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Nanjibhai Jethabhai Vs. Popatlal Shriraj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 338 of 1929
Judge
Reported in(1932)34BOMLR628
AppellantNanjibhai Jethabhai
RespondentPopatlal Shriraj
Excerpt:
civil procedure code (act v of 1908), order iii, rule 2(a) amended by bombay high court-order vi, rule 17-plaint-signature by munim- signature by plaintiff subsequently made when the claim was time-barred.;the munim of a plaintiff who temporarily resides put of the jurisdiction of the court is not entitled to sign the plaint in the absence of a general power-of attorney in his favour, under order iii, rule 2(a), as amended by the bombay high court,;a 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, mohini mohan das v. bungsi buddan saha das (1889) i.l.r. 17 cal. 580, p.c. ranjit ram v. katesar nath (1896) i.l.r. 18 all. 396. shib deo misra v. ram prasad(1924) i.l.r. 46 all. 637. basdeo..........by the plaintiff under a special power-of-attorney to do so on his behalf was not a properly signed plaint and that for the suit to be maintainable the plaintiff himself or somebody holding a general power-of-attorney on his behalf should have signed the plaint. similarly, in uttamram vithaldas v. thakordas parshottamdas i.l.r. (1921) bom. 150 : 23 bom. l.r. 911 the appeal court has held that a plaint cannot be considered to be duly presented and duly signed unless it is proved that the servant signing it was the recognised agent of the plaintiff.9. mr. taleyarkhan on behalf of the plaintiff applies that he may be allowed to amend the plaint by the plaintiff signing and verifying it. this application raises a question whether, if the plaint is allowed to be amended in this manner,.....
Judgment:

Mirza, J.

1. The first issue raised in this case is, 'whether the suit is maintainable by reason of the plaint not having been properly signed and filed'. The plaintiff in this case is one Nanjibhai Jethabhai, who is described in the plaint as 'a certified share-broker of the Native Share and Stock Brokers Association carrying on business at Dalai Street within the Fort of Bombay, temporarily residing at Chuda (Kathiawar)'. The plaint is signed by one Nanjibhai Jethabhai by the hand of Bhikhalal Nagardas Munim The verification clause of the plaint is signed by Bhikhalal Nagardas as follows:-

I Bhikalal Nagardas of Bombay Hindu inhabitant the Munim of theplaintiff abovenamed residing at Bhuleshwar outside the Fort of Bombay do solemnly declare that what is stated in the above plaint is true to my own knowledge.

2. It is conceded by Mr. Taleyarkhan on behalf of the plaintiff that Bhikhalal Nagardas held no general power-of-attorney from the plaintiff which would authorise him to sign the plaint on behalf of the plaintiff as required by Order III, Rule 2(a), of the Civil Procedure Code, as amended by the High Court Rules. It is conceded on behalf of the defendantsfor purposes of argument that at the date of the filing of the plaint the plaintiff was out of Bombay. It is also conceded for purposes of argument that theMunim Bhikhalal had authority from the plaintiff otherwise than by general power-of-attorney to sign and verify the plaint on his behalf. The plaint was presented to the Court by attorneys of this High Court who purported to act on behalf of the plaintiff, and was duly accepted and filed.

3. Order VI, Rule 14, 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 authorised by him to sign the same or to sue or defend on his behalf.' The question before the Court is, whether the munim who has signed the plaint can be said to have been 'duly authorised' by the plaintiff to sign it on his behalf. Order III of the 1st Schedule to the Civil Procedure Code deals with ' Recognised Agents and Pleaders.' Rule 1 under this Order provides-

Any appearance, application or act in or to any Court, required or authorized 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 on his behalf.

4. Order III, Rule 2, is as follows:-

The recognised agents of parties by whom such appearances, applications and acts may be made or done are :-

(a) persons holding powers-of-attorney, authorising 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 got 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 authorised to make and do such appearances, applications and acts.

5. Rule 2(b) is apparently not applicable to this case as the plaintiff was only temporarily absent from Bombay and isgenerally resident in Bombay, It is not the plaintiff's case that the munim was carrying on the plaintiff's business of a certified stock broker on his behalf while the plaintiff himself was not residing in Bombay. The case would be governed, in my opinion, by the provisions of Order III, Rule 2(a), as amended by the Bombay High Court Rules. The High Court rule requires that the power-of-attorney referred to in Order III, Rule 2 (a), should be a general power-of-attorney. It is clear that the plaint fails to conform to this provision of the Civil Procedure Code as amended.

