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M. Parthasarthu and ors. Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberW.P.S.R. No. 35571 of 1970
Judge
Reported inAIR1971AP49
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order 6, Rules 14 and 17
AppellantM. Parthasarthu and ors.
RespondentThe State of Andhra Pradesh and anr.
Appellant AdvocateY. Sivarama Sastry, Adv.
Respondent AdvocatePrincipal Government Pleader
Excerpt:
.....that fact. but, at the same time it should be remembeed that the court must be satisfied that the person signing and verifying the petition on behalf of the parties is duly authorised to do so. 13. even so, learned counsel submitted that the requirement offiling an affidavit has been satisfied in this case by the fourth petitioner who had filed and verified the petition on behalf of the other petitiones, has himself filed an affidavit by a person who is actually signing and verifying the petition does not meet the reuirements of the sitation. otherwise, the very purpose for whichsuch an affidavit is required is likelytobe defeated. if the court is to be satisfied that the parties had authorised him to sign and verify the petition on their behalf,it is their affidavit that is essential..........6, civil p.c., hve bcome applicable to writ proceedings, accordingly, if a party is unable ti sign writ petition himself any person duly authorised him can sign the same. he code does not define the words 'duly authorised'. granting a power of attorney iscertainly a due authorisation' universally acceted by law. what other modes of due aithorisation could be adopted by law. what other modes of 'due authorisation; could be adopted and whether a mere letter of authorisation is one such mode of 'due authorisation' is the question now to be considered.3. though it is not of common occurrence and may happen very rerely. yet the possibility of one person claiming to file a writ petition on behalf of several other persons,but doing so without thier authority and consent or even knowledge.....
Judgment:
ORDER

1. Fourteen persons purport to file this writ petition. Though allof them signed the vakalt from onlyone of them signed and verified the writ petitionstating that he was doing so foir himself and onbehalf of other petitioners. A letter entitled 'authorisation latter' purporting to be under Rule 17 of the Civil Rules of Practice and Order 6, rule 14, Civil P.C. signed by petitioners 1 to 3 and 5 to 14 was also filed with the writ petition. It says:-

'WE, the undersigned petitioenrs hereby authorise Sri G. Pattabhirama Sarma 4th Petitioner in Writ Petition No.1 of 1970 to sign and verify the writ petition on our behalf.'

The Officer took an objection that all the petitioners shuld either sign and verify thewrit petition or theyshoudl file an affidavit or a Poer of Attorney authorising the 4th petitioner to sign and verify the writ petition.. It was objected that a mere letterof authorisation is not sufficietn compliance with the Rules. The learned counsel for the petitioner disagreed with thisobejction and hence the matter has been referred to me.

2. Rulle 3 (a0 of the Rules which regualte the proceedings under Art. 26 (of the Constituion) published on 21-5-1970 requires that the petitions shall be siged and verified bythe petitioners in the manner proved for signing and veritifaction of pledings under the Code of Civil Procedr, Order 67, Rule 14 of the Civil Procedure Code is the relevant provision and it lays down that every pleading shall be signed by the party and his pleader (if any); Where, however,a party, by reason of absence of for other good cause, in unablle to sign the pleading it may be signed by any person duly authorisied by him to sign thesae o to sue or defned on his behalf By virtue of the provisions of Rule 3(a0 , the requiremennt of Rule 14 if Order 6, Civil P.c., hve bcome applicable to writ proceedings, Accordingly, if a party is unable ti sign writ petition himself any person duly authorised him can sign the same. he Code does not define the words 'duly authorised'. Granting a power of Attorney iscertainly a due authorisation' universally acceted by law. What other modes of due aithorisation could be adopted by law. What other modes of 'due authorisation; could be adopted and whether a mere letter of authorisation is one such mode of 'due authorisation' is the question now to be considered.

3. Though it is not of common occurrence and may happen very rerely. yet the possibility of one person claiming to file a writ petition on behalf of several other persons,but doing so without thier authority and consent or even knowledge cannot be altogether excluded. It should be noted that the right to invoke the extraodinary jurisdiction of this Court under Article 26 is a personal remedy. Only a person who is aggrived by something done or omitted to be done can bring a cause to this Court by way of a writ petition, It is therefore, essential to ascertain that only aggrieved personsss come to this court. It is only in order to find out petitioners are such persons, the procedure of Rule 14 of Order, 6, Civil P.C. is adopted in writ proceedings aslo. If the party or parties himelf or themselve sign the petition,. it is well and good. Otherwise, the person signinng and verifying thepetition must obtain 'due authorisation for the other petitioners. Undoubtedly it is only a rule of covennnience but also one of purdence to insist upon productionof a power of Attorney or an affidavit, evidencing the claim of the party who signs andvertifies a petition that he has been duly authorised by the other petitioners so to do.

