Allowed

Amod Kumar Das v. Renu Kumar Das and Anr.

Patna HC10 Sept 2013CWJC/8663/2013

Case brief

AI extract

What is this about?

This writ application challenged an order dismissing a title suit as incompetent because the Power of Attorney was not filed with the plaint. The High Court held that the signing irregularity was procedural and remedied when the petitioner later signed the plaint, thus setting aside the dismissal.

What did the court decide?

The impugned order dated 25.05.2009 dismissing the Title Suit is set aside, and the suit is to proceed.

Amod Kumar Das Vs Renu Kumar Das and Anr. — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8663 of 2013

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C.R. 1434 of 2009

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Amod Kumar Das son of Shri Bisheshwar Lal Das, resident of villageChilauni, Sukha Narayan Tola-Terhamorh, P.S. Chilouni, P.O. Pratapganj, District Supaul, through his power of Attorney Holder dated 12.05.2003, Shri Awadhesh Kumar Das son of Late Bisheshwar Lal Das R/o thehra More, Chilauni P.S. Pratapganj, District-Supaul.

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.... Plaintiff.... Petitioner

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Versus

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Renu Kumar Das son of Shri Jainandan Lal Das, resident of villageChilauni, Sukha Nagar Tola, Terhamorh, P.S. Chilouni, P.O. Pratapganj, District Supaul, presently resident of village-Kasba, P.S. Kasba, District-Purnea

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Hari Shankar Arun son of Ramesh Lal Das, resident of villageChilauni, Sukha Nagar, P.S. Pratapganj, District-Supaul. .... Defendants .... Respondents

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====================================================== Appearance :

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For the Petitioners : Mr. Shashi Shekhar Dwivedi, Sr. Advocate Mr. Ranjan Kumar Dubey

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For the Respondents : Mr. Dronacharya

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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4 10-09-2013 1. An order dated 25.05.2009 passed by learned Munsif,

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Birpur at Supaul in Title Suit No. 20 of 2000, holding the said suit not to be maintainable on the ground that it was incompetent from its very inception, inasmuch as the suit was filed by a person who

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was not duly authorized by the plaintiff; is impugned in the

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present application under Article 227 of the Constitution of India.

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I have heard Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing on behalf of the petitioner and Mr. Dronacharya learned counsel appearing on behalf of the respondents at length.

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Patna High Court CWJC No.8663 of 2013 (4) dt.10-09-2013 P2/9

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The facts relevant for adjudication of the present application which are not in dispute are as under:-

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The Title Suit No. 20 of 2000 was filed in the name of the petitioner in the Court of learned Munsif Birpur, Supaul, through one Raj Kumar Das claiming to be holder of Power of Attorney given by the petitioner. In the suit, the plaintiff sought for a decree for specific performance of contract of sale on the basis of an agreement to this effect dated 15.11.1999. The said suit was admitted. Issues were framed and the evidence started. At that stage, the respondents, who are defendants before the Court below, filed an application in said Title Suit No. 20 of 2000, contending that the suit was unauthorised and was not maintainable as Power of Attorney had not been filed alongwith the plaint.

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This is not in dispute that by an order dated 02.03.2005 passed by the Court below, the petitioner was allowed to make his signature on the plaint.

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The application dated 22.02.2005 was finally heard. In course of hearing it was contended by the petitioner before the Court below that Power of Attorney had been executed by the petitioner in favour of Raj Kumar Das, his brother, to look after his property as well as to look after the litigation. The petitioner

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took a plea that plaint had been signed by said Raj Kumar Das under his authority and instruction and that even if, it was assumed to be an irregularity, the same stood rectified after the petitioner had put his signature on the plaint under the orders of the Court. The Court below however, allowed the said application dated 22.02.2005 by the impugned order on the sole ground that at the time of filing of suit, no Power of Attorney was filed and, therefore, the suit itself was incompetent from its very inception.

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Mr. S.S. Dwivedi, learned senior counsel appearing on behalf of the petitioner while assailing the impugned order has submitted that Order VI Rule 14 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) requires that every pleading shall be signed by the party and his pleader (if any), and in an event where a party is unable to sign pleading by reason of absence or for other good cause, it may be signed by any person duly authorised by him to sign such pleading. He submits that though Power of Attorney could not be filed at the time of filing of the suit but the same was subsequently brought on record before the Court below. In any event, he submits, that after the petitioner put his signature on the plaint under the orders of the Court, irregularity if any, stood rectified. He further submits that the requirement of putting signature on the plaint by a party under

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Patna High Court CWJC No.8663 of 2013 (4) dt.10-09-2013 P4/9

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Order VI Rule 15 is merely procedural in nature and the Court below ought not to have dismissed the suit itself on such ground, particularly as such defect was subsequently removed by the petitioner by putting his own signature on the plaint. He has placed reliance upon a judgment of this Court reported in A.I.R. 1928 Patna 51 (Johnston and others V. Rameshwar Singh Bahadur) as well as A.I.R. 1925 Lahore 144 (Ali Ahmad V. Abdul Ghani and others).

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Mr. Dwivedi has submitted that the petitioner was serving in Indian Army and as such he had authorized his brother Raj Kumar Das by way of a Power of Attorney which is Annexure-1 to the present application and Title Suit No. 20 of 2000 was filed by him through said Raj Kumar Das and the Power of Attorney holder, namely, Raj Kumar Das had put his signature on the plaint and verification under his instructions.