6. Order VI, Rule 15, requires that the pleadings should be verified by the party or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It may be assumed in this case that evidence would be forthcoming to show that the munim is conversant with the facts of the case and is a competent person within the meaning of Order VI, Rule 15, to verify the plaint on behalf of the plaintiff.

7. Order IV, Rule 1, provides :-

(1) Every suit shall be instituted by presenting a plaint to theCourt 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.

8. Order VI, Rule 14, requires that every pleading should be signed by a party himself or by his duly authorised agent in that behalf. As this plaint does not comply with the provisions of Order VI, Rule 14, it is clear that there is no plaint before the Court which could be said to be properly presented as required by Order IV, Rule 1. If authority on this point were needed, I would refer to the case of Ephrayim v. Turner, Morrison & Co. : AIR1930Bom511 . where Mr. Justice Baker has held that a plaint which was signed by a person authorised by the plaintiff under a special power-of-attorney to do so on his behalf was not a properly signed plaint and that for the suit to be maintainable the plaintiff himself or somebody holding a general power-of-attorney on his behalf should have signed the plaint. Similarly, in Uttamram Vithaldas v. Thakordas Parshottamdas I.L.R. (1921) Bom. 150 : 23 Bom. L.R. 911 the appeal Court has held that a plaint cannot be considered to be duly presented and duly signed unless it is proved that the servant signing it was the recognised agent of the plaintiff.

9. Mr. Taleyarkhan on behalf of the plaintiff applies that he may be allowed to amend the plaint by the plaintiff signing and verifying it. This application raises a question whether, if the plaint is allowed to be amended in this manner, a right which may have accrued to the defendants by lapse of time in making the plaintiff's claim time-barred would not be prejudiced. In the alternative it is contended on behalf of the defendants that if the amendment is allowed, the claim of the plaintiff should be. considered as having been made at the date of the amendment and not at the date of the suit, so that the defendants may be enabled to plead that the plaintiff's claim is time-barred. Under Order VI, Rule 17, the Court is empowered at any stage of the proceedings to allow amendments. Where an amendment is allowed, generally speaking, the claim of the plaintiff would not be considered to have been brought at the date of the amendment, but the date of the filing of the suit will be the determining factor so far as the question of limitation is concerned. It is on this ground that, except in very special cases, Courts are averse to giving leave to amend pleadings where the effect of the proposed amendment would be to take away from the defendant a legal right such as the one conferred by the law of limitation. The leading English case on this point is Weldon v.Neal (1887) 19 Q.B.D. 394 followed in Janardan Kishore Lal v. Shib Pershad RamI.L.R. (1915) Cal. 95 and in Bal karan Upadhya v. Gaya Din Kalwar I.L.R. (1914)All. 370 and later in Kali Das Chaudhuri v. Sm. Drapaudi Sundari Dassi (1917) 22 C.W.N. 104 Rebati Raman Basak v. Harish ChandraBasak (1919) 24 C.W.N. 749 and Gyanendra Nath Chakravorti v. Paresh NathPal (1921) 26 C.W.N. 73

10. Reliance is placed on Uttamram Vithaldas v. Thakordas Par-shottamdas I.L.R. (1921) Bom. 150 : 23 Bom. L.R. 911 as laying down that in such cases for purposes of limitation it would be the date of the amendment and not the date of the filing of the suit which would govern the action. The judgment of the appeal Court shows that the plaint was presented on October 23, 1920, but was not properly signed then. The suit was dismissed on that ground on December 3,1920. In referring to the decision of the lower Court the judgment of the appeal Court states (p. 152):-

But we think that if the plaintiff had applied to be allowed to sign the plaint and present) it on that day [December 3, 1920], he should have bean allowed to do so. Then of course the question of limitation would arise. We have nothing to do at present with that. So that to that extent the Rule will be made absolute, the decree dismissing the suit will be set aside and the plaintiff will have an opportunity of having his suit considered as if it was filed on the 3rd December 1920.

11. From the judgment it appears the Court was of opinion that the date for purposes of limitation would be December 3, 1920,and not October 23, 1920. Having regard, however, to the definite statement in the judgment that the Court was not dealing at that stage with any question of limitation that might arise, the expression of opinion found later in the judgment must, with great respect, be regarded as obiter dicta.

