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B. Sheshar Nath Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in44Ind.Cas.28
AppellantB. Sheshar Nath
RespondentEmperor
Cases ReferredCropper v. Smith
Excerpt:
.....and to reiterate these time-honoured principles, because in my short experience i have found from time to time a good deal of misconception and confusion of thought with regard to these matters in the procedure of inferior courts. the government advocate is probably right in saying that the parties have, for some reason best known to themselves, expended a great deal of unnecessary heat over this little suit. the defendant and his representatives are partly to blame for this unfortunate miscarriage by having raised the question in their plea, apparently because the plaintiff, who was a former employer of the defendant, had been sent to jail-if there was a good defence to the suit, it was superfluous. 20. i will merely add that it would in my opinion be better, as a general rule, where..........and to reiterate these time-honoured principles, because in my short experience i have found from time to time a good deal of misconception and confusion of thought with regard to these matters in the procedure of inferior courts. they cannot be impressed too strongly upon courts of justice. the suit is not before me and is, i understand, under appeal before the district judge of meerut, who has postponed the hearing pending these applications. it is to be observed, however, that although according to the munsif's judgment the defendant admitted his signature to the note so that the onus was upon him, the plaintiff gave evidence and the defendant did nothing but rely upon a discharged servant of the plaintiff. the munsif dismissed the suit on the merits. if he was right in so doing.....
Judgment:

Walsh, J.

1. These are two applications by Bisheshar Nath, High Court Vakil, practising at Ghaziabad, against an order of the Munsif of Ghaziabad, which was really a judgment in a civil suit, (a) directing him to show cause why he should not be committed to the Criminal Court under Section 476 of the Criminal Procedure Code and also (6) directing him to show cause why proceedings should not be taken against him under Section 14 of the Legal Practitioners Act.

2. The circumstances of the case are unusual, and it is to be hoped exceptional. I have had the advantage of reading an English translation of the entire pleadings, order-sheet, and evidence. A suit was brought in the Court of the Munsif by one Chajju Mal against Jasran upon a promissory note alleged to have been given by the defendant on the 31st of December 1913 for Rs. 150 with interest at Re. 1-4-0 per cent. per mensem. The claim was for Rs. 216-140 only. The plaint was filed about the 22nd December 1916, and the claim would, therefore, have been barred in a few days.

3. Paragraph 2 of the written statement alleged that the plaintiff was in jail, that the suit had not been presented on his behalf and that the permission of the jail authorities had not been given to the plaintiff's signature.

4. The following issue was framed:

1. Whether the suit was properly and duly filed on behalf of the plaintiff and is maintainable or not.

5. The Munsif describes it as the most...important issue in the case.

6. Bakhtawar Singh, brother-in-law of the plaintiff, was called and swore that he was asked by the plaintiff's wife, in consequence of a letter written by the plaintiff from jail, to file the suit, and he accordingly instructed the applicant, Bisheshar Nath. Hardwari Lal, the plaintiff's munim called by the defendant, attempted to identify the plaintiff's signature but he was not certain about it. A jailor was called by the defendant who contradicted the statement of Bakhtawar Singh that the plaint was signed by the plaintiff in the presence of the jail authorities, though he stated that, about the date in question, two or three people called to see Chajjoo Ram who was at work outside the jail, and the signature might have been obtained in the jailor's absence. The learned Munsif is incorrect in saying that the jailor swore no person had any interview with the plaintiff in the month of December.

7. These witnesses, whose evidence was recorded on the 14th February and the 13th April, are the only relevant ones upon the point as to the manner in which the plaintiff's signature was obtained.

8. On the 19th April the plaintiff himself was put into the box and was asked the question, 'who signed the plaint in this case?' After a highly technical discussion about the onus of proof, which I confess is beyond my comprehension, the question was disallowed. 8o that issue No. 1 was decided after the deliberate refusal to hear the evidence of the principal person concerned who was in a position to speak to it. To talk of forgery under such circumstances is of course out of the question.

9. I will assume that the plaintiff's signature was appended so as to constitute a breach of the jail regulations. I will assume further, though it is by no means proved, that he did not write it himself, although he had authorized the suit, and that although he might have authorised some one to sign his own name, he was prepared, or badly advised, under a mistaken fear of the consequences of telling the truth, to commit perjury by swearing that a signature written by some one for him was written by himself. There is not, so far as I pan see, in the absence of a repudiation of his signature by the plaintiff himself, a scrap of evidence of forgery, and not a shadow of a suggestion in the evidence that the present applicant knew it was forged.

10. The learned Munsif appears to have felt the difficulty himself. He says the signatures of the plaintiff to the plaint and takalatnama were 'most probably forged.' He further concludes that the applicant was guilty of gross negligence in not concluding that there had been a breach of the jail regulations. It is impossible to reconcile this finding with the ultimate conclusion that the applicant produced two documents in Court which he either knew or had reason to believe were forged. Without considering whether the Munsif had jurisdiction to deal with any disciplinary question under the Legal Practitioners Act, or whether the occasion was one in which, in any event, he ought to have exercised the power given by Section 476 of the Criminal Procedure Code, I hold that on the evidence before him the course which the Munsif took with the Vakil, the present applicant, had no foundation in fact and was an unwarrantable abuse of his power, and an irregular exercise of jurisdiction.

11. As, however, the judgment in this case raises several points of practical importance and the whole proceedings evidence a lamentable waste of judicial time, and a fruitless expenditure of costs, all of which apparently will fall upon one or another of these two unfortunate litigants, I think it desirable to deal with the other points raised.

