before, however, I come to determine the question of their liability to the plaintiffs, I shall first of all deal with the point of limitation which ha s been urged by the defendants. The point of limitation arises in this way. As noted before the suit came to be filed by the plaintiffs on November 19, 1943, under a special power-of-attorney executed by the plaintiffs in favour of Messrs. Turner Morrison & Co., Ltd. The suit as filed was well within six months of the accrual of the cause of the action, viz. the damage by the fire on May 25, 1943, within the meaning of Section 87 of the Bombay Port Trust Act and if the suit had been held to be properly filed on November 19, 1943, there was nothing more to do. Mr. Justice Chagla, however, held on July 15, 1947, that that power-of-attorney being a special power-of-attorney was of no avail and that the suit was not properly instituted, the plaint having been signed and declared by Messrs. Turner Morrison & Co., Ltd., who held only a special power-of-attorney from the plaintiffs. He adjourned the suit to enable the plaintiffs to grant a general power-of-attorney to their constituted attorneys and to enable the latter to properly sign and verify the plaint and the resigning and re declaration of the plaint were made on August 22, 1947, after the requisite general power of attorney had been granted and executed by the plaintiffs. The question that has been agitated before me is that it was only on August 22, 1947,, that the suit can be said to have been filed and if the suit can be said to have been filed only on August 22', 1947, the same would be barred by limitation not only under Section 87 of the Bombay Port Trust Act as having been more than six months from the accrual of f he cause of action, but also under Article 36 of the Indian Limitation Act, which prescribes two years period of limitation in respect of all suits which are filed in respect of malfeasance, misfeasance and nonfeasance, i.e. in respect of all actions on torts in general.

2. It therefore lies to be determined as to whether the suit could be said to have been filed only on the resigning and re declaration of the plaint on August 22, 1947. It was contended on behalf of the plaintiffs that the signing and declaration of the plaint in accordance with the provisions of Order VI, Rule 14, and Order VI, Rule IS, of the Civil Procedure Code, are merely formal acts and mere matters of procedure. A pleading which is not signed by the plaintiff or by a person duly authorised by him in that behalf can be allowed to be resigned and re declared if the defect is discovered in time before the judgment and even before the Appellate Court if the defect is not discovered till then, and this can be allowed to be done by the Court even after the expiry of the period of limitation. Reliance was placed in this behalf on the commentaries of Sir Dinshah Mulla under Order VI, Rule 15, of the Civil Procedure Code, at pp. 587 and 588 of the 11th ed. of Sir Dinshah Mulla's Civil 'Procedure Code. My attention was also drawn to several authorities of this Court as well as the other High Courts in this behalf. A decision of their Lordships of the Privy Council in Mohini Mohun Das v. Bunasi Buddan Saha Das I.L.R. (1889) Cal. 580 was relied upon for the purpose of showing that there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint and that though one of the three joint-creditors, who had been named as plaintiffs in the suit, had signed and verified the plaint and others had not, the suit was held not to be defective for want of parties when it was filed. It may be observed that this decision of their Lordships of the Privy Council was reached in a case where the joint-creditors who did not sign and verify the plaint had in fact authorised their co-plaintiff to institute the suit on their behalf and the suit as filed was not bad at least so far as the plaintiff signing and verifying the plaint was concerned. No doubt the other co-plaintiffs of his should also have signed and verified the plaint along with him. Their Lordships, however, held that in so far as one of the plaintiffs had properly signed and verified the plaint and there was no rule that a person named as a co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint there was no bar to the suit being treated as an effective suit from the very inception. The case before their Lordships was not that of a plaint which was neither signed nor verified by any person acting on his own or duly authorised in that behalf. The next case relied upon by the plaintiffs was Ali Muhammad Khan v. Ishaq Ali Khan I.L.R. (1931) All. 57 a decision of the full bench of the Allahabad High Court. There a suit was filed in the name of the plaintiff by his mother acting as guardian and next friend and describing him as a minor, while in fact he was of age. It was found that the suit had been authorised by him and that it was prosecuted by him in person and the learned Judges observed at p. 62 that there was no rule which in express terms required that the plaintiffs should file the plaint personally, nor was there any rule which expressly said that it should be filed by a person holding a general power-of-attorney on behalf of the plaintiff, or otherwise duly authorised by the latter. As there was no specific rule either requiring or expressly authorising the plaintiff to present the plaint, it was doubtful whether Order III, Rule 1, of the Civil Procedure Code, would apply to such a case. If it did not apply, the presentation by a person orally authorised to do so would be valid. Even if it did apply they were clearly of the opinion that the omission to comply with that provision would be a mere irregularity and not an absence of jurisdiction. They further observed that the presentation of a plaint under such circumstances would be irregular and the Court would then have the discretion to allow the irregularity to be cured or not. If the plaintiff had acted in good faith and without gross negligence and it was fair and just to allow the defect to be cured, the Court would undoubtedly do so. Under the circumstances they therefore held that the defect could be allowed to be cured by the plaintiff signing and verifying the plaint himself after striking out the description of his as a minor by his guardian and next friend his mother. It may be observed that in this case also the Court reached the conclusion that the suit had been in fact properly filed and it was a matter of merely curing the irregularity which, having the jurisdiction to entertain the suit, the Court had the power to under proper circumstances. This case really therefore is an authority for the proposition that in proper cases the Court has always got the jurisdiction in the exercise of its discretion and in the interests of justice to allow the amendment to be made or the defect to be cured when in fact the suit was filed with authority and was otherwise properly instituted.

