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All India Reporter Ltd. and anr. Vs. Ramchandra Dhondo Datar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 13 of 1954
Judge
Reported inAIR1961Bom292; (1960)62BOMLR251; ILR1961Bom257
ActsCode of Civil Procedure (CPC), 1908 - Sections 99 - Order 3, Rules 1 and 2 - Order 4, Rules 1 and 2 - Order 6, Rules 2, 14, 15 and 17 - Order 7, Rules 1 and 11 - Order 29, Rule 1; Companies Act, 1913 - Sections 154
AppellantAll India Reporter Ltd. and anr.
RespondentRamchandra Dhondo Datar
Appellant AdvocateM.R. Bobde and ;G.B. Shidhaye, Advs.
Respondent AdvocateB.H. Chati, Adv.
Excerpt:
civil procedure code (act v of 1908), order vi, rules 14, 15; order vii, rules 1 & 11; order iv, rules 1 & 2 - plaint not properly signed or verified whether makes suit ineffective, inoperative, or void--whether re-signing and. re-verification of plaint relates back to original date of suit--amendment of properly instituted plaint whether relates back to original plaint--whether words 'duly authorized' in order vi, rule 14 restricted to mean authorized by proper written authority or by power of attorney--plaint whether can be presented only by plaintiff personally or by person duly authorized by him--practice (civil)--pleadings--courts receiving pleadings to require that requirements of order vi, rules 14 & 15 and order vii, rule 1 should be complied with.;if a plaint is not,.....kotwal, j.raju, j.1. i would like to add the following observe ons on the question of limitation.2. in order to appreciate the points of law involved, it is necessary to state a few relevant f acts :3. in the plaint two plaintiffs were named, nambly, (1) all india reporter, limited, bombay and (2) shri v. v. chitaley. the plaint was signed by shri v. v. chitaley (plaintiff no. 2) and by one s. 0. ghushey who signed as agent to plaintiff no. 1. it was also verified by s- b. ghushey as agent to plaintiff no. 1. the plaint was filed on 18-2-1949, one day prior to the expiry of tbe period of limitation. the plaint was presented by shri shidhaye advocate, whose power was signed by v. v. chitaley and s. b. ghushey who signed as agent of plaintiff no. 1. along with the plaint, a power of.....
Judgment:

Kotwal, J.

Raju, J.

1. I would like to add the following observe ons on the question of limitation.

2. In order to appreciate the points of law involved, it is necessary to state a few relevant f acts :

3. In the plaint two plaintiffs were named, nambly, (1) All India Reporter, Limited, Bombay and (2) Shri V. V. Chitaley. The plaint was signed by Shri V. V. Chitaley (Plaintiff No. 2) and by one S. 0. Ghushey who signed as agent to plaintiff No. 1. It was also verified by S- B. Ghushey as agent to plaintiff No. 1. The plaint was filed on 18-2-1949, one day prior to the expiry of tbe period of limitation. The plaint was presented by Shri Shidhaye Advocate, whose power was signed by V. V. Chitaley and S. B. Ghushey who signed as agent of plaintiff No. 1. Along with the plaint, a power of attorney by AIR Limited, in favourof S. B. Ghushey, dated 1-5-46, was filed. After the date of this power of attorney and before the date of the suit, AIR Limited was converted intoa public Limited Company in 1948.

4. Objections having been taken by the defendant on the ground that the plaint was notproperly signed or verified, the trial Court held on 9-4-51 that the plaint was not properly signed and verified on behalf of plaintiff No. 1 and ordered that the plaint should be properly signed and verified by someone au theorised on behalf of plaintiff No. 1, either under Order 6, Rule 14, or under Order 29 Rule 1, C. P. C. In compliance with this order dated 9-4-51, S. B. Ghushey again signed the plaint and again verified it on 24-4-51 after filing a fresh power of attorney from plaintiff No. 1 dated 18-4-1951.

5. Against the order of the trial Court dated 9-4-51, holding that the plaint was not properly signed and verified on behalf of plaintiff No. 1, a revision application filed in the High Court (Civil Revision No. 395 of 1951) was decided on 18-1-1952. The High Court held that no question of jurisdiction was involved in the revision application as the trial Court undoubtedly had power to ask the party to rectify a defect in regard to signing and verification of the plaint. The High Court observed that the trial Court had not framed an issue on the point of limitation, and therefore the High Court did not decide the question of limitation in revision, but left it open to the defendant to plead the bar of Limitation.