12. The Munsif has entered into a learned and exhaustive examination of the Jail Manual and Regulations. These are wholly irrelevant. He says they have the force of law. This does not mean that they alter the general law. A plaint signed, or a suit authorised, by a man in jail is just as good as any other plaint or suit, however many jail regulations are broken. The breach of regulations, whether by the prisoner his friends or Pleader, are matters for the jail authorities or the Local Government or whoever has the duty of enforcing them or punishing their breach. They no doubt have the force of law but they cannot destroy a cause of action, or invalidate a plaint. The second part of the second plea in the written statement which raised this point ought to have been struck out and no issue should have been framed thereon.

13. Order VI, Rule 14, which requires a pleading to be signed by a party is merely a matter of procedure. It is the business of the Court to see that this provision is carried out. It is also the business of the Court to see that a suit is authorized by the plaintiff. Of course if it is not, the suit ought to be dismissed, and the persons responsible for it made to answer for their conduct. The authority for the bringing of a suit is a question of principle. But where a suit is duly authorised, the proper signing of the plaint is a matter or practice only and if a mistake or omission has been made it may be amended at any time. Sections 151 and 153, which the Courts below seem too often to ignore, were plainly intended for such oases. And the latter part of Order VI Rule 14, enabling a person duly authorised by the party, when the party is unable to sign the pleading himself, to sign for him, makes this clear. In the present case I see no reason why Bakhtawar Singh could not have signed for the plaintiff. I delivered a judgment recently myself upon this very point where I endeavoured to make it clear. But there is abundant authority if any were required for such an obvious proposition. Basdeo v. John Smidt 22 A. 55 : A.W.N. (1899) 172 : 9 Ind. Dec. (N.S.) 1068 decided it in this Court many years ago.

14. But the most unfortunate incident of the whole case is the proceeding of the 19th April when the plaintiff presented himself in the box, and the Munsif disallowed a most obvious, necessary and proper question. Why the Munsif did not then realise the position, and put an end to further waste of time and invite the plaintiff to sign the plaint and vakalatnama then and there, I am at a loss to understand. The fact that a fresh suit would probably be barred by limitation would seem an additional reason for doing so.

15. I have not thought it necessary to discuss the. high technicalities about the attestation of the vakalatnama. All defects might and ought to have been cured by the exercise of a little common sense, and may, in my opinion, still be cured if the suit is remanded or the Court which hears the suit in appeal does what the Munsif might and ought to have done vide Rajit Ram v. Katesar Nath 18 A. 396 : A.W.N. (1896) 102 : 8 Ind. Dec (N.S.) 971.

16. It cannot be impressed too often upon the inferior Courts that as Bowen, L.J., said in Cropper v. Smith (1884) 26 Ch. D. 710 : 53 L.J. Ch. 891 : 51 L.T. 733 : 33 W.R. 60:

The object of Courts is to decide the rights of parties, and not to punish them for mistakes which they make in the conduct of their cases, by deciding otherwise than in accordance with their rights. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy.

17. Of course where it is sought to abuse the process of the Court, or to overreach the other party by some fraud, it is another matter.

18. I have thought it necessary to refer to some of the broader questions raised by this case, and to reiterate these time-honoured principles, because in my short experience I have found from time to time a good deal of misconception and confusion of thought with regard to these matters in the procedure of inferior Courts. They cannot be impressed too strongly upon Courts of Justice. The suit is not before me and is, I understand, under appeal before the District Judge of Meerut, who has postponed the hearing pending these applications. It is to be observed, however, that although according to the Munsif's judgment the defendant admitted his signature to the note so that the onus was upon him, the plaintiff gave evidence and the defendant did nothing but rely upon a discharged servant of the plaintiff. The Munsif dismissed the suit on the merits. If he was right in so doing there was the less reason for this elaborate expenditure of time and money over a trivial matter of Rs. 200.

19. The appellant alleges that there have been ' private and personal differences between himself and the Judge. Except that his judgment is under review, the Munsif is not before me. I have not heard what he has to say and I will merely content myself by saying that if there has been any thing of the kind, the Munsif and the' Vakil should lose no time in healing the sore and making friends. Both are members of the same profession, and where ill-feeling prevails work is certain to suffer. The Government Advocate is probably right in saying that the parties have, for some reason best known to themselves, expended a great deal of unnecessary heat over this little suit. The defendant and his representatives are partly to blame for this unfortunate miscarriage by having raised the question in their plea, apparently because the plaintiff, who was a former employer of the defendant, had been sent to jail-If there was a good defence to the suit, it was superfluous. If there was no defence, it was irrelevant to any question unless the suit had not been authorised by the plaintiff. This, which is the sole question of importance, has not been decided at all.

20. I will merely add that it would in my opinion be better, as a general rule, where the Court has reason to think that there has been any breach of professional etiquette or any matter calling for the exercise of disciplinary powers, in the conduct of the Pleader or Advocate in the case, to decide the merits, and reserve any such question for further consideration after the disposal of the suit. If there were no other reason for this course, and there are several in my judgment, it is in any case not a matter which concerns the parties or one in respect of which they ought to be penalised either by prolonging the suit or increasing the costs. This case seems to have occupied the time of the Court on six days, including the framing of the issues and the delivery of judgment, and lasted for more than six months. I direct the order of the Munsif so far as it affects the applicant, to be cancelled.


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