3. The next case relied upon by the plaintiffs was Ramgopal Ghose v. Dhirendra Naih Sen I.L.R. (1927) Cal. 380 The plaint in that suit was not duly verified, in accordance with the provisions of Order VI, Rule 15(2), of the Civil Procedure Code, and on an objection being taken in that behalf, the plaint was duly verified on December 8, 1946. ' When the verification was thus amended on December 8, 1926, the period of limitation had expired and if the plaint had been taken as having been presented on December 8, 1926, and not on August 25, 1925, on which date in fact it had been presented, the suit would have been certainly barred by the law of limitation. It was held by the Court that when a pleading did not conform to the provisions of 0, VI, Rule 15, that defect was a mere irregularity that could be cured by amendment and the plaint must be under these circumstances taken to have been presented on August 25, 1925, and not on December 8, 1923, when the verification was amended. The learned Judge in support of his conclusion relied upon the cases reported in Shib Deo Miasrav. Rani'Prasad I.L.R. (1924) All. 637 and Charan Das v. Amir Khan (1920) L.R. 47 IndAp 255 : 22 Bom. L.R. 1370 The former case of Shib Deo Miasra v. Ram Prasad proceeded on the basis that the plaint which was filed without having been verified in the manner prescribed by the Code of Civil Procedure was not an invalid document, but may be verified at a later stage of the suit, even after the expiry of limitation. The Court therefore held that the omission was an irregularity which could be cured even at a late stage, that merely on the ground of such defect the plaint was not altogether invalid, that the subsequent verification was not an amendment of the plaint and that therefore the defect could be cured even after the expiry of the period of limitation. The latter case of Charan Das v. Amir Khan really went one step further. Their Lordships there held that although the power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect was to take away from the defendant a legal right which had accrued to him by the lapse of time, yet there were cases in which that consideration was outweighed by the special circumstances of the case. In the case before their Lordships both the trial Court and the first appellate Court had disallowed the amendment which had been asked for by the plaintiff bat the second appellate Court had allowed the same and their Lordships held that the discretion exercised in allowing the amendment should not be interfered with. On a perusal of these cases it appears that in proper cases and in order to meet the ends of justice, the Court has always got the power to allow the defect to be cured by an amendment of the plaint or by allowing the resigning and re-declaration of the plaint even at the stage when the defendant would be entitled to plead the bar of limitation. If that discretion is exercised by the Court, the curing of the defect or the amendment of the plaint would be effective as from the date of the institution of the suit itself and it would then not be open to the defendant to plead the bar of limitation and that was the only decision which was reached by Mr. Justice Mirza in the latest case which was relied upon by the plaintiffs, viz. Nanjibhai v. Popailal (1931) 34 Bom. L.R. 628. The learned Judge there held that the plaint filed within time, can, if not properly signed, be allowed to be signed by the plaintiff at a later stage, irrespective of the bar of limitation. In that case the cause of action had accrued to the plaintiff on March 8, 1924. The suit had been filed on February 28, 1929, and if the amendment asked for was then allowed, it would have had the effect of defeating the defendants' right in respect of the bar of limitation. The learned Judge proceeded to consider whether the case before him could be regarded as a very special case in. which case he should grant the plaintiff's application. He then considered the various authorities in this behalf and ultimately came to the conclusion that the defect in the plaint was a technical irregularity and that the amendment, if made, apart from prejudicing the defendants' right under the law of limitation, would not affect the merits of the action. For the ends of justice therefore he thought he should allow the amendment which had been asked for and actually did so though by reason of the plaintiff's negligence to conform to the rules of the Court, he ordered him to pay all costs up to date including the costs of the amendment.

