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B.R. Sharma Vs. Nanak Chand Shadi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 801 of 1961
Judge
Reported inAIR1967All487
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 - Order 6, Rules 14, 15 and 17
AppellantB.R. Sharma
RespondentNanak Chand Shadi Ram
Appellant AdvocateM.N. Shukla and ;S.N. Agarwal, Advs.
Respondent AdvocateS.N. Kakker, Adv.
DispositionAppeal dismissed
Excerpt:
civil - authorization - order 6 rule 14 of code of civil procedure, 1908 - document authorizing 'mukhtar- i -am' of the party to sign the plaint - party generally remains away on business - rule 14 does not require any proof whether party was absent or unable to sign the plaint at time when plaint was signed. - - which permits the signing of a plaint by any person duly authorised by the party provided he is unable to sign the pleading by reason of absence or any good cause. where document authorising the mukhtar-i-am of the party to sign the pleading also slates that the party generally remains away on business, the court may permit the mukhtar-i-am to sign the pleading on the ground that the party for good cause was unable to sign the pleading......fourth additional civil judge, kanpur for the recovery of ra. 2412 on the basis of a promissory note the plaintiff firm messrs nanak chand shadi ram alleged that it had business transactions with the defendant appellant b. r. sharma and that on 13-7-1963 he executed a promissory note for rs. 2412 in favour of the plaintiff firm. the appellant admitted the execution of the note and the receipt but alleged that these documents were obtained from him on the understanding that they would be shown to the other parties for the purpose of proving that the plaintiff firm had suffered losses he contended that the note was without consideration. he also raised a number of technical pleas--namely, that the plaint had not been properly framed, instituted and signed by the plaintiff firm according.....
Judgment:

S.S. Dhavan, J.

1. This is a defendant's second appeal from the decree of the Fourth Additional Civil Judge, Kanpur for the recovery of Ra. 2412 on the basis of a promissory note The plaintiff firm Messrs Nanak Chand Shadi Ram alleged that it had business transactions with the defendant appellant B. R. Sharma and that on 13-7-1963 he executed a promissory note for Rs. 2412 in favour of the plaintiff firm. The appellant admitted the execution of the note and the receipt but alleged that these documents were obtained from him on the understanding that they would be shown to the other parties for the purpose of proving that the plaintiff firm had suffered losses He contended that the note was without consideration. He also raised a number of technical pleas--namely, that the plaint had not been properly framed, instituted and signed by the plaintiff firm according to law.

2. The trial court disbelieved the defendant's story that he was induced to sign the note and the receipt without receiving any consideration, but it dismissed the suit on the ground that the plaint had not been properly signed in accordance with the provisions of Order 6 Rule 14 C.P.C. and had not been duly verified in accordance with Order 6 Rule 15 C.P.C On appeal the learned Judge confirmed the finding of the trial court that the defendant's story that he had been induced to sign the note and the receipt without consideration was untrue, but he reversed the lower court's finding that the suit had not been properly filed or that the plaint had not been properly verified. He allowed the appeal and passed a decree for Rs. 2412 with costs and interest future and pendente lite. The defendant has come to this Court in second appeal.

3. Mr. S. N. Agarwal holding the brief of Mr. M. N Shukla contended that the finding of the lower appellate court that the respondent's suit was properly filed and that the plaint was properly verified is erroneous.

4. Learned counsel argued that the plaint was not properly signed because it was signed by the mukhtar-i-am of the partners but there was nothing to prove that the plaintiffs were unable to sign the plaint by reason of absence or any other cause Counsel relied on Order 6 Rule 14 C.P.C. which permits the signing of a plaint by any person duly authorised by the party provided he is unable to sign the pleading by reason of absence or any good cause. The short answer to this argument is that the power of attorney itself stated that the partners are generally away from Kanpur. Where document authorising the mukhtar-i-am of the party to sign the pleading also slates that the party generally remains away on business, the court may permit the mukhtar-i-am to sign the pleading on the ground that the party for good cause was unable to sign the pleading. Learned counsel argued that Rule 14 requires that there must be proof that the party was absent or unable to sign the pleading at the particular time when the pleading was signed. I do not agree if this argument is accepted. Rule 14 of Order 6 would become an engine of oppression and harassment for businessmen who are frequently away from headquarters on business. particularly those who have to go on long tour to distant places. The court should not make a technical fetish of Rule 14 but apply it according to reason and commonsense.

6. Secondly learned counsel contended that the verification of the plaint is defective inasmuch as the mukhtar-i-am stated that the contents of paragraphs 1 to 5 were true to his 'personal knowledge' a statement which was proved to be untrue during his cross-examination. It is true that the Mukhtar-i-am Sheo Bihari did state in the witness-box that he was not acquainted with the business transactions made by the firm and could not state why he had verified paragraphs 1 to 5 of the plaint as true to his personal knowledge. Counsel for the appellant relied on this admission to show that the statement in the verification clause that paragraphs 1 and 5 were true to the personal knowledge of the mukhtar-i-am were incorrect and therefore the plaint was not properly verified. However learned counsel conceded that this Court has the power in second appeal to allow the plaintiffs to verify the plaint. The question is whether it is necessary for this Court to call upon the plaintiff-respondent to make a proper verification of the plaint. I think it is not.

6. This suit is based on a promissory note and mot on the original transaction of loan. The execution of the promissory note is admitted by the defendant and his story of coercion or fraud has been rejected as untrue. The original verification of the plaint was correct and valid on the face of it. It was only in cross-examination, four years later, that he made some sort of admission that he had no personal knowledge of the business transactions of the plaintiff firm The defendant amended his written statement and added a plea based en improper verification of the plaint four years after the plaint was filed. But meanwhile the defendant had admitted the execution of the promissory note Therefore the admission of the mukhtar-i-am must be read along with that of the defendant in my opinion, any defect in the verification is cured by the defendant's own admission that he executed the note and it is not accessory for the court at this late stage to go through the farce of requiring the plaintiff to verify a fact which has been admitted by the defendant. I think the case is covered by Section 99 of the Code of Civil Procedure which provides:--

'No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.--No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceeding in the 'suit, not affecting the merits of the case or the jurisdiction of the Court.'

No other point was urged. The appeal isdismissed with costs.


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