6. Accordingly the defendant pleaded the bar of limitation before the trial Court and this contention was upheld by the trial Court on the following grounds :

1. The signature of Ghushey on the plaintand its verification by him in his capacity as agent of the AIR Limited (Plaintiff No. 1) under a power given by it when it was a private Limited Company do not enure for the benefit of the AIR Limited on the date of the institution of the suit when it had become a public Limited Company.

2. The plaint can be signed and verified by a person Orally au theorised by a plaintiff to do so, but in the instant case plaintiff No. 1 is a company. Under Articles. 153(7) and 156 of the Articles of Association of the Company only the Managing Director of the Plaintiff Company had power to institute suits for plaintiff No. 1, and it is nowhere shown that he had power to authorise somebody else to sign pleadings for plaintiff No. 1. Under Art. 153 (19) of the Articles of Association of plaintiff No. 1, read with Art. 156, the Directors could confer a power of attorney under the seal of the Company upon any person to be attorney of the Company for the purposes of the powers conferred on the Directors under Art. 152 which include a power to institute and conduct suits under Art. 153(7). The power of attorney of Ghushey dated 18-4-51 does not bear the seal of the Company. An oral authorization would also not be valid in view of the Articles of Association.

3. Even if the signature of Ghushey on the plaint for plaintiff No. 1 was valid, his verification is neither proper nor authorized.

4. On 18-249, the date of the plaint, itcannot be said that Ghushey was acquainted with the facts of the case as required by Order 6, R. 15, C. P. C. So verification of the plaint by Ghushey was not proper.

5. The plaint was also not properly presented On behalf of plaintiff No. 1 who alone had interest in the suit, the other plaintiff, namely, plaintiff No. 2, being only a formal plaintiff.

6. It was only on 24-2-51 that the plaint was properly signed and verified by Ghushey under the power of attorney from plaintiff No. 1 after its conversion into a public Limited Company. As the plaint must be deemed to have been properly presented on 24-4-1951 and as the cause of action accrued on 19-2-46, the suit was clearly barred by limitation as the period of limitation is admittedly three years,

7. The question of limitation, therefore, involves the following points :

(1) Who has to sign the plaint, who has to verify it, and who has to present it?

(2) If there are any de facts or irregularities in regard to signing of the plaint or its verification, can these de facts be removed on a subsequent date after the hearing of the suit has commenced? Can they be removed in appeal? If so, does the removal of the defect or irregularity relate back to the original date of presentation of the plaint? In other words, is the suit deemed to be instituted on the original date or on the date on which the de facts or irregularities in regard to the signing etc. of the plaint are removed?

(3) In regard to a private Limited Company which is converted into a public Limited Company before the date of the suit, can a person holding power of attorney of the former sign a plaint and verify it on behalf of the latter?

(4) Would the decision of these questions depend on whether the plaintiff is a sole plaintiff or is one of several plaintiffs? Should the rules regarding signature, verification and presentation of the plaint be complied with by all plaintiffs?

8. I shall discuss the questions of law at issue first with reference to the provisions of the C. P. C. and then with reference to decided cases. Our attention has not been drawn to any case of the Supreme Court on these points.

9. The relevant provisions of the C. P. C, must be borne in mind. They are : Order 4, R. 1; Order 6, R. 14; Order 6, R. 15; Order 3, R. 1; Order 3, R. 2 and Order 7, R. 11.

O- 4 R. 1 : '(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.''

'(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.'

O. 6 R. 14 : 'Every pleading shall be signed by the party and his pleader (if any); Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly au theorised by him to sign the same or to sue or defend on his behalf.'

O. 6 R. 15: '(1) Save as otherwise Provided by any law for the time being in force, every pleading shall be verified at the foot by theparty or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.'

(2) .....(3) .....

Order 3, R. 1:-- 'Any appearance, application or act in or to any Court, required or au theorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or acting, as the case may be, on his behalf :

Provided that any such appearance shall, if the Court so directs, be made by the party in person.'