4. The position therefore which emerges on' these authorities is that the Court has always got the discretion if a plaint is not properly presented or is not signed and verified hi accordance with the provisions of Order VI, Rule 14, and Order VI, Rule 15, of the Civil Procedure Code, to allow the plaintiff to remedy the defect at a later stage even though the period of limitation may already have expired. But that is a matter of the discretion of the Court which the Court exercises after due consideration of all the facts and circumstances of the case before it. If after a due deliberation of all these facts, the Court comes to the conclusion that it is just that, in the exercise of its discretion, it should allow the defect to be cured, it can do so irrespective of the fact that the defendant has vested in him by that time a right to plead the bar of limitation. If the discretion is exercised by the Court in favour of the plaintiff, the result would be that the defect would be cured and the defendant would be deprived of his right to plead the bar of limitation. But where while granting the amendment or the opportunity to the plaintiff to cure the defect, the Court reserves unto the defendant, the right to plead the bar of limitation, the position in my opinion would be quite different. In such a case the defendant would not be deprived of his right to plead the bar of limitation and the plaintiff would have to meet that point when properly raised by the defendant at any subsequent stage. In the case before me the learned Judge while adjourning the suit on July 15, 1947, expressly reserved to the defendant the right to plead the bar of limitation. The only thing which he allowed the plaintiffs to do was to grant the constituted attorneys a general power-of-attorney so as to enable them to resign and re declare the plaint in accordance with the provisions of law. In so doing he did not exercise the discretion in the manner so as to deprive the defendants of their right to plead the bar of limitation, but on the contrary in express terms reserved the same unto them. The question therefore which survives is whether the resigning and re declaration of this plaint in pursuance of the general power-of-attorney on August 22, 1947, had the effect of preserving the suit as originally filed on November 19, 1943, or making the suit one instituted on August 22, 1947, which was the date on which the plaint was resigned and re declared. All the cases which have been above referred to by me and which go to show that the signing and the verification of the plaint are mere matters of procedure and the plaint can be allowed to be resigned and or revivified or re declared at a subsequent stage even after the period of limitation has expired do not help the plaintiffs. As I have already observed the Court can in a proper case in order to serve the ends of justice allow the plaintiff to resign and revivify the plaint and thus deprive the defendant of the right to plead the bar of limitation which has accrued to him, but that does not mean that where the Court expressly reserves to the defendant the right to plead the bar of limitation, the order made by the Court has the effect of taking the same away from him, even though the signing and verification of the plaint be generally taken as a mere matter of form or procedure. If one turns to Order IV, Rule 1, of the Civil Procedure Code, which deals with the institution of the suit, it prescribes that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. It further prescribes that every plaint shall comply with the rules contained in Os. VI and VII so far as they are applicable. In order, therefore, that a plaint can be properly presented to the Court, it must comply with the provisions of Order VI, Rule 14, and Order VI, Rule 15, and it is only when a plaint which complies with these rules, so far as they are applicable, is presented to the Court that a suit can be said to be instituted in the Court. Strictly speaking, therefore, unless and until a plaint is presented to the Court complying with the provisions contained in Order VI, Rule 14, and Order VI, Rule 15, it cannot be said that a proper plaint is presented to the Court and unless such a proper plaint is presented to the Court, it cannot be said that the suit has been instituted in the Court by a party. I would, therefore, on a strict reading of the provisions of Order IV, Rule 1, hold that the plaint which had not been, properly signed a'd verified in accordance with the provisions of Order VI, Rule 14, and Order VI, Rule 15, was not a proper plaint presented before the Court and no suit was therefore instituted in the Court within the meaning of Order IV, Rule 1. I am fortified in this conclusion of mine by the observations of the Appellate Court reported in Uttamram Vithaldas v. Thakordas Parshotfamdas I.L.R. (1921) Bom. 150 : 23 Bom. L.R. 911 The bench the consisted of Sir Norman Macleod C.J. and Mr. Justice Shah. The matter came before the Appellate Court by way of Civil Extraordinary Application No. 35 of 1921. The suit had been filed in the Court of the First Class Subordinate Judge at Surat to recover a sum of Rs. 279-1-3 from the defendant. In the course of the plaintiff's deposition before the Court, it was found that the plaint and vakilpatra were signed by the plaintiff's clerk and the learned Subordinate Judge dismissed the suit holding that the plaint was not properly presented by the plaintiff and that the pleader presenting the plaint was not duly authorised. This being so the Civil Extraordinary Application was filed against this decision by the plaintiff to the High Court and the Appellate Court there held that the learned Judge was right in holding that the plaint was not properly presented and was not duly signed and that the plaintiff had made no effort to prove that Vithaldas was his recognised agent trading on his behalf while he was away from the jurisdiction. The learned Judges, however, thought that if the plaintiff had applied to be allowed to sign the plaint and present it on that day, he should have been allowed to do so. Then of course the question of limitation would arise, but they had nothing to do at that stage with that; so that to that extent the rule was made absolute, the decree dismissing the suit was set aside and the plaintiff was given an opportunity of having his suit considered as if it had been filed on December 23, 1920, which was the date of the dismissal of the suit by the learned Subordinate Judge. This decision to my mind lays down the correct proposition, namely that unless there is a properly signed and verified plaint in accordance with the provisions of Order VI, Rule 14, and Order VI, Rule 15, it cannot be said to be a properly signed and verified plaint which can be presented to the Court, in order that the suit may be said to have been instituted or filed in the Court. It was therefore that the learned Judges of the Appellate Court stated that the suit would then be considered as if it was filed on December 3, 1920, the date on which the learned Subordinate Judge dismissed the suit instead of allowing the plaintiff to sign the plaint and present it before the Court on that very day. This judgment of the learned Judges in Uttamram Vtthaldm v. Thakordas Parshottamdas is, in my opinion, quite in conformity with the provisions of Order IV, Rule 1, of the Civil Procedure Code. Unless and until the defect is cured and the plaint is properly signed and verified and thereafter presented to the Court, it cannot be said that the suit has been instituted or filed in the Court. No doubt in proper cases where the Court allows same to be done brushing aside the right which has accrued to the defendant to plead the bar of limitation in the exercise of its discretion as above stated, the situation may be different and having regard to the observations of their Lordships in Charan Das v. Amir Khan (1920) L.R. 47 IndAp 255 : 22 Bom. L.R. 1370 the result would be that the right which the defendant has to plead the bar of limitation may be taken away from him but in the absence of any such exercise of discretion by the Court and particularly in cases where the Court expressly reserves to the defendant the right to plead the bar of limitation, which has accrued to him as in the case before me, the position would be that even though the plaint was resigned and re declared thereafter the suit can only be said to have been instituted after the defect is cured and the right of the defendant to plead the bar of limitation would not be taken away. My attention was drawn to the fact that this case of Uttamram Vithaldas v. Thctkordas Parshottamdas I.L.R. (1921) Bom. 150 : 23 Bom. L.R. 911 was referred to by Mr. Justice Mirza and commented upon in Nanjibhai v. Popailal (1931) 34 Bom. L.R. 628 The learned Judge there considered the observations of the Appellate Court in Uttamram Vithaldas v. Thakordas Parshottamdas, which I have above referred to but treated the same as obiter dkta. With the utmost respect to the learned Judge, I am not inclined to treat these observations as obiter dicta but even though the same may be treated as obiter dicta, 1 am in perfect accord with these observations and am of opinion that the same are in conformity with the provisions of Order IV, Rule 1, of the Civil Procedure Code, as already indicated.

