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Subbiah Pillai Alias S.S.M. Subramania Pillai Vs. Sankarapandiam Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1948Mad369; (1948)1MLJ227
AppellantSubbiah Pillai Alias S.S.M. Subramania Pillai
RespondentSankarapandiam Pillai and ors.
Cases ReferredBasdeo v. John Smidt
Excerpt:
.....may not be required, in the light of the order which was made on the 22nd november, 1944, by which the third plaintiff was permitted to conduct all proceedings on behalf of the other two plaintiffs......the effect of the power of attorney and the correctness of the third plaintiff instituting the suit on behalf of himself and the other plaintiffs. that was presented on the 31st july, 1945, and subsequently it has been withdrawn and dismissed; but no point arises out of the dismissal.6. the suit was posted for trial before the learned additional subordinate judge on the 2nd august, 1945; it was known sometime previous to the 2nd august that the suit would be heard on that date. upon it being called on for trial, an application was presented by an advocate appearing on behalf of the first defendant asking for an adjournment until an order for stay of the suit could be obtained from the high court in respect of the civil revision petition. the learned additional subordinate judge,.....
Judgment:

Frederick William Gentle, C.J.

1. The three plaintiffs and the first defendant are first cousins, being grandsons of one Sankarapandiam Pillai; the plaintiffs are the sons of Subbasamia Pillai and the first defendant is the son of Narayanasamia Pillai, who were sons of the parties' grandfather. Sankarapandiam Pillai married a second time in 1915. Previously, there was an arrangement in the family regarding the division of the property belonging to it and Sankarapandiam Pillai took a one-third share. He died in 1923. A son by the second wife, Subbiah Pillai, died in 1925. The widow's death took place in 1943. The three plaintiffs claimed three shares, each one-fourth, in Sankarapandiam Pillai's property, agreeing that the first defendant was entitled to the remaining one-fourth share. The plaintiffs' claims were the subject-matter of the suit. It is unnecessary to refer to the second and third defendants.

2. After the pleadings were closed, issues were framed, the first issue being as follows:

Whether the suit is not maintainable for the reason that all the plaintiffs have not signed the plaint but the third plaintiff has signed under a power?

3. The third plaintiff held a power of attorney from his two brothers, the other two plaintiffs, and he alone signed the plaint. The defendant's contention, arising out of that circumstance, is the following : the power of attorney does not authorise the third plaintiff to institute suits on behalf of the other two plaintiffs; consequently the suit, instituted in the Court of the Subordinate Judge of Tuticorin, can be treated only as a suit by the third plaintiff and the sole relief to which he is entitled is a one fourth share in his grandfather's estate; the value of that share is such that the suit would fall within the jurisdiction of the Court of the District Munsiff of Tuticorin and not within the jurisdiction of the Subordinate Judge's Court; consequently that Court had no jurisdiction to entertain the suit.

4. The above issue was tried as a preliminary issue on the 18th July, 1945, when it was held that the power of attorney, although not happily worded, did include authority for the third plaintiff to institute suits for and on behalf of the other two plaintiffs and, consequently, the objection raised by the first defendant fell to the ground.

5. It is convenient to go back in the order of date and to refer to an application, I.A. No. 367 of 1944, filed by the plaintiffs at the same time as the presentation of the plaint in the suit on the 22nd November, 1944. In that application, it was alleged that the third plaintiff held a power of attorney from the first and second plaintiffs authorising him to conduct all proceedings on their behalf in the capacity of their agent. That application was granted. Later, on the 28th March, 1945, the plaintiffs instituted a further application praying that permission may be given to enable the first and second plaintiffs to ratify the proceedings taken by the third plaintiff on their behalf. In the affidavit supporting that application it is stated that the suit, in which the plaint is signed by the third plaintiff, is one instituted on behalf of all the plaintiffs and, in paragraph 8, an offer was made by the first and second plaintiffs to sign the plaint. That application came for disposal on the Same day as the trial of the preliminary issue on 18th July, 1945, and, in the light of the finding on the issue, the application was dismissed as being unnecessary. The first defendant presented a civil revision petition against the order recording the finding upon the effect of the power of attorney and the correctness of the third plaintiff instituting the suit on behalf of himself and the other plaintiffs. That was presented on the 31st July, 1945, and subsequently it has been withdrawn and dismissed; but no point arises out of the dismissal.

6. The suit was posted for trial before the learned Additional Subordinate Judge on the 2nd August, 1945; it was known sometime previous to the 2nd August that the suit would be heard on that date. Upon it being called on for trial, an application was presented by an advocate appearing on behalf of the first defendant asking for an adjournment until an order for stay of the suit could be obtained from the High Court in respect of the civil revision petition. The learned Additional Subordinate Judge, having heard the application, refused to accept it and it was dismissed. Thereupon the advocate appearing for the first defendant reported that he had no instructions and withdrew, and the suit was tried in his and his client's absence and a decree was passed in plaintiff's favour.

