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Katesar Nath and ors. Vs. Rajit Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All396
AppellantKatesar Nath and ors.
RespondentRajit Ram and ors.
Excerpt:
civil procedure code, sections 52, 53, 578 - plaint--verification of plaint-result of defective verification--amendment--procedure. - - 'the contents of the petition of plaint are true to the best of nay knowledge and belief. the use of the expression 'to the best of my knowledge and belief' might raise a doubt oh that point, and where a plaintiff' does verify a plaint as true to his knowledge, he had better do so in the simple words of section 52 of the code of civil procedure, and simply say that the plaint is true, or the statements in the plaint are true, to his knowledge......verification be entertained after settlement of issues and when a case has gone to trial? (4) is a defect in verification such as that in this case a sufficient ground for the dismissal of the suit2. there is no doubt that the verification in the present case might raise a doubt in some persons minds as to whether the plaintiffs verifying it infant that all the averments in the plaint were true to their knowledge. the use of the expression 'to the best of my knowledge and belief' might raise a doubt oh that point, and where a plaintiff' does verify a plaint as true to his knowledge, he had better do so in the simple words of section 52 of the code of civil procedure, and simply say that the plaint is true, or the statements in the plaint are true, to his knowledge. it is not necessary.....
Judgment:

John Edge, Kt., C.J.

1. The plaint in the suit in which this reference has arisen on appeal was signed by the three plaintiffs and was verified by them in the following: 'The contents of the petition of plaint are true to the best of nay knowledge and belief.' Owing to a case recently reported, namely Balgobind Das v. Ganno Bibi Weekly Notes 1896 p. 75, the Bench hearing the appeal referred the following questions to a Full Bench: '(1) Whether a plaint verified in the terms in which the plaint in this case is verified is defective in law? (2) If so whether such a plaint can be amended after settlement of issues? (3) Should an objection as to the form of verification be entertained after settlement of issues and when a case has gone to trial? (4) Is a defect in verification such as that in this case a sufficient ground for the dismissal of the suit

2. There is no doubt that the verification in the present case might raise a doubt in some persons minds as to whether the plaintiffs verifying it infant that all the averments in the plaint were true to their knowledge. The use of the expression 'to the best of my knowledge and belief' might raise a doubt oh that point, and where a plaintiff' does verify a plaint as true to his knowledge, he had better do so in the simple words of Section 52 of the Code of Civil Procedure, and simply say that the plaint is true, or the statements in the plaint are true, to his knowledge. It is not necessary for a plaintiff to say that the facts which be alleges to be true to his knowledge are also true to his belief. If matters alleged as facts are true to the plaintiff's knowledge they must be true to his belief. Where a plaint contains averments of fact, some of which are within the plaintiff's knowledge and, others of which are made upon information which he believes to be true; if for example, the averments in the first three paragraphs are made on his own knowledge, and the averments in paragraphs 4, 5 and 6 are made upon information and not on the knowledge of the plaintiff, the verification should be, as to the averments in paragraphs 1, 2 and 3, that they are true to my knowledge, and as to paragraphs 4, 5 and 6, that they are made on information which I belive to be true. There could be no misapprehension as to what such a verification meant. Probably, the verification in this case was intended by the plaintiffs to be a verification that all the facts stated were true to their knowledge. As was pointed out in Girdhari v. Kanhaiya Lal I.L.R. 15 All. 59, the vernacular copy of the Code of Civil Procedure is not, so far as Section 52 of the Code is concerned, an absolutely correct translation, and is likely to mislead, persons trusting to the vernacular copy. Although the verification in the present case is not in strict compliance with the Code, it substantially complies with it, and after the trial had commenced with the settlement of issues, the defect, if it was a defect, need not have been taken notice of. This is our answer to the first question.

3. For the purpose of answering the remaining questions we will assume that the verification is defective and not in compliance with Section 52 of the Code, and that it omitted to indicate which matters were true to the knowledge of the plaintiffs and which matters, if any, were stated on information believed to be true. Now under Section 53 the Court of First Instance, unless acting under the orders of an appellate Court, could hot return a plaint to be amended after the, settlement of issues; but if the plaint required amendment and the fact was only discovered after issues had been settled, the Court could, under Section 53, Clause (c), amend the plaint or cause it to be amended at any time before judgment. Under Clause (c) the plaint would still remain on the file and be pact of the file, although the Court of First Instance might depute any person, selected by it to take the plaint for example to a parda nashin woman who was plaintiff, or to a person who, through illness, was unable to attend Court, for the purpose of the order of the Court being complied with. Any amendment made under such circumstances would, in our opinion, be an amendment by the Court itself. Under Clause (b) the plaintiff need not amend at all after the plaint is returned to him, but if he does not, he incurs the penalty of Section 54. Under Clause (c) this amendment is made by order of the Court and the party has to comply with it. Further, if the amendment is one going to the maintenance of the suit and the defect in the plaint is not discovered until the suit gets into a superior Court on appeal, the appellate Court, in our opinion, can either order the amendment to be made in that Court, or, for example in a case in which there has been not only misjoinder of parties but misjoinder of causes of action, the appellate Court may order the Court of First Instance to do what it ought to have done at the, proper stage of the suit, when the suit was before it, and return the plaint to the parties so that they may make their election as to which of them is to continue the suit and may make the necessary amendments. Such a course was pursued by this Court in Salima Bibi v. Sheikh Muhammad supra p. 131. Even where a Court of First Instance should have returned the plaint under Clause (b) of Section 53 of the Code of Civil Procedure for amendment and did not do so, but tried the suit without amendment, and the suit is before an appellate Court in appeal, the appellate Court need take no notice of the defect of verification if the case comes under Section 578 of the Code of Civil Procedure. It would be difficult to imagine any case in which a defective verification of a plaint could affect the merits of the case or the jurisdiction of the Court; so that practically, in our opinion, on a mere question of defect of verification, it is not necessary for an appellate Court to pay any attention or take any steps to rectify a defect in the verification of the plaint.

4. The case which was reported in the Weekly Notes for 1896 p. 75, was a peculiar one. In that case the plaint had been returned for an amendment, and when the case was before this Court on appeal the plaint was not on the record, but was with the plaintiff in her private custody, and not in the custody of the Court. We are authorized to say that the learned Judges who were parties to the decision did not intend to suggest that the result of defective verification must necessarily be the dismissal of the suit.

5. What we have said answers the four questions referred to the Full Bench With these answers the appeal will go back to the Bench which made the reference.


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