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Suresh Krishnaji Patil and ors. Vs. Shankarappa Shidrayappa Balekundri and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 121 of 1983
Judge
Reported inAIR1983Kant226; ILR1983KAR376; 1983(1)KarLJ404
ActsCode of Civil Procedure (CPC), 1908 - Order 4, Rule 1
AppellantSuresh Krishnaji Patil and ors.
RespondentShankarappa Shidrayappa Balekundri and anr.
Appellant AdvocateK. Channabasappa, Adv.
Respondent AdvocateS.G. Kulkarni, Adv. for ;B.V. Deshpande, Adv.
Excerpt:
.....to which my attention has been drawn bearing on the question as to whether failure to sign the plaint properly is such a material defect that the court would be entitled to say that in the absence of a plaint being properly signed there is no suit before the court at all, or whether the failure to sign the plaint properly is merely a formal defect which can be cured at any stage on a proper application being made to that effect. the rule requiring a plaint to be signed applies to all the plaintiffs, and if the privy council though that the failure of one of the co-plaintiffs to sign the plaint was immaterial, it clearly shows that the privy council considering this a merely formal error and not a serious defect which went to the root of the matter and which vitiated the whole..........to which my attention has been drawn bearing on the question as to whether failure to sign the plaint properly is such a material defect that the court would be entitled to say that in the absence of a plaint being properly signed there is no suit before the court at all, or whether the failure to sign the plaint properly is merely a formal defect which can be cured at any stage on a proper application being made to that effect. the former view has been taken by sir. john beaumont in chunilal bhagwanji v. kanmal lalchand : air1944bom201 . in that case a person acting under a power-of-attorney executed by a next friend of a minor presented a plaint and signed it, and the learned chief justice held that he had no authority to do so and that the plaint was not a valid plaint. the.....
Judgment:

Heard.

1. The learned counsel appearing for the appellants strenuously argued that there was a fundamental defect in the presentation of H. R. C. application, namely, H. R. C. application H. R. C. No. 15/1969 inasmuch as the lawyer who presented the petition did not file a proper Vakalath in the sense that the Vakalath he filed before the Court was not duly signed by the party. Neither the Court nor the other side noticed this fact and the proceeding went on as if everything was quite regular. Ultimately, H. R. C. Petition No. 15/69 came to be decreed in favour of the petitioner-landlord. An appeal was instituted against the said decree for eviction and the appeal was dismissed and the matter was brought to this Court in a Civil Revision Petition and the C. R. P. was dismissed on 7-3-1974 and the order of eviction became final. It is thereafter that the tenant instituted O. S. No.164/80 before the Prl. Civil Judge, Belgaum praying for a declaration that the decree obtained for eviction in H. R. C. No. 15/69 was void and that it could not be enforced against the plain tiff-tenant. After hearing, the suit was dismissed by the learned Civil Judge and thereafter an appeal was instituted before the District Judge, Belgaum in R. A. No. 176/80 on his file. The IInd Addl. District Judge, Belgaum, who heard the appeal raised the following points as arising for his consideration in the appeal:

(1) Whether the plaintiffs and defendant No. 2 continues as tenants in the suit property on the death of their father Krishna Patil either on facts or by virtue of the operation of law?

(2) Whether there was an order of eviction passed by the Court under the H. R. C. proceedings (sic) was without jurisdiction?

(4) Whether the order of eviction passed in H. R. C. No. 15/1969 by the H. R. C. Court and confirmed in the appeal by this Court and in the Revision Petition by the Hon'ble High Court is a nullity and void as against the plaintiffs and defendant No. 2 ?

(5) Whether the plaintiffs and defendent No. 2 were estopped from raising a plea that they are not the tenants in the suit property ?

(6) Whether the suit was maintainable in the present from in view of the decision against the plaintiffs in H. R. C. proceedings, H. R. C. Appeal and the Revision Petition and in the Execution proceedings ?

(7) Whether the learned Civil Judge, has not considered the issues and controversies before him properly ?

(8) Whether the learned Civil Judge has not given the findings on the issues separately ?

(9) Whether the findings of the learned Civil Judge are erroneous ?

(9b) If so on which of the issues ?

(10) Whether the judgment and decree of the learned Civil Judge is liable to be set aside ?

2. The learned District Judge, reassessing the evidence on record, in the light of the arguments addressed before him, held against the appellants on all the points and in that view dismissed the appeal and confirmed the judgment and decree of the trial Court. Aggrieved by the same, the plaintiffs have instituted the above second appeal before this Court.

3. Notice was issued to the other side for admission and counsel were heard.

4. The learned counsel appearing for the appellants strenuously urged before me that the entire H. R. C. proceeding was void as the presentation by the counsel was not legal and proper as the Vakalath was not signed by the petitioner and accepted by the advocate. He further submitted that this defect was not cured even till the disposal of the entire proceeding and now the proceedings having been over the Court had become functus officio. He submitted that this important point was not noticed properly by the first appellate Court. Hence, he submitted that that forms the substantial question of law on which this appeal should be admitted.

