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Jhumarmull Sethia Vs. Champalal Bothra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 4040 of 1958
Judge
Reported inAIR1960Cal61,63CWN832
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4 - Order 6, Rule 17 - Order 9, Rule 13
AppellantJhumarmull Sethia
RespondentChampalal Bothra
Appellant AdvocateManindranath Ghose, ;Janendra Coomer Datt and ;Sourindra Nath Rou Chowdhury, Advs.
Respondent AdvocateMahabir Prosad Chowdhury, Adv.
Cases ReferredDahyabhai Girdhardas v. Bobaji Dabyaji
Excerpt:
- .....can relate back to the date of the presentation of the petition. 2. admittedly there was an ex parte decree passed against the defendant opposite party, as far back as march 12, 1952. over six years after the passing of the ex parte decree, the defendant filed an application under order 9, rule 13 of the code of civil procedure praying that the ex parte decree be set aside. there was the usual pleading that the defendant was not aware of the filing of the suit and that summons had not been served on him and therefore he could not contest the suit. the petition and the vokalatnama, which was filed along with the petition, were not signed by the defendant himself but by his constituted attorney, in whose favour a power-of-attorney had been executed in pakistan. the aforesaid power was.....
Judgment:

B.N. Banerjee, J.

1. The question that calls for decision in this Rule is whether a petition and an accompanying Vokalatnama, initially signed by a person not legally authorised to sign for the defendant, can be validated by the signature of the defendant himself at a later stage of the proceeding and when so signed can relate back to the date of the presentation of the petition.

2. Admittedly there was an ex parte decree passed against the defendant opposite party, as far back as March 12, 1952. Over six years after the passing of the ex parte decree, the defendant filed an application under Order 9, Rule 13 of the Code of Civil Procedure praying that the ex parte decree be set aside. There was the usual pleading that the defendant was not aware of the filing of the suit and that summons had not been served on him and therefore he could not contest the suit. The petition and the Vokalatnama, which was filed along with the petition, were not signed by the defendant himself but by his constituted attorney, in whose favour a power-of-attorney had been executed in Pakistan. The aforesaid power was not authenticated before the Indian authorities and therefore was of no value in India. The signature on the petition and the Vokalatnama, therefore, cannot be treated as the signature of the defendant made by his authorised agent or constituted attorney.

3. When this matter came to the notice of the Court below, during the course of the hearing of the application under Order 9, Rule 13 of the Code of Civil Procedure, the Court below allowed the defendant to sign the petition and the Vokalatnama on September 30, 1958. The trial Court thereafter came to the conclusion that there had been no service of summons on the defendant and in that view of the matter set aside the ex parte decree and restored the suit. The order setting aside the decree is being contested in this Rule.

4. Mr. Manindranath Ghose, learned Advocatefor the plaintiff petitioner, contended before us that the Court below acted illegally in the exercise of its jurisdiction in not holding that the petition under Order 9, Rule 13 of the Code of Civil Procedure was no petition at all, because the petition and the Vokalatnama had not been initially signed either by the defendant or by his authorised agent.

5. In our opinion there is no substance in this contention. In a case reported in : AIR1953Bom28 , Dahyabhai Girdhardas v. Bobaji Dabyaji, Chagla, C. J. expressed the opinion that such a defect merely amounted to a formal defect. In that case a plaint was signed by the son of the plaintiff, who had no proper authority to sign it on behalf of the plaintiff. His Lordship held that the plaintiff can be allowed to amend the plaint, at a later stage, by himself signing irrespective of the bar of limitation.

6. We respectfully agree with the view expressed by Chagla, C. J, The observations made in respect of defectively signed plaints would also apply to petitions and Vakalatnamas as signed similarly.

7. In the view that we take in this matter we discharge this Rule but make no order as to costs.

B.K. Guha, J.

8. I agree.


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