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Chandr Kanta Hazra Vs. Rajani Kanta Das and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in164Ind.Cas.442
AppellantChandr Kanta Hazra
RespondentRajani Kanta Das and ors.
Cases ReferredRadha Kishen v. Khurshed Hussain
Excerpt:
civil procedure code (act v of 1908), sections 26, 115, order iv, rules 1, 4 - suit, when begins--plaint filed by pleader accepting vakalatnama which is not signed by party--whether proper presentation--party, tampering with record and correcting defect without knowledge of court--effect of--condonation of defect--effect of rules 1 and 4 of order iv--necessity of written authority to pleader--lower appellate. court deciding question of limitation wrongly--interference in. revision, whether proper. - .....note, valued at rs. 600, which includes the principal lent and the interest due at the date of the suit. the plaint was filed in court on june 13, 1933, and if it was properly presented on that date it was within time, but there was a defect in the presentation of the plaint and how far the said defect is fatal to the plaintiff's claim was the controversy between the parties in the courts below and is the controversy before me.3. the plaint was filed by a pleader, but it was accompanied by a printed form of a vakalatnama which the plaintiff had not signed. the filing pleader signed his acceptance on the back of the vakalatnama. on or shortly after march 20,1934, somebody on the plaintiff's behalf discovered that the vakalatnama on the record was one which had not been signed by the.....
Judgment:
ORDER

R.C. Mitter, J.

1. This Rule has been obtained by the plaintiff whose suit has been dismissed on appeal by the learned Additional District Judge of the Twenty-four parganas. The learned Munsif of Diamond Harbour decreed the same but the learned Additional Judge has held that it is barred by time.

2. It is alleged by the plaintiff that the defendants borrowed Rs. 200, from him on July 21, 1930, and that on the same date they executed a promissory note in his favour. The suit is on this promissory note, valued at Rs. 600, which includes the principal lent and the interest due at the date of the suit. The plaint was filed in Court on June 13, 1933, and if it was properly presented on that date it was within time, but there was a defect in the presentation of the plaint and how far the said defect is fatal to the plaintiff's claim was the controversy between the parties in the Courts below and is the controversy before me.

3. The plaint was filed by a Pleader, but it was accompanied by a printed form of a vakalatnama which the plaintiff had not signed. The filing Pleader signed his acceptance on the back of the vakalatnama. On or shortly after March 20,1934, somebody on the plaintiff's behalf discovered that the vakalatnama on the record was one which had not been signed by the plaintiff and between that date and May 3, 1934, the records were tampered with, as is the finding of both the Courts below, and the plaintiff's signature on the vakalatnama was put in surreptitiously. On the discovery of the said defect the Court was not apprised of it, nor application was made to the Court praying for the supply (?) of the defect, but the plaintiff took the reprehensible course of working underground and when the tampering was detected, pursued the equally reprehensible course by seeking to maintain by evidence, which has been found to be perjured, the position that the signature of the plaintiff was on the vakalatnama from the beginning.

4. The Court of first instance overruling the defence found that the loan had in fact been taken, by the defendants and that the promissory note was a genuine one. Dealing with the question raised by the defendants that the suit must be taken to be instituted on or after March 20, 1934, when the plaintiff put his signature on the vakalatnama, and not on June 13, 1933, and so barred by limitation, the trying Court held that the Pleader had in fact authority from the plaintiff to file the suit, that the omission to sign the vakalatnama in time was obviously an oversight and that the signing of the vakalatnama at a subsequent stage had cured the defect. It held accordingly that the suit was not barred by time, and for supporting its judgment the said Court relied upon the case of Khaira v. Nathu, 55 Ind. Cas. 990 55 Ind. Cas. 990 : AIR 1920 Lah. 212 : 2 UPLR (L) 88 and Chhayarnannessa v. Basiran 37 C 399 : 5 Ind. Cas. 532 : 11 CLJ 285. The learned Additional District Judge has held that Chhayamannessa's case 37 C 399 : 5 Ind. Cas. 532 : 11 CLJ 285, is distinguishable, that suit must be taken to be filed after March 20, 1934, and was barred by limitation. He accordingly dismissed the suit.