7. In the present appeal two points arise : (1) challenging the correctness of the learned Additional Subordinate Judge's dismissal of the application for adjournment and (2) against the finding on the preliminary issue relating to the effect of the power of attorney, that it authorised the third plaintiff to institute and conduct proceedings for and on behalf of the first and second plaintiffs.

8. In regard to the first point it was conceded that the first defendant was aware, some time before that the suit was posted for trial to the 2nd August, 1945, that that was the date upon which the hearing would take place, and that ordinarily the first defendant should have instructed his counsel to appear and to defend the suit; he also should have been present himself. It would seem that he pre-ferred to rely upon the result of the presentation of the civil revision petition to obtain the indulgence of the Court by the grant of an adjuornment. There was no reason whatever for his absence, save a deliberate intention to abstain from the Court when previously he had been apprised that the hearing would take place.

9. Refusal or grant of an application for adjournment is a matter of discretion, which discretion, of course, must judicially and properly be exercised. There is nothing here which warrants interference with the dismissal of the application by the learned Subordinate Judge. It was urged that the first defendant should be afforded an opportunity of presenting his case to the Court and a decision being obtained in light of the evidence and other matters sought to be put forward on behalf of the first defendant. That was well appreciated at the time when no step was taken in that behalf and what could have been done on 2nd August, 1945. No reason has been forthcoming to explain his failure to do so. In my view there is nothing justifying interference with the learned Additional Subordinate Judge's dismissal of the application for an adjournment. It follows that there is no occasion to remand the suit back to the trial Judge for re-hearing.

10. In regard to the second point. At the outset it has to be observed that it is devoid of any merits. At the highest there was a failure to follow the strict provisions of the Code of Civil Procedure. Order 6, Rule 14 provides that every pleading shall be signed by the party and his pleader if any, provided that, where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. That provision corresponds to the provisions of Section 578 of the Code of 1882.

11. In Mohinimohan Das v. Bungsi Budhah Saha Das I.L.R.(1889) Cal. 580 one of the three plaintiffs had not signed the plaint. In reference to that omission their Lordships of the Judicial Committee observed at page 582 of the report as follows:

In the first place it was said that the plaints were signed and verified by Mohini Mohan alone. But that is immaterial. There is no rule providing that a person named as a co-plaintiff is not to be treated as a plaintiff unless he signs and verifies the plaint.

12. Later at page 583 it is observed, further, that,

Their Lordships think that Khatter Mohun, as well as Gobind Rani became a party, as plaintiff, on the 2nd of November, 1883, and that the suits therefore are not barred by lapse of time.

13. Basdeo v. John Smidt2 is a decision to a like effect where it was held that a defect in the signature of the plaint or the absence of signature, where it appears that the suit was in fact filed with the knowledge and by the authority of the plaintiff named therein, may be cured by amendment at any stage of the suit and is not a ground for interference, in appeal. Those two decisions were given at the time when the Code of 1882 was in force. In Basdeo's case I.L.R.(1899) All. 55 reference is made to Section 578 of the old Code which corresponds to Section 99 of the Code of 1908. That section enacts that 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 proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. The result of the above decisions by the Judicial Committee and the High Court of Allahabad is that where a plaintiff has not signed a plaint, filed with his knowledge and consent, it is an omission which can be cured, and, indeed, should be corrected in the interests of justice. Regarding Order 6, Rule 14 of the Code, the commentary in the late Sir Dinshah Fardunji Mulla's work on the Code of Civil Procedure refers to the two cases cited above and then adds this:

If the defect is not discovered until the case comes on for hearing before an appellate Court, the appellate Court may order the amendment to be made in that Court. The appellate Court ought not to dismiss the suit or interfere with the decree of the lower Court merely because the plaint has not been signed. The omission to sign or verify a plaint is not such a defect as could affect the merits of a case or the jurisdiction of the Court.

14. With respect I subscribe fully to the observations in Sir Dinshah Fardunji Mulla's. book.

15. Considerable argument was addressed to us relating to the effect and extent of the authority given to the third plaintiff by the power of attorney issued to him by his two brothers. In the light of the conclusion at which I have arrived and the direction which will be given, it is unnecessary to consider whether the inter-pretation and construction placed upon the power by the learned Additional Sub-ordinate Judge were correct. The objection raised in respect of the absence of the signatures of the first and second plaintiffs is one of high technicality and devoid of all merits, and the curing of any defect, which there may be, comes within the provisions of Section 99 of the Code.

16. It may well be that the direction which I propose to give in a moment may not be required, in the light of the order which was made on the 22nd November, 1944, by which the third plaintiff was permitted to conduct all proceedings on behalf of the other two plaintiffs. It is unnecessary to consider whether that order should or should not have been made. It was made and it still stands not having been set aside or challenged. Nevertheless, it seems by way ex abundanti cautela, that the first and second plaintiffs should sign the plaint. There is abundant authority for this Court to give that direction and there will be an order for them to sign the plaint within one month and the amendment of the pleading will be carried out in the Court of the Subordinate Judge of Tuticorin. If this direction is not followed then the matter will be reported to this Court forthwith.

17. The result of the appeal is that it will be dismissed with costs.


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