Order 3 R. 2 :-- 'The recognized agents of parties by whom such appearances, applications and acts may be made Or done are-

(a) persons holding powers-of-attomey, authorizing them to make and do such appearances, applications and acts on behalf of such parties;

(b) persons carrying on trade Or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly au theorised to make and do such appearances, applications and acts.'

Order 7 Rule 11 :-- 'The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued,..;

(c) where the ....plaint is written upon paper insufficiently stamped.....;

(d) where the suit appears from the statement in the plaint to be barred by any law.'

10. Order 6, rule 14, requires that every pleading i.e. a plaint or a written statement, shall be signed by the party and his pleader, if any, provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading may be signed by any person duly au theorised by him Order 6 also contains provisions as to what a pleading should contain and should not contain; for instance, Order 6, rule 2 provides that pleadings should contain in a concise form a statement of all the material facts but should not state the evidence by which material facts are to be proved. Order 7, rule 1 enumerates some essential particulars to be stated in a plaint.

11. Order 6, Rule 14, provides that in certain circumstances a pleading may be signed by any person duly au theorised by the plaintiff to sign the plaint Or to sue on his behalf. The expression 'signed by any person duly au theorised by him to sign the same' in rule 14 need not be restricted to written authorizations. If the authorization is proved, even an oral authorization should be taken as sufficient and there is noreason to read Order 6, rule 14 as requiring written authorization or a power of attorney. At this stage, the provisions of Order 3, rule 1 must also be considered. Order 3, rule 1, reads as follow:--

(After quoting the rule as given in para 9 the judgment proceeds).

Order 3, rule 2, describes who the recognized agents referred to in Order 3, rule 1, are. Order3, rule 2, has been- amended by the Bombay High Court. But this amendment did net govern the plaint in the instant case when it was filed.

12. Order 3, rule 1, applies only to appeal-ances, applications, or acts in or to any Court, required or au theorised by law to be nude or done by any party in such Court. The signature on a plaint is not an appearance, or application, or act in or to any Court. The presentation of a plaint may be an act to or in a Court, but the mere act of signing a plaint would not be an act in or to a Couri. A plaint can bs signed outside the Court. It would not therefore come with-in the scope of Order 3, Rule 1 and Order 3, rule 2. The presentation of a plaint in a Court would also not be governed by Order 3, rule 1, as the presentation of a plaint is not required or au theorised by law to be made or done by a party to such Court. Order 4, rule 1, which refers to presentation of a plaint, docs not require the presentation to he made or done by a party. Order4. rule 1, merely provides that every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf. Order 4, rule 1, does not specify by whom a plaint is to be presented. A plaint can therefore be presented by any person. It can perhaps even be sons by registered Post, addressed to the Court or to the officer appointed by the Court to receive plaints, but this point need not be further considered as it does not arise in the present case.

13. The question is whether the provisions contained in Order 6 relating to signing, verification and presentation of the plaint relate merely to procedure or whether a plaint which does not strictly comply with the requirements of Order 0 would cease to be a valid plaint and would be a nullity because of such de facts or irregularities. It is true that when a plaint is presented to the Court or to such officer as the Court appoints, it is open to the Court or to the officer to point out the de facts or irregularities to the person presenting the suit and to require him to rectify the de facts or irregularities. But can it be said that the de facts or irregularities would make tho presentation of the suit itself invalid although the plaint is admitted and particulars of the plaint are entered in a register of suits as provided by Order 4, rule 2? In this connection it is necessary to note that Order 7, rule 11, which refers to the rejection of a plaint, enumerates only four cases in which a plaint has to be rejected, hut it does not enumerate any of the d facts or irregularities referred to in Order 6, Rules 14, Order 6, Rule 15, or Order 6, Rule 2. It is clear from the prevision contained in Order 6 that these rules relate only to procedure, and the better view would be to regard them as mere matters of procedure and to hold that if a plaint is not properly signed orverified but is admitted and entered in the register of suits it docs not cease to he a plaint and the suit cannot be said not to have been instituted merely because of the existence of some de facts or irregularities in the matter of signing and verification of the plaint.

