TMI Blog1959 (9) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Objections having been taken by the defendant on the ground that the plaint was not properly signed or verified, the trial Court held on 9-4-51 that the plaint was not properly signed and verified on behalf of plaintiff No. 1 and ordered that the plaint should be properly signed and verified by someone authorized on behalf of plaintiff No. 1, either under Order 6, Rule 14, or under Order 29 Rule 1, C. P. C. In compliance with this order dated 9-4-51, S. B. Ghushey again signed the plaint and again verified it on 24-4-51 after filing a fresh power of attorney from plaintiff No. 1 dated 18-4-1951. 5. Against the order of the trial Court dated 9-4-51, holding that the plaint was not properly signed and verified on behalf of plaintiff No. 1, a revision application filed in the High Court (Civil Revision No. 395 of 1951) was decided on 18-1-1952. The High Court held that no question of jurisdiction was involved in the revision application as the trial Court undoubtedly had power to ask the party to rectify a defect in regard to signing and verification of the plaint. The High Court observed that the trial Court had not framed an issue on the point of limitation, and therefore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and as the cause of action accrued on 19-2-46, the suit was clearly barred by limitation as the period of limitation is admittedly three years, 7. The question of limitation, therefore, in-volves the following points : (1) Who has to sign the plaint, who has to verify it, and who has to present it? (2) If there are any defects or irregularities in regard to signing of the plaint or its verification, can these defects be removed on a subsequent date after the hearing of the suit has commenced? Can they be removed in appeal? If so, does the removal of the defect or irregularity relate back to the original date of presentation of the plaint? In other words, is the suit deemed to be instituted on the original date or on the date on which the defects or irregularities in regard to the signing etc. of the plaint are removed? (3) In regard to a private Limited Company which is converted into a public Limited Company before the date of the suit, can a person holding power of attorney of the former sign a plaint and verify it on behalf of the latter? (4) Would the decision of these questions depend on whether the plaintiff is a sole plaintiff or is one of several plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with such trade or business only, where no other agent is expressly authorized to make and do such appearances, applications and acts. Order 7 Rule 11 :-- The plaint shall be rejected in the following cases:-- (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued,..; (c) where the plaint is written upon paper insufficiently stamped.....; (d) where the suit appears from the statement in the plaint to be barred by any law. 10. Order 6, rule 14, requires that every pleading i.e. a plaint or a written statement, 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 may be signed by any person duly authorized by him Order 6 also contains provisions as to what a pleading should contain and should not contain; for instance, Order 6, rule 2 provides that pleadings should contain in a concise form a statement of all the material facts but should not state the evidence by which material facts are to be proved. Order 7, rule 1 enumerates some essential particulars to be stated in a plaint. 11. Order 6, Rule 14, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to procedure or whether a plaint which does not strictly comply with the requirements of Order 0 would cease to be a valid plaint and would be a nullity because of such defects or irregularities. It is true that when a plaint is presented to the Court or to such officer as the Court appoints, it is open to the Court or to the officer to point out the defects or irregularities to the person pressnt-ing the suit and to require him to rectify the defects or irregularities. But can it be said that the defects or irregularities would make tho presentation of the suit itself invalid although the plaint is admitted and particulars of the plaint are entered in a register of suits as provided by Order 4, rule 2? In this connection it is necessary to note that Order 7, rule 11, which refers to the rejection of a plaint, enumerates only four cases in which a plaint has to be rejected, hut it does not enu-merate any of the d fects or irregularities referred to in Order 6, Rules 14, Order 6, Rule 15, or Order 6, Rule 2. It is clear from the prevision contained in Order 6 that these rules relate only to procedure, and the better view would be to regard them as mere matters of procedure and to ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Born 85 : AIR 1936 Bom 418,. Ephrayim v. Turner, Morrison and Co. 32 Bom LR 1178 : AIR 1930 Bom 511 and 34 Bom LR 628 : AIR 1932 Bom 367 are in favour of the view that defects in regard to the signature, or verification or presentation of the plaint are mere irregularities of procedure. In ILR 1937 Bom 85: AIR 1936 Bom 418 it was held that the rule in Order 29, rule 1, Civil Procedure Code, regarding signature on the plaint is only a matter of procedure and that If the signature on the plaint or the verification of the pleading is defective, the defect can be cured at any subsequent lime. It was also held that the provisions contained in Order 29, rule 1, Civil Procedure Code, are clearly permissive and not imperative. Order 29, rule 1 is merely a rule of procedure and does not exclude the operation of Order 6, rule 14 and rule 15. In ILR 47 Bom 227 : AIR 1923 Bom 44 (1), where a power of attorney was defective, it was held that the decree should not be disturbed in appeal in spite of the defect. If such defects go to the root of the plaint and vitiate the plaint, there could be no suit and no decree. As the High Court refused to disturb the decree in spite of defec's in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n initiative or upon objection being taken by the defendant, to require the plaintiff io sign and verify the plaint, and if the plaintiff refuses to do so, the Court can refuse to take any further steps. But that does not mean that if the Court requires the plaintift to sign the plaint subsequently, the original plaint ceases to be a plaint. In ILR 22 All 55 (FB) it was held that the mere fact that the plaint is not signed by the plaintiff or by a person duly authorized by him will not make the plaint void and that a plaint does not cease fo he a plaint if it is unsigned or if the signature is defective, A similar view was taken in AIR 1941 Nag 159 : ILR 40 All 147 : AIR 1919 All 