5. Mr. Chakravarty, who has appeared in support of the Rule, has contended before me that (1) as soon as the vakalatnama was signed by the plaintiff, the defect in the presentation of the plaint was cured, and the date of the institution of the suit must be taken to be June 13, 1933; and (2) that the amendment of Order III, Rule 1, by the omission of the words ''duly appointed to act' makes the presentation of a plaint by a Pleader authorised orally to be a valid presentation and that Order III, Rule 4, is only a mandate to a Pleader and its breach or non-observance is a matter between the Pleader and the Court, which may subject the Pleader to disciplinary action, but cannot operate to affect his authority to represent his client. On these grounds he contends that the point of limitation has been wrongly decided by the learned Additional District Judge. In my judgment there is considerable difficulty in the plaintiff's obtaining relief in revision. Apart from the reprehensible course of conduct which he had chosen to adopt, which would make a Court of Revision reluctant to exercise its discretion in his favour, there are many other obstacles in his way. If the question of limitation has been wrongly decided by the lower Appellate Court, it has considered and wrongly decided it. Section 115 of the Code of Civil Procedure would not in such cases give me the authority to interfere : Ram Gopal v. Jaharmull Khemka 39 C 473 : 15 Ind. Cas. 547 and Mahim Chandra v. Ahmad Ali 22 CLJ 564 : 33 Ind. Cas. 346 : AIR 1916 Cal 907. But I do not wish to rest my decision on this ground alone, as in my judgment the decree made by the lower Appellate Court has got a broader foundation to rest upon.

6. To support these respective contentions 'the learned Advocates for the parties have, besides referring to the relevant provisions of the Civil Procedure Code, cited before me a number of cases. For the petitioner reference has been made to the cases of Khaira v. Nathu, 55 Ind. Cas. 990 55 Ind. Cas. 990 : AIR 1920 Lah. 212 : 2 UPLR (L) 88, Muhammad Jaffar v. Sheikh Ahmad : AIR1926Bom336 , Banwari Rai v. Chethu Lal, 74 Ind. Cas. 1033 74 Ind. Cas. 1033 : AIR 1924 Pat. 114 : 2 Pat LR 174 and Dattu v. Bhan Singh, 88 Ind. Cas. 235 88 Ind. Cas. 235 : AIR 1926 Nag. 40, and for the opposite parties to Sri Chandan Bhuiya v. Haroo Seth 13 CLJ 544 : 11 Ind. Cas. 387 and Sheikh Palat v. Sarwan Shahu, 55 Ind. Cas. 271 55 Ind. Cas. 271 : AIR 1920 Pat. 581. It would not be profitable to examine these cases as in none of them the matter has been discussed with any degree of fulness. Some of them lay down the governing rule without any attempt to support it by any reason.

7. As the Code of Civil Procedure stands, a suit begins by the presentation of a plaint. No other mode for instituting a suit has up to now been prescribed (s. 26). The plaint has to be presented by somebody by the plaintiff appearing in person or somebody on his behalf. In the case before me the presentation was by a Pleader with, I will assume, an oral authority from the plaintiff to present the plaint. He had admittedly no written authority on June 13, 1933, because on that date when he presented the plaint he had accepted a printed form of a rakalatnama executed by none. In my judgment if the presentation of a plaint is an irregular presentation, the matter can be regularised in one manner and one only, namely, by an order of condonation passed by the Court. The plaintiff has to make an application pointing out the defect, giving the reasons as to why the defect crept in and asking the Court to allow him to remedy it. If the Court grants his application the plaint must be taken to be presented duly on the date it was in fact presented: Chhayamannessa v. Basiran 37 C 399 : 5 Ind. Cas. 532 : 11 CLJ 285. If the Court refuses the application, the plaint has to be taken off the file. But certainly a party will not be allowed to urge that he himself has put the thing in order by altering or correcting the record himself without reference to the Court.