14. I shall next turn to the authority of decided casss. That de facts in regard to signature on a plaint are technical irregularities relating to matters of procedure which can be cured at anytime irrespective of the question of limitation was the view taken by a Division Bench of the Bombay High Court in Ganpati Nana v. Jiwanabai ILR 47 Bom 227 : AIR 1923 Bom 44, by a Single Judge of the Bombay High Court in Bundi Pordand Cement Co.. Ltd. v. Abdul Hussein ILR 1937 Bom 85 : AIR 936 Bora 418, and by another Single Judge in Nanibhai v. Popatlal 34 Bom LR 628 : AIR 1932 Bom 367. A contrary view that it cannot be said that a suit has been instituted if it did not comply with Order 6, rule 14, or Order 6, rule 15, Civil Procedure Code, was held by a Single Judge in Prince Line, Ltd. v. Trustees of the Port of Bombay : AIR1950Bom130 , relying on the Division. Bench judgment in Uttamram Vithaldas v. Thakur Das Parshottamdas ILR 46 Bom 150 : AIR 1922 Bom 113. But the observations in ILR 46 Bom 150 : AIR 1922 Bom 113 were held in 34 Bom LR 628 : AIR 1932 Bom 367 to be obiter dicta as the question of limitation was not considered in that case. The real question decided by the High Court in ILR 46 Bom 150 : AIR 1922 Born 113 was whether or not the plaintiff should be allowed subsequently an opportunity to rectify de facts in the matter of signature on the plaint. The High Court set aside the dismissal of a suit by the trial Court which had dismissed the suit on the ground that the plaint had not been properly signed. The High Court set aside the dismissal of the suit and allowed the plaintiff an opportunity to sign the plaint. Without deciding the question of limitation the High Court made some observations as to the date on which the suit must be deemed to have been instituted. As the question of limitation was not decided, it was not necessary to decide on what date the suit had been instituted.

15. The judgment of the Division Bench ot the Bombay High Court in ILR 47 Bom 227 : AIR 1923 Bom 44 and the judgments of Single Judges in ILR 1937 Born 85 : AIR 1936 Bom 418,. Ephrayim v. Turner, Morrison and Co. 32 Bom LR 1178 : AIR 1930 Bom 511 and 34 Bom LR 628 : AIR 1932 Bom 367 are in favour of the view that de facts in regard to the signature, or verification or presentation of the plaint are mere irregularities of procedure. In ILR 1937 Bom 85: AIR 1936 Bom 418 it was held that the rule in Order 29, rule 1, Civil Procedure Code, regarding signature on the plaint is only a matter of procedure and that 'If the signature on the plaint or the verification of the pleading is defective, the defect can be cured at any subsequent lime.' It was also held that the provisions contained in Order 29, rule 1, Civil Procedure Code, are clearly permissive and not imperative. Order 29, rule 1 is merely a rule of procedure and does not exclude the operation of Order 6, rule 14 andrule 15. In ILR 47 Bom 227 : AIR 1923 Bom 44, where a power of attorney was defective, it was held that the decree should not be disturbed in appeal in spite of the defect. If such de facts go to the root of the plaint and vitiate the plaint, there could be no suit and no decree. As the High Court refused to disturb the decree in spite of defec's in the plaint it impliedly held that de facts in the plaint do not vitiate the plaint or the suit. Section 99 of the Civil Procedure Code was applied apparently on the view that there was merely a defect or irregularity in the proceedings in the suit after it had been properly instituted. That the signing and verification of pleadings is not a matter of substance but of procedure only, that notwithstanding irregularities in the plaint in regard to signing or verification or presentation, the plaint must be deemed to have been instituted On the date of its admission by the Court, and that such de facts can be cured in appeal or even after the period of limitation was the view held in Bisheshar Nath v. Emperor ILR 40 All 147 : AIR 1918 AH 275, Netrarn v. Bhagwan AIR 1941 Nag 159 Wali Muhammad Khan v. Ishak AH Khan ILR 54 AH 57 : AIR 1931 All 507, Shib Deo Misra v. Rarnprasad : AIR1925All79 , Subash Pillai v. Sankarapandiam Pillai ATR 1948 Mad 369, Ramgopal Chose v. Dhirendra Nath Sen ILR 54 Cal 380 : AIR 1927 Cal 378, Sarju Prasad v. Badri Prosad ILR 1939 Nag 515 : AIR 1939 Nag 242.