5. As against that, the learned counsel who was allowed to argue at the stage of admission as the matter was of some consequence to the respondents, submitted that the defect, if at all, was a mere irregularity and that it would not go to the root of the matter and vitiate the decree. He further submitted that any fault committed by an officer of the Court or by the Court itself, should not go to prejudice the interest of a party.

6. The point that I have to consider at this stage of admission is whether there is any substantial question of law which is involved on the facts of this case.

7. Section 100 after amendment requires that this Court should be satisfied that a substantial question of law is involved in the appeal before admitting it and such substantial question of law has to be formulated. It is true that the terms `substantial question of law' is not defined in the Civil P. C. Dealing with that expression contained under Art. 123(1) of the Constitution, the Supreme Court in the case Chunilal V. Mehta and Sons Ltd. v. Century Spinning and . : AIR1962SC1314 , has explained the expression of substantial question of law in para 6 of the judgment. Thus :

'We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affect the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.'

Bearing these salutary principles in mind, I would proceed to consider whether the appeal involves any substantial question of law.

8. The learned counsel, as stated above, submitted that the counsel who presented the H. R. C. petition before the Court did not have proper authority inasmuch as the Vakalath was not signed by the petitioner and it was not accepted by the advocate and hence, he submitted that the entire proceeding is vitiated.

9. It may be mentioned in this context that during the pendency of the proceeding before the Court on person noticed such a defect. No objection was taken. The petition was properly entertained by the Court and registered. Notice was issued to the other side and all procedure was properly followed and the hearing ended in a decree. As stated above, there was an appeal against the decree which was dismissed and a revision was instituted before this High Court which was also dismissed and thus decree for eviction became final, in the year '73, itself. Therefore when the suit was instituted in O. S. No. 164/80 before the learned Civil Judge, Belgaum, no such ground was made out in the plaint and the matter was not agitated before the learned Civil Judge in the original suit. Such a contention was taken in appeal for the first time before the first appellate Court in R. A. No. 176/1980 and the learned District Judge has rejected that contention.

10. Even so, as rightly submitted by the learned counsel for the appellants, if the defect is such as would render the decree void, the question may be raised at any stage in the suit or even in a collateral proceeding (vide : [1955]1SCR117 ). Hence, I have to consider the nature of defect that is pointed out before me and the legal impact of the same on the proceedings. The legal implication of such a defect came up for consideration before the High Court of Bombay in the case Hirabai Gendalal v. Bhagirath Ramachandra & Co. : AIR1946Bom174 . Speaking on this aspect at p. 179 reported in the case his Lordship Justice Lokur speaking for the Division Bench observed thus:-

'The preponderance of judicial opinion, with which we fully agree, established that failure to comply with the provision regarding presentation of a plaint is a mere irregularity, so that if the person presenting it is not properly authorised to do so, the presentation would be irregular, but does not oust the jurisdiction of the Court. In such a case the Court would have a discretion to permit the irregularity to be cured.'

This aspect came up for consideration again before the High Court of Bombay in a subsequent decision in the case Dahyabhai Girdhardas v. Bobaji Dahyaji Kotwal : AIR1953Bom28 . Chief Justice Chagla speaking on this aspect observed in para 2 of the judgment thus:

'Now, there are two decisions of this Court to which my attention has been drawn bearing on the question as to whether failure to sign the plaint properly is such a material defect that the Court would be entitled to say that in the absence of a plaint being properly signed there is no suit before the Court at all, or whether the failure to sign the plaint properly is merely a formal defect which can be cured at any stage on a proper application being made to that effect. The former view has been taken by Sir. John Beaumont in Chunilal Bhagwanji v. Kanmal Lalchand : AIR1944Bom201 . In that case a person acting under a power-of-attorney executed by a next friend of a minor presented a plaint and signed it, and the learned Chief Justice held that he had no authority to do so and that the plaint was not a valid plaint. The learned Chief Justice further held that the suit was never properly instituted, and that a defect of that sort could not be cured by amendment, and the natural course open to the plaintiff was to file a fresh plaint. With respect, the learned Chief Justice did not consider an earlier decision of this Court in Nanjibal v. Popatlal : (1932)34BOMLR628 . As a matter of fact no authorities whatever were cited before the learned Chief Justice.