275 : ILR 34 All 57 : AIR 1931 All 507 (SB). ILR 54 Cal 380 : AIR 1927 Cal 376, Govindas v. Muthiah Chetty AIR 1925 Mad 660 : ILR 46 All 637 : AIR 1925 All 79, Ranjit Ram v. Katesar Nath ILR 18 All 396 and Educational Bonk Depot v. Rabindra Nath Tagore . The last three cases are cases of irregularity in regard to verification of the plaint. See also Qanavat Hussain v. Mt. Sajidunnisa Bibi , a case where a person holding a power of attorney signed and verilisd the plaint not in his own name but in the name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can sign the plaint. Under Order 29, Rule 1, in the case of Corporations the plaint can be signed by the Secretary or Director or other principal officer of the Corporation. In Calico Printers' Association, Ltd. v. Karim and Brothers ILR 55 Bom 151 : AIR 1930 Bom 566 after considering the Privy Council decision in Delhi and London Bank v. Oldham, 20 Ind App 139 (PC) it was held that either Order 29, rule 1, or Order 6, rule 14, can be applied to companies. See also ILR 1937 Bom 85 : AIR 1936 Bom 418. In the case of companies the plaint can be signed by either a Secretary or a Director or other principal Officer under order 29, rule 1, Civil Procedure Code, or any person duly authorized by the Company under Order 6, rule 14. The words duly authorized in Order 6, rule 14, need not be restricted to mean authorized by proper written authority Or by power of attorney. There is authority for this view in Bengal Jute Mills v. Jewraj Heeralal . In these cases it was held that a plaintiff can orally authorize another person to sign a plaint for him. The Managing Director of the plaintiff Company in the instant case, who has authority to tile suits on behalf of the Company (vide Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct for him. As already observed, it is the evidence of both plaintiff No. 2 and of Ghushey that plaintiff No. 2 as Managing Director of the Company (plaintiff No. 1) had orally authorized Ghushey to sign the plaint. 22. As regards the contention that when a private Limited Company is converted into a public Limited Company, the power of attorney executed by the former would not be valid after the conversion of the Company into a public Limited Company, this question need not be decided because both the powers of attorney of 1946 and 1951 do not bear the seal of the Company. However, there is no doubt that when under Section 154 of the Companies Act, a private Limited Company is converted into a public Limited Company the Company's identity is not changed, but only its nature. A private Limited Company can be converted into a public Limited Company by merely changing two or three Articles of its Articles of Association, the original Articles of Association continuing to be operative. A company can alter some of its Articles of Association. Such an alteration does not affect the identity of the company. 23. AS regards signature of the plaint, authorization by plaintiff No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiffs. If the plaint is not verified by a plaintiff or by any one of the plaintiffs, it can be verified only by a person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is true that there are several authorities in favour of the view that Omission to verify a pleading is a mere irregularity and that a pleading which is not verified as required by Order 6, rule 15, may be verified at any later stage of the suit, even after the expiry of the period of limitation. See 32 Bom LR 1178 : AIR 1930 Bom 511, ILR 46 All 637 : AIR 1925 All 79, ILR 54 All 57 : AIR 1931 All 507 (SB), ILR 55 Bom 151 : AIR 1930 Bom 566, and ILR 55 All 564 : AIR 1933 All 474. 26. In the instant case the objections raised by the defendant to the plaint merely related to the validity of the power of attorney in favour of Ghushey and consequent irregularities in regard to the signing and verification of the plaint. The objection that the plaint was not verified by a person acquainted with the facts of the case has not been urged by the learned counsel for the defendant respondent before us. But this point was considered by the lower Court which held that it cannot be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not amount to an amendment of the plaint. Even when a plaint is amended, the amendment relates back to the date of the suit except in some cases, e.g. where the amendment adds new parties or properties. See 34 Bom LR 628 : AIR 1932 Bom 367, Mohini Kumar v. Niaz Mohammad , Nallakumara v. Pappayi Ammal AIR 1945 Mad 219, Weldon v. Neal, (1887) 19 QBD 394 and Janardan Kishore Lal v. Sib Prasad Ram ILR 43 Cal 95 : AIR 1917 Cal 841. 28. Holding that it was only on 24-4-51 that the plaint was properly signed and verified, the trial Court held that the date of the filing of the suit must be taken to be 24-4-51. As already pointed out, the general consensus of authority of the Bombay High Court and other High Courts is in favour of the view that defects and irregularities in the matter of signing, verifying or presenting plaints are mere irregularities of procedure which do not make the suit ineffective, inoperative, or void. The existence of such defects does not mean that the suit had not been filed. Even when the plaint is amended after it is properly instituted, the amendment relates back to the date of the original plaint unless the amendment adds new parties or new properties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature or verification of the plaint. It is also open to a Court to sav that it provisionally allows an amendment of the plaint and that the question whether or not to allow the amendment of the plaint or its resigning or re-verification would be finally decided later. In such a case it is only the final order of the Court that has to be considered and not the provisional order. But once the amendment of the plaint is allowed, the question of limitation cannot be reserved. 31. In the instant case, the plaint is signed by one of the plaintiffs, which is quite sufficient in view of the decision of their Lordships ot the Privy Council in ILR 17 Cal 580. In regard to presentation Of the plaint, as already observed, the plaint need not be presented by plaintiff or sny person authorized by him. Presentation of the plaint by the pleader of one of the plaintiffs is quite proper. As regards verification ot the plaint, unfortunatrly, even today the plaint is not properly verified by one of the plaintiffs or by any person acquainted with the facts of the case. But this however is a matter of mere irregularity in regard to procedure and does r.ob make the suit filed on 18-2-49 detective. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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