16. Referring to the observations of the Privy Council in Mohini Mohan Das v. Bungsi Buddan Saha Das ILR 17 Cal 580, it was remarked in 34 Bom LR 628 : AIR 1932 Bom 367 that their Lordships of the Privy Council were of the opinion that the signing of the plaint was not essential part of it. In Basdeo v. John Smidt ILR 22 All 55 it was held that omission to sign a plaint in accordance with Order 6, rule 14, Civil Procedure Code, wag a mere irregularity. The rule in Order 6, rule 14, regarding signature on a plaint is both desirable and salutary. The object of requiring signature on a plaint is to prevent fictitious suits. As observed in Great Australian Gold Mining Co. v. Martin (1877) 5 Ch. D 10, which was Overruled on another point in Fowler v. Barstow (1881) 20 Ch. D. 240, 'signature otcounsel to the bill was to that extent a voucher that the case was not a mere fiction.' Signatureon the plaint is also essential to fix the responsibility of the plaintiff and to afford guarantee of his good faith. Vide ILR 22 All 55.

17. It is open to the Court or to the officer of the Court authorised to receive plaints to refuse to admit a plaint if it is not properly signed of properly verified. It is also open to the Court at any subsequent stage, on its own initiative or upon objection being taken by the defendant, to require the plaintiff io sign and verify the plaint, and if the plaintiff refuses to do so, the Court can refuse to take any further steps. But that does not mean that if the Court requires the plaintiff to sign the plaint subsequently, the original plaint ceases to be a plaint. In ILR 22 All 55 it was held that the mere fact that the plaint is not signed by the plaintiff orby a person duly au theorised by him will not make the plaint void and that a plaint does not cease fo he a plaint if it is unsigned or if the signature is defective, A similar view was taken in : AIR1919All275 , Govindas v. Muthiah Chetty : AIR1925All79 , Ranjit Ram v. Katesar Nath ILR 18 All 396 and Educational Bonk Depot v. Rabindra Nath Tagore : AIR1933All474 . The last three cases are cases of irregularity in regard to verification of the plaint. See also Qanavat Hussain v. Mt. Sajidunnisa Bibi : AIR1949All499 , a case where a person holding a power of attorney signed and verilisd the plaint not in his own name but in the name of the plaintiff. That the de facts in regard to signature on the plaint can be cured subsequently and even in appeal was the view taken in AIR 1945 Mad 369, ILR 40 All 147 : AIR 1918 All 275 and AIR 1941 Nag 159. In AIR 1948 Mad 369 plaintiff had not signed the plaint. It was held that the omission could be cured and should be corrected in the interests of justice, that the omission to sign or verify a plaint is net such a defect as would affect the merits of a case or the jurisdiction of the Court, that if the defect is not discovered until the case conies up for hearing before the appellate Court, the appellate Court may order an amendment to be made in that Court and that the appellate Court ought not to dismiss the suit or interfere with the decree ot the lower Court merely because plaint had not been signed. Reliance was placed on the Privy Council decision in ILR 17 Cal 580 and on ILR 22 All 55. The suit must be deemed to have been duly instituted in spite of de facts in regard to the signature or verification or presentation of the plaint. : AIR1925All79 .

18. Their Lordships of the Privy Council observed in ILR 17 Cal 580 that there was no rule that a person named as co-plaintiff in the plaint was not to be treated as a plaintiff unless he signed and verified the plaint. Order 6, rule 14, which requires that every plaint should be signed by the plaintiff and his pleader, if any, has, in view of the Privy Council decision to bo interpreted so as to mean that a plaint should be signed by at least one plaintiff. See also Bibi Asghari v. Muhammad Kasim, : AIR1951Pat323 and ILR 54 All 57 : AIR 1931 All 507.

19. The plaint in the instant case is signed by plaintiff No. 2. The signature of plaintiff No. 2 on the plaint is therefore sufficient, plaintiff No. 2 also admittedly happens to be the Managing Director of the plaintiff NO. 1 Company. The Managing Director of the Company admittedly has auhority to file suits on behalf of the Company.