An affaidvait is a sworn statement of the other petitioners duly attested by an authority authorised by law to so attest. The possibility of getting fales authorisatins is thus excluded orm in any case minnimised by making a sworn statement in the presence of a duly cosituted authority. It is partient to note that clause (b) of Rule 3 of the Writ petition Rules requiries that:-

'The facts relied on by the petitioner shall be verified by an affidavit which shall be filed along with thepetition It is thus mannifest that the Court is very anxious to have not oly the petitioners that come to the Court but also the fcts alleged by them are verified Such vertification is easily done by an affidvit purported to be signned by order petitioners is neither a sworn statement of those personns nor is it signed in the presence of a recognised auithority. Thus, insistence upon the filling of a power of Attorney or on a swornn affidabit is a rule of convenience as well as of prudence.

4. Moreover, readinng Rule 3 (a) of the Rules and Order 6, Rule 14 of the Code of Civil Prodedure with the other relevant rules of procedure demonstrates that some such proof of 'due authorisation' is necessary Rule 20 of the Writ Petition Rules says:-

'All the other rules reating to causes and matters coming before the Appellate Side of the High Court will apply to the Writ Petitions annd the Writ Appeals in so far as they are not inconsistent withthese rules.'

Thus, the Appellate Side Rules of this Court in so far as they are not inconsistent with these Rules, are made applicable to Writ Proceedings. Rule 23 of the Appeals Side Rules of Andhra Pradesh requires the vakalatnama to be executed or its execution attested before any one of the authorities enumerated therein. That authorities enumerated therein. That authority at functionary shall certify byhis signature and designation that the Vakaltnma has been duly executed. Likewise, under Rule 52 of the same Rules, if a petition is presented by a party, it shall be signaed or marked by him. and such signature or mark shall be acknowledged before the Registrar. or some other functionary who shall certify therein that the contents of the petiion wee expained by him and the signature of mark of the petitioner was made or acknowledged before him.

Similarly, as per Rule 56, affidavits intended for use in the appellate side of this Court have be made before any one of the authorities or function aries enumerated therein and such officer or person before whom an affidavit is made sahll state the day when and the place where the same is taken and sign his name and description at the end, stating that the affidavit was swornn or solemnly affirmed in his presence. Even alterations and unter lineations are required by sub-rule (4)to be authenticated by the initial of the officer or person. Thus, great cars is taken to see that every vakalat or petition or affidavit filed before the Court is signed or sworn by the person purporting to file it. Rule 52 deals with petitions and there is no reason to hold that the perautions taken for certifying the signature on the petitions arenot intended to apply to the filing of Writ petitions.

It is, therefore, reasonable to assume that the words 'duly authorised' in Rule 14 of Order 6, Civil P.C. mean and require that such authorisation should be in some form analogoue to the requirements of Rule 52 of the Appellate Side Rules.

4. Moreover, reading Rule 3 (a) of the Rules and Order 6, Rule 14 of the Code of Civil Procedure with the other relevant rules of rocedure demonsrates that some such proof of 'due authorisation' is necessary. Rule 20 of the Writ Petition Rules says;-

5. The relevant provisions of the Civil Rules of practice alsomake this positionvery clear. It may be that thoe rules maynotinterms applyto Writ proceedings. But, the principle of the procdeure prescribed therein for Vakalatnnamas and affidavits is similar to the one conntgained in the Appellate Side Rules. Rule 18 relates to the appointment of Pleaders. It also requires that the executionof the Vakalatnama shall be attested by an officer or functionary referrred to therein.. Rule 33 requires an affidavit to be filed as proof of facts in interlocutory proceedins. Affidavits under Rule 34 have to be sworn in before a recognised officer or functionary, More significant is Rule17 which requires to be signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed in Court,, tobether with an affidavit, verifyuing the ignautre of the party and stating the reson of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings of the person signing or verifying the same.

This Rule throws much light on the problem to be resolved in this reference. It requires, that a written authority siged by the party, who is unable to himelf sign or verify the proceedings, together with ann affidavit statig the reasons of his liability for signing and verifying the proceeding himself, to be filed. No reason is conceivable for making distinction between this procedure that is made applicable and the procedure that has to be followed in signing and verifying writ petitions.

6. It follows therefore that it is not only a rule of convenience and prudence but also a logical consequnce of the relevant rules that a party, who is unable to sign te writ petition himself. should either file a Power of Attorney or an affidavit stating the reason for his inability to personally sign and verify the petition and authorising some other person to sign andverify on his behalf.

7. Reference to the decided cases cited at the Bar does not lead to a different conclusion. In Subah Pillai v. Sankarapandiam Pillai,AIR 1948 Mad 369, the Division Bench was dealing with a case where a plaint was filed with the consent and knowledge of the plaintiff but not signed by him. The Court held that the absence of signature is an omission which could be cured and indeed should be corrected in the interests of justice. While doing so, the learned Judge refer. red to the decision of the Privy Council in Mohinimohun Das. v Bungai Buddan Saha Das, 1890)LIR 17 Cal 580 (PC) and a decision of the Allahabad High Court in Basdeo v.John Smidt. (1899) LIR 22 All 5 (FB), the result of the two decisions by the Judical Committee and the High Court of Allahabad is that;-

'Where a plaintiff has not signed a plaint, filed with his knowledge and conent, it is an omission which can be cured, and, indeed should be corrected in the inteests of justice.'