8. Dr. Mukherjee on behalf of the opposite parties has contended before me that there was in the eye of law no presentation of the plaint on June 13, 1933. I do not think it would be necessary to go to that length in the present case, for if I hold that there was an irregular presentation of the plaint on that date, on the principles I have formulated above, the plaintiff is out of Court, and the proper order of the Court should have been to order the plaint off the. file, unless the Court thought fit to allow the defect to be corrected and to condone the irregularity. It is not a right procedure to allow the defect to remain, and to throw out the suit on the ground that it was barred by limitation on the date when the plaintiff by adopting questionable means himself cures what is considered to be a defect.

9. The important question, therefore, is whether in the circumstances of the case there was an irregular presentation of the plaint on June 13, 1933. I hold that at the least it was.

10. Order III, Rule 1 of the Code empowers an authorised agent or Pleader to do what a party can do. The words ''duly appointed to act' has been removed by the amendment of 1926, and the words 'appearing, applying', etc., have been, substituted for them. But by the same Amending Act 1926, the language of Order Ill, Rule 4 has undergone material alteration. Reading the two rules together my view is that the legislature, acting on principles of public policy, has deliberately enacted that a written statement filed in Court can be taken as the only proof of a Pleader's authority to act for a person. A Court must know for certain what particular lawyer represents a particular party to a suit, and up to what point of time. This is necessary for the proper progress of a suit. Occasions are not rare when the presiding Judge has to send for the Pleaders on dates other than dates fixed for the case, Ministerial Officers of the Court have also occasions to ask for assistance of the Pleaders. The opponent must also know who is the lawyer that represents the other side at a particular point of time, in order to enable him to serve notices of applications and affidavits. For regulating the relations of a party and his lawyer, and for the purpose of determining the rights and obligations of a party acting through a Pleader with his opponent, not only the fact of delegation of authority to his Pleader, but the terms of the delegation must appear: in a durable form and must not be allowed to rest in oral communications between a man and his Pleader. The legislature has, therefore, though it fit to enact that the mode of proof of these matters should be the best under the circumstances. It has accordingly enacted that the power should be in writing and filed in Court, and that when authority is withdrawn from a Pleader, that fact must appear on the records of the case. I accordingly hold that the fact of the authority of a Pleader to act on behalf of a particular person can be brought to the notice of a Court in one manner and one manner only, e. g. by showing a written authority filed in Court. On the principle formulated by Lord Blackburn in Lord Advocate v. Lord Lovat (1880) 5 AC 279, and Sir Lawrence Jenkins in Radha Kishen v. Khurshed Hussain 47 IA 11 at p 16 : 55 Ind. Cas. 959 : AIR 1920 PC 81 : 47 C 662 : 18 ALJ 401 : (1920) MWN 308 : 38 MLJ 424 : 11 LW 518 : 22 Bom.LR 557 : 28 MLT 425 : 25 CWN 417 (PC), that 'of things which do not appear and things which do not exist the reckoning in a Court of Law is the same,' de non apparentibus et de non existentibus eadem est ratio, I hold that as the authority if the plaintiff's Pleader could not be in the case before me brought to the notice of the Court except through the medium of a written power from the plaintiff, which did not exist at all on June 13, 1933, it must be taken in a Court of Law that the Pleader of the plaintiff had no authority whatsoever to represent the plaintiff on June 13,1933, and to file the plaint. The plaint was, therefore, put in an irregular manner and in as much the irregularity has not been condoned by the Court of first instance, the plaintiff cannot succeed.

11. An application to Court for permission to put the record in order, which he never made during the progress of the suit in the two Courts below, would now come with a bad grace from the plaintiff and would certainly be not entertained seeing that he not only tampered with the record but also sought to support a false Case relating to the vakalatnama with perjured evidence.

12. The Rule is accordingly discharged with costs; hearing fee 2 gold mohurs.


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