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Fateh Chand and ors. Vs. Mansab Rai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1898)ILR20All442
AppellantFateh Chand and ors.
RespondentMansab Rai
Excerpt:
civil procedure code, section 53 - verification of plaint--plaint verified when in an incomplete state--amendment of plaint. - - the plaint on the face of it was properly verified in accordance with the provisions of the law, and for the purposes of ascertaining whether the verification was a good verification in form, the fact whether it was true was wholly immaterial......of which this appeal has arisen has been dismissed by the subordinate judge on the ground that the plaint filed on behalf of the plaintiffs was not properly signed and verified. what took place was this:--the plaint was drawn up on two sheets of plain paper, and it was signed and verified at the foot by the plaintiffs as required by section 51 of the code of civil procedure: this was done by the plaintiffs at bulandshahr. they sent the plaint to a pleader at meerut for the purpose of its being filed in the court there. the pleader instead of attaching to the plaint the stamp paper requisite for the court-fees payable on the plaint, as he should have done, took out the first sheet and transcribed the contents of it on the stamp paper. this was certainly a reprehensible proceeding on the.....
Judgment:

Blair, J.

1. The facts of this case fall within the ruling in two unreported oases of this Court. The one is the case F.A No. 269 of 1893, Ganga Sahai v. Muhammad Ali Jan Khan * decided on the 9th of December 1895, and the other is F.A. No. 149 of 1895 Munshi Fakir Chand v. Makesh Das decided on the 1st of April 1897. No reported cases have been cited to me which are at all on all fours with the matter at issue in the present appeal. I see no reason to differ from the conclusions of the Judges who decided those two unreported appeals, and I accordingly make the same order which they did. I set aside the decree below and remand the case to the lower Court with the direction that it should re-admit the suit under its original number in the register and return the plaint to the plaintiffs for amendment according to law. This order is made under Section 562 of the Code of Civil Procedure. The Court of First Instance will then proceed to decide the case on the merits.

*The judgment in this case was as follows:

Banerji and Aikman, JJ.--The suit out of which this appeal has arisen has been dismissed by the Subordinate Judge on the ground that the plaint filed on behalf of the plaintiffs was not properly signed and verified. What took place was this:--The plaint was drawn up on two sheets of plain paper, and it was signed and verified at the foot by the plaintiffs as required by Section 51 of the Code of Civil Procedure: this was done by the plaintiffs at Bulandshahr. They sent the plaint to a pleader at Meerut for the purpose of its being filed in the Court there. The pleader instead of attaching to the plaint the stamp paper requisite for the court-fees payable on the plaint, as he should have done, took out the first sheet and transcribed the contents of it on the stamp paper. This was certainly a reprehensible proceeding on the part of the pleader; he should have known that the plaint to be filed in Court was the document which the plaintiffs had signed and verified, and not a document which consisted partly of matter which had been signed and verified, and partly of matter which had been written after signature and verification. The plaint in this case as filed was therefore defective, but we are of opinion that the Subordinate Judge should have returned it to the plaintiffs for amending it by signing and verifying it as it stood: he ought not to have dismissed the suit. It was the duty of the Court to return the plaint before settlement of issues, and the mere fact that issues were settled could not deprive the plaintiffs of the opportunity which they might otherwise have had and ought to have had of curing the defect which existed in the plaint.

We set aside the decree below and remand the case to the lower Court with the direction that it should readmit the suit under its original number in the register and return the plaint to the plaintiffs for amending it by signing and verifying it according to law.

The parties will bear their own costs of this appeal.

?The judgment in this case was as follows:

Banerji and Aikman, JJ.--The suit out of which this appeal has arisen has been dismissed by the lower Court on the ground that the plaint was not properly verified. The verification has been held to be defective for two reasons. First, that after the whole of the plaint as it was filed in Court had been prepared the plaintiff did not verify it, but what was done was this: The plaint was written out on four sheets of foolscap paper, and at the end was signed and verified by the plaintiff; but the pleader who filed the plaint, instead of attaching to it the stamps required for the claim, took out the first two sheets and caused their contents to be copied on the stamp papers. The second ground on which the Subordinate Judge considered the plaint to be defective i9 that, although the plaintiff verified the whole of the statements contained in the plaint as true to his knowledge, it appeared as to some matters that he had no personal knowledge. As regards this second ground, the conclusion, of the Subordinate Judge is erroneous. The plaint on the face of it was properly verified in accordance with the provisions of the law, and for the purposes of ascertaining whether the verification was a good verification in form, the fact whether it was true was wholly immaterial. As to the first ground, as we held in First Appeal No. 269 of 1893, which was a case on all fours with the present, the Subordinate Judge should not have dismissed the suit but should have returned the plaint to the plaintiff in order that it might be properly verified.

We allow this appeal, and. Retting aside the decree below, remand the case under Section 562 of the Code of Civil Procedure, with directions to re-admit it under its original number on the register and dispose of it on the merits, after causing the plaint to be amended by being properly verified; Costs will abide the event.


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