5. The result, therefore, in my opinion, would be that the present suit can be said to have been instituted only on the resigning and re declaration of the plaint on August 22, 1947, and that being so is was clearly out of time, having regard to both the provisions of Section 87 of the Bombay Port Trust Act and Article 36 of the Indian Limitation Act.

6. There, is one further point in this behalf of which defendants No. 3 could avail themselves and it is that as a matter of fact so far as defendants No. 3 were concerned, there was not even a semblance of authority to file the suit against them when it was filed on November 19, 1943. The suit was filed on November 19, 1943, inter alia against defendants No. 3 in pursuance of the special power-of-attorney dated September 24, 1943. That power-of-attorney after setting out that in or about the month of May 1943, the motor vessel Eastern Prince, sustained damage by fire at Bombay, stated that the plaintiffs claimed that the Port Trust of Bombay and the dock manager of the said trust were responsible for the said damage and the losses and expenses occasioned thereby. After this recital was made in the second paragraph of the power-of-attorney, the power-of-attorney proceeded to appoint Msssrs. Turner Morrison & Co., Ltd., to be the true and lawful, attorneys of the plaintiffs,

(1) To demand sue for and receive from the Port Trust of Bombay and/or from the docks manager of the said trust all damages losses costs charges and expenses thereof, etc....

(2) To commence and prosecute all such legal or other proceeding as the said attorneys should think fit in any way relating to the damages and losses sustained by the company arising out of the fire above referred to.