The learned Judges of the Madras High Court followed the same Rule.

8. Learned author Mulla at page 720 of his Commentary on the Code of Civil Procedure, 13th Edition has this to say on the question.

'The signing of plaints is merey a matter of procedure. If a plaint is not signed by the palintiff or by a personduly authorised by him in that behalf. and the defect is discovered at any time before judgment, the Court may allow the palintif to amend the plaint by signing the same . If the defect is not discovered until the cvase comes onf or hearing before an appellate Court, the appellate Court may order the amendmentto be made in that Court. The appellate court ought not todimiss the suit or interfere with the decree of the lower Court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such defect as could affect the merits of a case or the jurisdiction of the Court.' The above authority shows that signing and verifying a plaint is onnly a matter of procedure; nevertheless a requirement of the law. If the failure of the plaintiff to sign and verify the plaint is discovered at any state, it should be permitted to be corrected. At the same time, if the plaint purports to be signed andverified by some person other than the party itshuld be shown that person has done so ondue authorisation, i.e., with the knowledge and authority of the party. This does not however, exclude the need of adequate proof of the claim that the person has signed the palint after securing due authorisation from the party.

9. The Patna High Court in Bibi Asghari v. Md. Kasim. : AIR1951Pat323 , held that it is sufficient if it is shown that a person, who has signed the plaint onbehalf of a plaintiff had done si with the knowledge and authority of the latter. It is plain that such knowledge and authority should be shown to the satisfaction of the Court, to exist.

10. In Benegal Jute Mills v. Jewarj Heeralal. AIR 1943 Cal 13, it was held by the Cout, after examining the person concerned in open Court. that during the temporary absence of the principlas, the Munib Gumashta was orally instrued and authorised to do everthing in connection with the busines and, therefore, he was duly authorisness and therefore, he was duly authoried as contemplated by Order 6. Rule 14, Civil P.C. From this it was sought to be argued by the learned counsel that even oral authorisation is sufficient. It should not, however, beforgotten that this oral authorisation was accepted by the Calcutta High Court only after examining the person concerned inopen Court and recording his evidence. Afer all, inevery case the real questio is whether there is 'due authorisation' and the Court, if it thinks it necessary can call for and examine witnnesses or examine oter evidence in order to test whether there has been due authorisation or not. However, it is unndoubted that it would result in great waste of time and money of the Court as well as the parties to establish due authorisation by adducing oral evidence for due authorisation must be proved as a fact, Filing of an affidavit or a Power of Attorney are theeasiest and at the same time safest method avaiable to prove that fact.

11. Once againthe decision the All India Reporter Ltd. v. Ramchadra D. Datar, : AIR1961Bom292 , lays down the same rule that the provisions of O.6 Rule 14 merely relate to procedural requirements in preenting signing and verification of a plaint and non-complaiance therewith is not fatal and can be cured byamendment at any stage. An observation here resting on AIR 1943 Cal 14 that:

'The words 'duly authorised; in Order 6 Rule 14 need not be restricted to mean authorised by proper written authority or by power of Attornney.' was very much strees by the learned counselbefore me. It istrue ral authorisation is ermisible. But, at the same time it should be remembeed that the Court must be satisfied that the person signing and verifying the petition on behalf of the parties is duly authorised to do so. That satisfaction can bre brought about only by certain acepted modes of proof. As I said, adducing oral evidance in thisbehalf results in great los of time to the Court and hard ship to the parties and is, therefore-undersirable.

12. There is, therfore no doubt in my mind to hod that in order to aviod all future difficulties, doubts complication it is esential for the parties to prove 'due authorisation' by producing a Power of Attorey or a sworn affidavit of the party who is not personally signing and vertifying the petition.

13. Even so, learned counsel submitted that the requirement offiling an affidavit has been satisfied in this case by the fourth petitioner who had filed and verified the petition on behalf of the other petitiones, has himself filed an affidavit by a person who is actually signing and verifying the petition does not meet the reuirements of the sitation. What is required is the affidavit ofthe party or parties who is or are no signing and verifying. the petition does not meet the requirements of the situation. What is required is the affidavit of the party or parties who is or are not signing ad verifying. Otherwise, the very purpose for whichsuch an affidavit is required is likelytobe defeated. After all, the fourth petitioner who is swearing to the affidavit has already signed the petition andit would not be difficult for him to swear to another affidavit. If the Court is to be satisfied that the parties had authorised him to sign and verify the petition on their behalf,it is their affidavit that is essential to prove such authorisation and not the affidavit of the person who has come forward that he has got a representative capacity.

14. For the reasonss, I answer the reference by holding that if some of the paties to the writ petition do not personallysign andverify it, but authorie somebody else to sign and verify on their behalf either a Power of Attorney or an affidavit sworn by them in the preence of an attesting Officer or functionary recognised by law stating the reasons for thier inability to sign and verify the petition personally and authorising another person to sign and verify on thier behalf, should be filed.

15. Before I part with the case, Imust express my thanks to the lealrned Principal Governnment Pleader who has rendered me valuable assistance on my request.

16. Reference answered.


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