Turning to the other judgment of this Court in Nanjibhai v. Popatlal, Mirza J., there held that a plaint filed within time can, if not properly signed, be allowed to be signed by the plaintiff at a later state irrespective of the bar of limitation. There the munim of the plaintiff had signed the plaint without having a general power-of-attorney and the plaint was not therefore properly signed, and the learned Judge allowed the plaint to be amended. There is a judgment of the Privy Council which also perhaps throws some light on this matter, and that is Mohini Mohum Das. v. Bunasi Buddan Saha Das, (1890) ILR 17 Cal 580 (PC). In that case the suit was by three co-plaintiffs, and one of the points urged before the Privy Council was that the plaint was signed and verified by one plaintiff alone, and the answer given in the judgment of the privy Council was that that was immaterial as there was no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint. The rule requiring a plaint to be signed applies to all the plaintiffs, and if the Privy Council though that the failure of one of the co-plaintiffs to sign the plaint was immaterial, it clearly shows that the Privy Council considering this a merely formal error and not a serious defect which went to the root of the matter and which vitiated the whole institution of the suit to such an extent that the Court must consider that the suit was not properly instituted at all. It Sir John Beaumont was right in the view that he took, then the suit before the Privy Council was never instituted as far as the co-plaintiffs were convened. Therefore with very great respect, in my opinion the learned Chief Justice was in error in the view that he took. Ordinary I would have been bound by his judgment as a judgment of co-ordinate authority, but there is the judgment of Mizra. J. and also the judgment of the Privy Council to which I have referred. With respect I prefer the judgment of Mizra, J. in Nanjibhai v. Popatlal.'

It may be noted that not signing the plaint before the presentation is a more serious defect than not signing the Vakalath. Obviously in the H. C. R. proceeding the party did not sign the Vakalathnama. Even when the plaint was not signed it was held that it was a mere irregularly which does not go to the root of the matter and it does not vitiate the proceeding. Finally, we have a decision of the Supreme Count in the case Shastri Yagnapururshdasji v. Muldas Bhumdardas Vaishya : [1966]3SCR242 . It was a case heard by five judges. Therein in para 13 of the judgment his Lordship Justice Gajendragadkar, C. J. who spoke for the Bench had occasion to consider this aspect. Speaking on this aspect his Lordship has observed thus:

'Technically, it may be conceded that the memorandum of appeal presented by Mr. Daundkar suffered from the infirmity that respondent No. 1 had signed his Vakalatnama in favour of the Government Pleader and Mr. Daundkar could not have accepted it, though he was working in the Government Pleader's office as an Assistant Government Pleader. Even so, the said memo was accepted by the office of the Registrar of the Appellate Side of the High Court, because the Registry regarded the presentation of the appeal to be proper; the appeal was in due course admitted and it finally came up for hearing before the High Court. The failure of the Registry to invite the attention of the Assistant Government Pleader to the irregularity committed in the presentation of the said appeal cannot be said to be irrelevant in dealing with the validity of the contention raised by the appellants. If the Registry had returned the appeal to Mr. Daundkar as irregularly presented, the irregularity could have been immediately corrected and the Government Pleader would have signed both the memo of appeal and the vakalathnama. It is an elementary rule of justice that no party should suffer for the mistake of the Court or its office. Besides, one of the rules framed by the High Court on its appellate side - Rule 95 seems to authorise an Advocate practising on the appellate side of the High Court to appear even without initially filing a Vakalatnama in that behalf.'

Thus, his Lordship has clearly explained that the facts would involve an additional dimension, namely the fault of a Court or its officer. It is a well established principle of law explained by his Lordship that no party should suffer because of the fault of the Court or its office. On the facts of the present case if the office of the H. R. C. Court had noticed that the Vakalatnama was not signed by the petitioner and if the petition was returned for rectification, obviously, the Counsel who must have filed it inadvertently could have got it signed or would have filed a proper Vakalat form on which the party had already signed. It was not manifestly noticed either by the Counsel or by the office of the Court and the petition was duly registered and further steps were taken on the petition. That being so, it is so obvious that the fault of an officer of the Court could not prejudice the party or the litigant and as such when once it was properly registered, the irregularity if at all was cured, since no further opportunity was given to the party to cure it; it cannot be made the basis to contend after the proceedings terminated to say that the proceedings was not proper. Even assuming that there was an irregularity in the proceeding that would not make decree one without jurisdiction. As already explained above, it is not a matter which affects the jurisdiction of the Court. It is merely an irregularity in the presentation of the petition. Therefore, by no stretch of inference can it be said that the decree becomes a nullity.

11. It is a well established principle that when a Tribunal is given exclusive jurisdiction, the order passed by the Tribunal cannot be questioned in an ordinary Civil Court, unless the order or the decree is a nullity or the Tribunal has not followed the fundamental procedure. The suit O. S. No. 164/80 was instituted on the ground that the decree passed in H. R. C. petition No. 15 of 1959 was a nullity. Both the Courts have concurrently held that it is not so and the defect pointed out before me also would not render the decree a nullity. There is no substance therefore in the appeal. It does not involve an arguable point and hence the appeal is dismissed in limine.

12. At this stage, the learned Advocate for the appellants submitted that the appeallants may be given breathing time to vacate the premises. The other side lawyer agreed to it provided that the tenant clears of all the arrears of mense profits. Hence, time for 30 days from today is granted to the appellants to vacate the premises provided the tenant pays or deposits the arrears of mense profits equal to rental before the trial Court within a fortnight from today.

13. Appeal dismissed.


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