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Heydorn and Company Vs. Muhammad Shafi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All348
AppellantHeydorn and Company
RespondentMuhammad Shafi and anr.
Excerpt:
.....mah.lj 74; 1993 lab ic 1858 overruled]. - it is no doubt of the utmost importance that a defendant should not be required to plead until his adversary has shown that he has put in such a case before the court as the defendant is required to answer, and if the court of small causes allowed the plaintiff to amend the pleadings in such a way as to place this point beyond dispute, and the plaintiff had failed within the time allowed to make the necessary amendments, it would have very properly dismissed the suit......of small causes at cawnpore on the 24th of may, 1911. the plaint was signed and verified by one mumtaz ahmad. mumtaz ahmad purported to be acting and to be authorized to act for messrs. heydorn & co. when the power under which he professed to act was scrutinized, it was found that it did not bear the stamp required by act no. ii of 1899. the result was that the power could not be admitted in evidence for any purpose. apparently the defect in the power was not realized by the court until some time after the plaint had been brought upon the register. but when the case came on for hearing a preliminary objection was taken on behalf of the defence to the effect that the suit was not entertainable, as the plaint was not properly signed and verified, and there was no proper presentation of.....
Judgment:

George Knox, J.

1. A suit was instituted in the Court of Small Causes at Cawnpore on the 24th of May, 1911. The plaint was signed and verified by one Mumtaz Ahmad. Mumtaz Ahmad purported to be acting and to be authorized to act for Messrs. Heydorn & Co. When the power under which he professed to act was scrutinized, it was found that it did not bear the stamp required by Act No. II of 1899. The result was that the power could not be admitted in evidence for any purpose. Apparently the defect in the power was not realized by the court until some time after the plaint had been brought upon the register. But when the case came on for hearing a preliminary objection was taken on behalf of the defence to the effect that the suit was not entertainable, as the plaint was not properly signed and verified, and there was no proper presentation of the plaint. The Court of Small Causes arrived at the conclusion that Mumtaz Ahmad had no locus standi and the pleader appointed by Mumtaz Ahmad had no locus standi before the court and the suit was accordingly dismissed. It does not appear that the attention of the court was directed to a case of this Court, Basdeo v. John Smidt (1900) I.L.R. 22 All. 55. That case was, it is true, decided upon the Code of Civil Procedure as it stood in the year 1899. But in regard to this matter the only difference that I can find between the Code as it stood in 1899 and the Code of 1908 is that the present Code is in favour of all mere technical defects in pleadings being amended in such a manner that the court can determine the real questions in controversy between the parties. The real questions in controversy are set out in the four issues framed by the court below. Those questions have not been determined. The court has acted upon a technical plea. It is no doubt of the utmost importance that a defendant should not be required to plead until his adversary has shown that he has put in such a case before the court as the defendant is required to answer, and if the Court of Small Causes allowed the plaintiff to amend the pleadings in such a way as to place this point beyond dispute, and the plaintiff had failed within the time allowed to make the necessary amendments, it would have very properly dismissed the suit. The court might have put the plaintiff to terms such as seemed necessary to indemnify the defendant for having brought him to court for answering a premature suit. The Court of Small Causes not having done so has acted with such irregularity as calls for an interference. I accordingly set aside the order of dismissal and I order that the suit be returned to the Court of Small Causes, Cawnpore, with directions, to take it up at the stage at which it was before the order of the 12th of August, 1911, was passed, and under the provisions of Order VI, Rule 17, to allow the plaintiff to amend the pleadings and then to determine the real questions in controversy between the parties or if the necessary amendments have not been made within the time allowed, to dismiss the suit. Costs will abide the event.


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