20. In this view of the matter it is not necessary to deckle the question whether Ghushey was au theorised by proper power of attorney to sign the plaint on behalf of the Company (plaintiff-No. 1). Under Order 6, rule 14, Civil procedure Code, in certain circumstances a person duly au-theorised by the plaintiff can sign the plaint. Under Order 29, Rule 1, in the case of Corporationsthe plaint can be signed by the Secretary or Director or other principal officer of the Corporation. In Calico Printers' Association, Ltd. v. Karim and Brothers ILR 55 Bom 151 : AIR 1930 Bom 566 after considering the Privy Council decision in Delhi and London Bank v. Oldham, 20 Ind App 139 (PC) it was held that either Order 29, rule 1, or Order 6, rule 14, can be applied to companies. See also ILR 1937 Bom 85 : AIR 1936 Bom 418. In the case of companies the plaint can be signed by either a Secretary or a Director or other principal Officer under order 29, rule 1, Civil Procedure Code, or any person duly au theorised by the Company under Order 6, rule 14. The words 'duly authorized' in Order 6, rule 14, need not be restricted to mean au theorised by proper written authority Or by power of attorney. There is authority for this view in Bengal Jute Mills v. Jewraj Heeralal : AIR1943Cal13 . In thesecases it was held that a plaintiff can orally authorize another person to sign a plaint for him. The Managing Director of the plaintiff Company in the instant case, who has authority to tile suits on behalf of the Company (vide Article 156 of theCompany's Articles of Association), can orally authorize another person to sign the plaint for him on behalf of the Company. Plaintiff No. 2, who is the Managing Director of the Company (Plain-'tiff No 1) has in his deposition deposed that Chushey signed the plaint under his instructions.'The evidence of Ghushey is to the same effect.

21. In the matter of signature on the plaint, as already observed. Order 3, rule 1, and Order 3 rule 2, have no application because signature on the plaint is not an act in or to a Court. It is therefore not necessary to decide whether the power of attorney dated 1-5-46 in favour of Ghushey was a valid one, whether it ceased to 'he operative after the AIR Limited became a public Limited Company in 1948, and whether the power of attorney dated 13-4-51 in favour of Ghushey was invalid as it did not bear the seal of the Company. In order to decide whether a person is duly au theorised by the plaintiff to sign a plaint for him under Order 6, rule 14, one has ordinarily to consider the provisions of the Civil Procedure Code alone and the general law. But in the case of a plaintiff who happens to be a Company, the company cannot orally authorize another person. A company can act only under its Articles of Association. If a power oi' attorney is to be executed for a company, it must satisfy the requirements of its Articles of Association. Article 153 (19) of the Articles of Association Of plaintiff No. 1 in the instant case requires that a power of attorney must be under the seal of the Company. In the instant case it is conceded by the learne,a counsel for the Appellant that there is no evidence on record to show'that either the power of attorney dated 1-5-1948 or the power of attorney dated 13-4-1951 bore the seal of the company. There was therefore no proper power of attorney on behalf of the 'Company in favour of Ghushey. However, asalready observed, it is not necessary that there should be a written authorization or a written power of attorney. The Managing Director of the Company has under Articles 153 (16) and 156 of the Articles of Association full powers of general management of the business of the company and he has also all the powers and authority vested in the Board of Directors except those specified in Article 157. The Managing Director of the Company can therefore orally authorize any person to act for him. As already observed, it is the evidence of both plaintiff No. 2 and of Ghushey that plaintiff No. 2 as Managing Director of the Company (plaintiff No. 1) had orally au theorised Ghushey to sign the plaint.

22. As regards the contention that when a private Limited Company is converted into a public Limited Company, the power of attorney executed by the former would not be valid after the conversion of the Company into a public Limited Company, this question need not be decided because both the powers of attorney of 1946 and 1951 do not bear the seal of the Company. However, there is no doubt that when under Section 154 of the Companies Act, a private Limited Company is converted into a public Limited Company the Company's identity is not changed, but only its nature. A private Limited Company can be converted into a public Limited Company by merely changing two or three Articles of its Articles of Association, the original Articles of Association continuing to be operative. A company can alter some of its Articles of Association. Such an alteration does not affect the identity of the company.

23. AS regards signature of the plaint, authorization by plaintiff No. 2 as Managing Director of the plaintiff No. 1 Company is quite sufficient, and it is the evidence of both plaintiff No. 2 and Ghushey that the former had au theorised the latter to sign the plaint. Moreover, as already observed, this is a case of plaint with, two plaintiffs, and admittedly, one of the plaintitis, plaintiff No. 2 has signed the plaint.