12. It is clear from the plaint that the cause of action in the suit accrued to the plaintiff on March 8, 1926. The suit was filed on February 28, 1929. If the amendment asked for is now allowed, it would have the effect of defeating the defendant's right in respect of the bar of limitation, I have to consider, therefore, whether this can be regarded as a very special case in which I should grant the plaintiff's application. In Ephrayim v. Turner, Morrison &Co; : AIR1930Bom511 . there does not appear to have been any question of limitation involved in allowing the amendment. The learned Judge allowed the amendment but made the plaintiff pay costs of the suit up to the date of theamendment. In Uttamram Vithaldas v. Thakordas Parshottamdas the amendment involved a point of limitation. The appeal Court allowed the amendment and left the point of limitation to be considered by the Court of first instance after the amendment was made.

13. In Mohini Mohun Das v. Bungsi Buddan Saha Das (1889) L.R. 17 Cal. 580 their Lordships of the Privy Council expressed the opinion that there was no rule that a person named as co-plaintiff was not to be treated as a plaintiff unless he signed and verified the plaint. From certain expressions in their Lordships' judgment it appears that they were of opinion that the signing of the plaint was not an essential part of it. Rajit Ram v. Katesar NathI.L.R. (1896) All. 396 and Shib Deo Misra v. Ram Prasad I.L.R. (1924) All. 637 were cases where the plaint had not been properly verified on behalf of the plaintiff, and that was considered to be a mere technical irregularity and the plaintiffs were allowed in those cases to verify the plaints in a proper manner.

14. In Basdeo v. John SmidtI.L.R (1899) All. 55 the High Court of Allahabad has held that the mere fact that the plaint in a suit has not been signed by the plaintiff or by a person duly authorised by him will not make the plaint absolutely void. Strachey, C.J. observes (p. 60):-

The argument on behalf of the appellant is shortly this, that where a plaint is not signed in accordance with Section 51 [now Order VI,Rules 14 and 15(1)], not merely is there an error, defect or irregularity', but there is no suit : the plaint is 'waste paper', and the Court has no suit before it which it can legally decree. From this argument I entirely dissent. Section 48 [now OrderIV Rule 1] of the Coda shows that a suit is instituted by presenting a plaint to the Court) or to the proper officer. The Coda contains no definition of a plaint, but Section 50 [now Order VII, rules 1, 2, 4, 5 and 6] shows what a plaint substantially is, and states the various particulars which it must contain. It says nothing about signature, and in no way suggests that what it describes as a plaint is not a plaint if it is unsigned or if the signature is in any way defective. Section 51 [now Order VI,Rules 14 and 15(1)] deals with the signature and verification of the plaint. It places the signature and the verification on exactly the same footing...There is nothing whatever in Section 51 to suggest that, if its terms are not complied with, the defect stands on any different footing from the other defect mentioned in Section 53(6) [now Order VI, Rule 17, or Order VII, Rule 11], or involves any other consequence than rejection of the plaint if not amended in accordance with an order for amendment, or that the defect cannot be waived like other initial irregularities, or that the plaint by reason of thedefect is necessarily 'waste paper,' or that there is no suit legally before the Court, The object of the verification of the plaint is to fix upon the plaintiff the responsibility for the statements which it contains, and to afford a guarantee of his good faith. The object of the signature to the plaint is to prevent, as far as possible, disputes as to whether the suit was instituted with the plaintiff's knowledge and authority. I do not underrate the importance of this : but there may be other ways of establishing the plaintiff's responsibility besides signature; and the fact that the Code contains no provision requiring an appellant to sign his memorandum of appeal supports this view.

15. Similarly, in In the matter of the petition of Bisheshar Nath I.L.R. (1917) All. 147 Mr. Justice Walsh held that Order VI, Rule 14, of the Code of Civil Procedure, which requires a pleading to be signed by a party, is merely a matter of procedure. The proper signing of the plaint, he holds, is a matter of practice only, and if a mistake or omission is made, it may be amended at any time. Similarly, in Ma Ngwe Kin v. MaHme I.L.R. (1923) Ran. 42 Mr. Justice Mac Coll has held that failure by a party pleading and his pleader (if any) to sign on the pleading as required by Order VI, Rule 14, of the Code of Civil Procedure, is a technical irregularity to which the provisions of Section 99 of the Civil Procedure Code would apply.

16. I am of opinion that the defect in the plaint is only a technical irregularity and 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, I think I should allow the amendment which has been asked for. I must express my disapproval of the plaintiff's neglect to conform to the rules of this Court by ordering him to pay all costs up to date including the costs of the amendment.


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