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Mr. Dronacharya, learned counsel appearing on behalf of the Respondents on the other hand has submitted that the Court below rightly dismissed the suit as it was found to be incompetent from the date of its inception as the plaint was not signed by the petitioner and also because no Power of Attorney was filed alongwith the plaint. He has drawn my attention to Annexure-1 of the writ petition which according to the petitioner, was the Power

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Patna High Court CWJC No.8663 of 2013 (4) dt.10-09-2013 P5/9

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of Attorney executed by the petitioner in favour of Raj Kumar Das to submit that said Raj Kumar Das was not authorised under the said Power of Attorney to institute a suit for specific performance of contract i.e. for the purpose of future purchase of a property. He submits that by the said Power of Attorney, Raj Kumar Das was authorised to look after the properties of the petitioner and to deal with such property owned by the petitioner. He submits that a Power of Attorney is to be strictly construed and it cannot be said, on the basis of strict construction of the said Power of Attorney that Raj Kumar Das had the authority to file the suit. Accordingly, the suit could not be said to be maintainable and the Court below rightly dismissed the suit by the impugned order. He has supported his submission that a Power of Attorney has to be strictly construed, by placing reliance upon a judgment of Supreme Court reported in A.I.R. 1979(2) SCC 601 (Syed Abdul Khader V. Rami Reddy and Ors.).

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There is no denial of the fact that the petitioner, while on leave from service, put his signature on the plaint as well as on verification under orders of the Court. He took a plea before the Court below that said Raj Kumar Das, the Power of Attorney holder, was instructed by him to file the suit. This Court, in case of (Johnston and others V. Rameshwar Singh Bahadur) (supra)

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Patna High Court CWJC No.8663 of 2013 (4) dt.10-09-2013 P6/9

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had occasion to consider the provisions of Order VI Rule 14 of ‘the Code’. This Court held in the said judgment that signing of the plaint was merely a matter of procedure and any defect therein was remediable at any stage of the litigation even in the Appellate Court because omission to sign or verify a plaint was not such a defect as could effect the merits of the case. Relevant portion of the said judgment is being quoted hereinbelow:-

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“Rule 14, O. 6 requires that every pleadings should be signed by the party and his pleader in the manner laid down therein. But unlike the old Code the present Code does not provide for the course to be adopted by the Court in case the plaint is not properly signed. Even under the old Code the signing of the plaint was held to be merely a matter of procedure and any defect therein was remediable at any stage of the litigation even in the appellate Court, the reason being that the omission to sign or verify a plaint was not such a defect as could affect the merits of the case and can be remedied under S. 99 of the Code vide Basdeo v. John Smidt (1) Mohini Mohun Das. V. Bungsi Buddan Saha Das (2), Ma Ngwe Kin v. Ma Hme (3) and Bisheshar Nath v. Emperor (4).”

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Further, in case of Ali Ahmad V. Abdul Ghani and others (supra) reliance upon which has been placed by learned senior counsel for the petitioner, the Lahore High Court held thus:-

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“I am asked to take action on the revision side because the Court below has allowed the plaintiff to sign the plaint long after presentation.

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The decision does not affect the merits except in the matter of limitation but as it is quite clear that the plaint was signed by a third person on instructions from the real and ostensible plaintiff I am not prepared to hold that the plaint was not signed by a duly authorised person though his authority may have been objectionable from the point of view of the fisc.

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Dismissed with costs.”

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The main emphasis of the submission made on behalf of the Respondents by Mr. Dronacharya, learned counsel for the Respondents, is that even if it is assumed that said Raj Kumar Das held the Power of Attorney as contained in Annexure-1, the said Power of Attorney did not authorize him to file the suit as on plain reading of the said Power of Attorney it would appear that no such authority was given by the petitioner to him.

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I am of the view that the petitioner has not disputed the fact that the suit was filed on his instructions, by Raj Kumar Das. It is specific case of the petitioner that said Raj Kumar Das signed the plaint and verification on his instructions. In such circumstances, I am in agreement with the submission made by learned senior counsel appearing on behalf of the petitioner that even if it was assumed that there was an irregularity in signing the

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plaint or verification, such irregularity could not be treated to be such that on the basis of the same the suit itself could be dismissed. He is right in his submission that such irregularity, if any was remediable and it stood rectified after the petitioner put his signature on the plaint and verification. This view finds support from the judgments of the Court in case of Johnston & others V. Rameshwar Singh Bahadur (supra) as well as of Lahore High Court in case of Ali Ahmad Vs. Abdul Ghani & Ors. (supra).

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Reliance has been placed on behalf of the respondents on Supreme Court judgment reported in 1979(2) SCC 601 (supra) is of no avail in the facts and circumstances of the case. Learned counsel may be right in his submission that a Power of Attorney needs to be strictly construed. I am of the view that even if the plaint verification was signed by a person who did not have the authority to sign it, it can be said to be an irregularity under Order VI Rule 14 of ‘the Code’. Such irregularity was remediable and stood rectified after the petitioner put his signature on the plaint and verification.

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I am of the opinion thus, that the suit could not have been dismissed by the Court below in the facts and circumstances of the case by the impugned order as held by this Court in case of Johnston & others V. Rameshwar Singh Bahadur (supra) as the

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Patna High Court CWJC No.8663 of 2013 (4) dt.10-09-2013 P9/9

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omission to sign or verify a plaint was not such a defect as could effect the merits of the case.

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The impugned order dated 25.05.2009 passed in T.S. No. 20 of 2000 by learned Munsif, Benipur at Supaul is set aside. The Court below shall proceed with the Title Suit from the stage as was existing on the date of the impugned order dated 25.05.2009.

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This application is accordingly allowed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Amod Kumar Das v. Renu Kumar Das and Anr.

Case brief

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Amod Kumar Das v. Renu Kumar Das and Anr.

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