7. It was contended by Mr. Karani, counsel for defendants No. 8, that the recitals in this power-of-attorney controlled the general terms of the operative part of the instrument. The recitals sought to hold only the Bombay Port Trust and the docks manager of the Trust responsible for the damage and the losses. That was the reason for the grant of the power-of-attorney and the general terms in Clauses 1 and 2 above set out were to be controlled by this recital so that even though Clauses 1 and 2 and Clause 2 in particular might be capable of being read otherwise as enabling the constituted attorneys to take all legal and other proceedings as they thought fit against any party who may be held responsible there for, the recital which stated that the company claimed that the Port Trust of Bombay and the docks manager of the Trust were responsible for the damage or losses should govern these general terms with the result that the Court should hold that the general terms of the operative part of the instrument, viz., Clauses 1 and 2 and Clause 2 in particular should be read as having regard to the parties who were sought to be held responsible, viz. the Port Trust of Bombay and the docks manager of the Trust only and nobody else. Reliance was placed by Mr. Karani in support of this proposition of his on the commentary under Section 188 of the Indian Contract Act by Pollock and Mulla at p. 538, where it is stated :-

One of the most important rules for the construction of a power of attorney is that regard must be had the recitals which as showing the scope and the object of the power will control all general terms in the operative part of the instrument,....

Another rule is that where the special powers are followed by general words, the general words are to be construed as limited to what is necessary for the proper exercise of the special powers arid as enlarging these powers only when necessary for the carrying out of the purposes for which the authority is given.

The latter portion of this commentary was relied upon by Mr. Karani for the purpose of showing that even though Clause 2 is couched in general terms, it has got to be read along with Clause 1, which talks only of the power to demand, sue and receive from the Port Trust of Bombay and from the docks manager of the Trust all damages losses costs charges and expenses sustained or incurred by the plaintiffs as the owners of the M.V. Eastern Prince etc. Mr. Beynon counsel for the plaintiffs sought to argue that the general terms of Clause 2 were sufficient to include the claim which was formally made by the plaintiffs against defendants No. 3 when the suit came to be filed and that therefore what was done in the matter of the institution of the suit against defendants No. 3 on November 19, 1943, was well within the terms of the power-of-attorney. In my opinion, this contention of Mr. Beynon is not tenable. The recitals in this power-of-attorney clearly say that the plaintiffs were claiming that the Port Trust of Bombay and the dock manager of the Trust were the parties responsible for the damages, and losses and expenses occasioned by the fire. In fact under Clause 1 of the power-of-attorney they authorised the constituted attorneys Messrs. Turner Morrison & Co., Ltd., to demand sue and receive from the Port Trust of Bombay and or from the dock manager of the said trust all damages losses costs charges and expenses sustained or incurred by the company as the owners of the motor vessel 'Eastern Prince' etc., and to do all things needful in connection therewith. When they came to Clause 2 of the power-of-attorney they made the provision in general terms to commence and prosecute all such legal or other proceedings as the constituted attorneys thought fit in any way relating to the damage sustained by the plaintiffs arising out of the fire above referred to. This was a provision the terms of which really followed the special powers which were given in Clause 1 to the constituted attorneys and these words could only be construed as limited to what was necessary for the proper exercise of the special powers and enlarging those powers only when necessary for the carrying out of the purpose for which the authority was given. Reading the power-of-attorney as a whole it is quite clear that the purpose for which the authority was given was to recover the plaintiffs' claim against the Port Trust of Bombay and the dock manager of the Trust in respect of the damage, and losses occasioned by the fire and it was only when it was necessary for the carrying out of those purposes, that the special powers which were given in Clause 1 of the power-of-attorney were to be enlarged by the provision contained in Clause 2 thereof. There is therefore no warrant for the contention that the power-of-attorney also included the claim if any made by the plaintiffs against defendants No. 3 when the suit came to be instituted on November 19, 1943. I, therefore, accept the contention of Mr. Karani that this power-of-attorney as it was executed on September 24, 1943, did not authorise Messrs. Turner Morrision and Co., Ltd., to file the suit against defendants No. 3 as they did on November 19, 1943. If that was so, the suit against defendants No. 3 came to be instituted only on August 22, 1947, when the general power-of-attorney was executed by the plaintiffs in favour of the constituted attorneys. The plaint was resigned and re declared and it was then and then only that defendants No. 3 could be said to have been impleaded as co-defendants in this suit. The suit was filed therefore against defendants No. 3 on August 22, 1947, and apart from the general aspect of the question of limitation, which I have above dealt with this is also a point which is available to defendants No. 3 in support of their contention that the, suit as against them is barred by the law of limitation.

8. Under the circumstances aforesaid I have come to the conclusion that the suit against all the defendants is barred by the law of limitation and that the same is therefore liable to be dismissed with costs. [The rest of the judgment is not material to this report]. There will be one set of costs as between defendants Nos. 1 and 2 and another set of costs for the third defendants.


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