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The Calico Printers' Association Ltd. Vs. A.A. Karim and Bros. (05.08.1930 - BOMHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 52 of 1929 and Suit No. 700 of 1929
Judge
Reported inAIR1930Bom566; (1930)32BOMLR1305
AppellantThe Calico Printers' Association Ltd.
RespondentA.A. Karim and Bros.
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1908), order vi, rule 14, order xxix, rule 1 - plaint-signature of plaintiff-joint stock company-power of attorney-signature of plaint by attorney.;under order vi, rule 14, of the civil procedure code, 1908, a pleading must be signed by a party, which includes a corporation, it is open to either of them to authorize someone to sign the pleading.;where a company does not so authorize a person, it can sign the pleading through the secretary, director or other principal officer, under order xxix, rule 1, of the code. - - 3. now, the question is whether that plaint was well signed or not, and i think that question turns on the meaning to be attributed to order xxix, rule 1, and order vi, rule 14. order xxix, rule 1, provides :in suits by or against a..........in the bombay presidency concerning the infringement of any designs registered in india and to sign pleadings and to execute and do all such other deeds, instruments, acts and things whatsoever which might be necessary or proper in relation to the matters aforesaid, the power, although by no means a general power, is a power authorising him expressly to sign the plaint in an action such as this.3. now, the question is whether that plaint was well signed or not, and i think that question turns on the meaning to be attributed to order xxix, rule 1, and order vi, rule 14. order xxix, rule 1, provides :-in suits by or against a corporation, guy pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the.....
Judgment:

J.W.F. Beaumont, C.J.

1. This is an appeal from an order, made by Mr. Justice Blackwell in chambers, in which ho directed the plaintiffs' plaint to be taken off the file. The point raises a rather troublesome question of practice on which Mr. Justice K. Kemp in chambers came to a conclusion different from that at which Mr. Justice Blackwell arrived in the present case and although Mr. Justice Blackwell in a later case followed the decision of Mr. Justice K. Kemp, he still thought his original point of view was right.

2. Now, the point is this. The plaintiffs are a company registered in England and also registered under Section 277 of the Indian Companies Act, and they commenced this action to obtain an injunction to restrain the defendants from importing and/or selling certain articles under a trade-mark similar to that of the plaintiffs, and the plaint was signed by Mr. C. M. Eastley, described as a partner in the firm of Messrs, Little & Co., attorneys for and duly constituted attorneys of the plaintiffs. There is a power of attorney, which is on the record, given by the plaintiffs to Mr. Eastley, under which he was empowered to commence an action in the Bombay Presidency concerning the infringement of any designs registered in India and to sign pleadings and to execute and do all such other deeds, instruments, acts and things whatsoever which might be necessary or proper in relation to the matters aforesaid, The power, although by no means a general power, is a power authorising him expressly to sign the plaint in an action such as this.

3. Now, the question is whether that plaint was well signed or not, and I think that question turns on the meaning to be attributed to Order XXIX, Rule 1, and Order VI, Rule 14. Order XXIX, Rule 1, provides :-

In suits by or against a corporation, Guy pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.

4. Now, in terms, that is a permissive order and directs that suits by or against a corporation may be signed and verified on behalf of the corporation by the person therein mentioned, i.e., secretary, director or other principal officer.

5. Well, then you get Order VI, Rule 14, which provides:-

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 authorized by him to sign the same or to sue or defend on his behalf.

6. It has been argued in the first place that Order VI, Rule 14, does not apply to a company and the decision of the Privy Council in Delhi and London Bank v. Oldham is cited as an authority on that behalf. The passage particularly relied on is at p. 142, where their Lordships say that:-

Their Lordships are of opinion that sect. 51 of the Code [to ,which Rule 14 of Order VI now corresponds] which regulates proceedings taken by or on behalf of ordinary plaintiffs, does not apply to such a case as the present, but that this case must be decided with reference only to sect. 435, which expressly applies to corporations,...

Section 485 is now replaced by Order XXIX, Rule 1. I think that, when the facts in that case are looked at, the Privy Council did not mean to say that Section 51 of the Code,-now Order VI, Rule 14-does not apply to companies. They only held that it did not apply in that particular case, because the power of attorney relied on in that case to bring the case within Section 51 did not contain any power to bring the action in question.

7. It seems to me that the plain terms of Rule 14 of Order VI do apply to a company which is a party to an action. The rule provides that every pleading shall be signed by the party and his pleader. Mr. Coltman suggests that inasmuch as the company cannot, of course, sign a document by itself, we must read into Order VI, Rule 14, the effect 'of Order XXIX, Rule 1, and say that the pleading shall be signed by the party or in the case of a company by one of the persons mentioned in Order XXIX, Rule 1, and then the proviso which follows to the effect that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, means, in the case of a company, where a person, authorised under Order XXIX, Rule 1, to sign is by reason of absence or for other good cause unable to sign, I think that construction would create too many difficulties, and it seems to me that the proper construction to put upon the two rules taken together is this, that under Order VI, Rule 14, the pleading must be signed by the party, but where the party is a company and therefore unable to sign, it necessarily follows, having regard to the words ' or for other good cause,' that the last part of the section always applies in the case of a company, and that the company therefore can always authorise some person to sign on behalf of the company. If the company does not choose to do that, it can act under Order XXIX, Rule 1, i.e., it can rely on that order as in fact constituting an agent to sign without the necessity of giving any express authority. In that way Order XXIX is read as merely permissive and not mandatory, In point of form it is clearly permissive and not mandatory.

8. I think, therefore, that the order of Mr, Justice Blackwell was wrong technically and the plaint was correct. But as this point does not seem to have been taken in the Court below, I think the appeal should be allowed without costs either here or in the Court below.


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