24. As regards presentation of the plaint, the trial Court held that the plaint had not been properly presented as it was presented by Mr. Shidhaye, Advocate, under a Vakalatnama which bore the signature of plaintiff No. 2 and the signature of Ghushey who described himself as agent of plaintiff No. 1 and who held a power of attorney from AIR Limited as it was before its conversion into a public Limited Company. I have already expressed the view that there is nothing in Order 4, Rule 1 as to who should present a plaint in the Court. There is authority in support of this view in ILR 54 All 57: AIR 1931 All 507, a Full Bench decision, where it is observed that there is no rule which in express terms requires that the plaintiff should file the plaint personally, nor was there any rule which expressly said that it should be filed by a person holding a power of attorney on behalf of the plaintiff or otherwise duly au theorised by the plaintiff. It was also observed that it is doub'ful whether Order 3 Rule 1, Civil Procedure Code would apply to such a case. In : AIR1949All499 , it was held that presentation of a plaint by aperson having no power of attorney is a mere irregularity. A plaint need not be presented by the plaintiff personally or by a person duly au theorised by him. In the case of a suit where there are two or more plaintiffs, presentation of the plaint by one of the plaintiffs, or, as in the instant case, by the pleader of one of the plaintiffs, would undoubtedly be a proper presentation.

25. As regards the verification of the plaint, in the instant case it was verified by Ghushey as agent of the AIR Limited (plaintiff No. 1). It was not verified by plaintiff No. 2. Order 6, Rule 15 of the Civil Procedure Code requires that the plaint should be verified by the plaintiff or one of the plaintiffs or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Order 6, rule 15, does not refer to persons au theorised by the plaintiff or any of the plaintiffs. If the plaint is not verified by a plaintiff or by any one of the plaintiffs, it can be verified only by a person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is true that there are several authorities in favour of the view that Omission to verify a pleading is a mere irregularity and that a pleading which is not verified as required by Order 6, rule 15, may be verified at any later stage of the suit, even after the expiry of the period of limitation. See : AIR1925All79 : AIR1927Cal376 and : AIR1933All474 .

26. In the instant case the objections raised by the defendant to the plaint merely related to the validity of the power of attorney in favour of Ghushey and consequent irregularities in regard to the signing and verification of the plaint. The objection that the plaint was not verified by a person acquainted with the facts of the case has not been urged by the learned counsel for the defendant respondent before us. But this point was considered by the lower Court which held that it cannot be said that on 18-2-1949, the date of presentation of the plaint, Ghushey was acquainted with the facts of the case. The lower Court therefore held that the verification was not proper. But in the next paragraph of the judgment (paragraph 37) the lower Court took the view that it was only on 24-1-51 that the plaint was properly signed and verified by Ghushey under a power of attorney from plaintiff No. 1, as it came to be after the conversion f the company into a public Limited Company. But, as already observed, in order to comply with the rules regarding verification contained in Order 6, rule 15, it is not sufficient that the plaint isverified by someone au theorised by the plaintiff. It must be verified by the plaintiff, or one of the plaintiffs, or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, See also : AIR1943Cal13 . Ghushey verified the plaint on 18-2-49 and also on 24-4-51. In his deposition on 8-8-53 he swore that he had no personal knowledge about the facts stated in the plaint or the nature of the dispute between the parties. The plaint istherefore not verified by any of the plaintiffs orby a person acquainted with the facts of the case. I would like to impress upon Courts receiving pleadings and officers au theorised to receive pleadings the necessity and importance of seeing that the requirements of Order 6, rules 14 and 15 and or Order 7, Rule 1, are properly complied with. The defect or the absence of a proper verification of the plaint is however one of procedure and is a mere irregularity. The defendant did not object to it. In ILR 18 All 396, a case decided by three Judges, it was held that on a mere question of defect of verification it is not necessary for an appellate Court to pay any attention or take any steps to rectify a defect in the verification of a plaint.

27. If de facts in regard to the signature, verification or presentation of the plaint are cured on a day subsequent to the date of filing the suit, the date of institution of the plaint is not changed to the subsequent date. 34 BLR 628 : AIR 1932 Bom 367; : AIR1927Cal376 ; : AIR1925All79 . When a plaint is re-signed or re-verified, it may or may not amount to an amendment of the plaint. In : AIR1925All79 it was held that such a re-verification or re-signing would not amount to an amendment of the plaint. Even when a plaint is amended, the amendment relates back to the date of the suit except in some cases, e.g. where the amendment adds new parties or properties. See 34 Bom LR 628 : AIR 1932 Bom 367, Mohini Kumar v. Niaz Mohammad : AIR1944Cal4 , Nellakumara v. Pappayi Ammal AIR 1945 Mad 219, Weldon v. Neal, (1887) 19 QBD 394 and Janardan Kishore Lal v. Sib Prasad Ram ILR 43 Cal 95 : AIR 1917 Cal 841.

28. Holding that it was only on 24-4-51 that the plaint was properly signed and verified, the trial Court held that the date of the filing of the suit must be taken to be 24-4-51. As already pointed out, the general consensus of authority of the Bombay High Court and other High Courts is in favour of the view that de facts and irregularities in the matter of signing, verifying or presenting plaints are mere irregularities of procedure which do not make the suit ineffective, inoperative, or void. The existence of such de facts does not mean that the suit had not been filed. Even when the plaint is amended after it is properly instituted, the amendment relates back to the date of the original plaint unless the amendment adds new parties or new properties. That is why leave to amend a plaint has ordinarily to be refused, except in very exceptional cases, if the effect of the proposed amendment is to take away from the defendant the legal right which accrued to him by lapse of time. See Charan Das v. Amir Khan AIR 1921 PC 50 : 47 Ind App 255. If the amendment is allowed, it relates back to the date of the original plaint. If is not a case of the amendment taking effect from the date ot amendment and of condoning the bar of limitation. If the amendment of the plaint is allowed, the question of limitation cannot be reserved. It is not a case of allowing the amendment ofthe plaint and reserving the question whether or not to condone the delay and the bar of limitation. If the Court feels that the bar of limitation should not be avoided, it must refuse the amendment of the plaint. After allowing the amendment the Court cannot say that the amendment takes effect from the date cf the amandment. Similarly, when a defective plaint is rectified and re-signed and re-verified on a subsequent date, the re-signing or the re-veri.kation of the plaint relates back to the original date. See ILR 1937 Bom 85 : AIR 1938 Bom 418, : AIR1927Cal376 ; : AIR1925All79 , and ILR 40 All 147 : AIR 1918 All 275.

29. Even in the : AIR1950Bom130 it was held that if a plaint is not properly signed or verified or presented the Court has always got the discretion to allow the plaintiff to remedy the defect at a later stage even though the period of limitation may have already expired and the defendant has vested in him by that time a right to plead the bar of limitation, and that if that discretion is exercised by the Court, the curing of the defect or the amendment of the plaint would he effective as from the date of the institution of the suit itself, and it would not be open to the defendant to plead the bar of limitation.

30. The date of institution of the suit or the date from which an amendment takes effect does not depend on the discretion of the Court. Of course, the Court has a discretion to allow or not to allow an amendment of the pleading or the re-signing or re-verification of the plaint. Once the discretion is exercised, the amendment of the plaint or the fresh signature cr verification of the plaint relates back to the original date of the suit. In other words, the original date of institution of the suit is not affected by the amendments of the plaint or the fresh signature or verification of the plaint. It is also open to a Court to sav that it provisionally allows an amendment of the plaint and that the question whether or not to allow the amendment of the plaint or its resigning or re-verification would be finally decided later. In such a case it is only the final order of the Court that has to be considered and not the provisional order. But once the amendment of the plaint is allowed, the question of limitation cannot be reserved.

31. In the instant case, the plaint is signed by one of the plaintiffs, which is quite sufficient in view of the decision of their Lordships ot the Privy Council in ILR 17 Cal 580. In regard to presentation Of the plaint, as already observed, the plaint need not be presented by plaintiff or sny person au theorised by him. Presentation of the plaint by the pleader of one of the plaintiffs is quite proper. As regards verification ot the plaint, unfortunatrly, even today the plaint is not properly verified by one of the plaintiffs or by any person acquainted with the facts of the case. But this however is a matter of mere irregularity in regard to procedure and does r.ob make the suit filed on 18-2-49 detective. The lower Court was therefore wrong in holding that the suit must be deemed to have been institutedonly on 24-4-51 and that it was therefore barred by limitation. I therefore agree with my learned Brother's view that the suit is within time notwithstanding the irregularities in the plaint.

32. Appeal dismissed.


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