TMI Blog1899 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... agent of the plaintiffs within the meaning of Section 37 of the Code, so that the point considered in Maharanee Surnomoye v. Poolin Behary Mundal (1878) 3 C.L.R. 15, and Roy Dhunptut Singh v. Jhoomuk Khawas (1879) 3 C.L.R. 579, does not arise. There is on the record no power of attorney authorizing Mr. Sanders to sign the plaint on behalf of the plaintiffs, and there is nothing which otherwise shows that he was so authorized within the meaning of Section 51. The most probable reason why there is nothing of the kind on the record is that, until the point was raised for the first time in second appeal, the defendant appears never to have thought of suggesting that Mr. Sanders was not authorized to sign the plaint, or that there was any sort of defect or irregularity in the institution of the suit. There is no such suggestion in the defendant's written statement, in the issues, the judgments of the Courts below, the defendant's memorandum of appeal in the Lower Appellate Court, or his memorandum of appeal to this Court. Now, in the first place, as I have said already, the plaint is signed and was filed by an advocate of this Court, who thus claimed to represent the plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de shows that a suit is instituted by presenting a plaint to the Court or to the proper officer. The Code contains no definition of a plaint, but Section 50 shows what a plaint substantially is, and states the various particulars which it must contain. It says nothing about signature, and in no way suggests that what it describes as a plaint is not a plaint if it is unsigned or if the signature is in any way defective. Section 51 deals with the signature and verification of the plaint. It places the signature and the verification on exactly the same footing. In that connection I observe that at page 400 of the report in Rajit Ram v. Katesar Nath, the Full Bench of this Court observed:-- It would be difficult to imagine any case in which a defective verification of a plaint could affect the merits of the case or the jurisdiction of the Court. There is nothing whatever in Section 51 to suggest that, if its terms are not complied with, the defect stands on any different footing from the other defects mentioned in Section 53 (b), or involves any other consequence than rejection of the plaint if not amended in accordance with an order for amendment, or that the defect cannot be waived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r allowing the amendment, that such a plaint has to be rejected under Section 54(d). The doctrine that the plaint is waste paper because it is not duly signed in accordance with Section 51 of the Code, and that there is consequently no legal suit before the Court, is opposed to the judgments of this Court in three connected unreported oases, First Appeals Nos. 170, 126 and 29 of 1895, in which the plaint was, at the stage of first appeal, returned for amendment under Section 53, on the ground that the person who had signed it was not duly authorized in that behalf by his power of attorney. In these cases the objection was taken by the defendant in his memorandum of appeal; and, in two at least out of the three, was specifically pleaded by him and put in issue in the Court below. The doctrine that a plaint not duly signed is necessarily waste paper also appears to me to be opposed to the judgment of the Privy Council in Mohini Mohan Das v. Bangsi Baddan Saha Das ILR (1889) Cal. 580. In that case there were three plaintiffs named in the plaint as joint creditors. Only one of them signed and verified the plaint. Some time after the plaint was filed, the Court made an order adding anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with Section 51, or whether he so held on the ground that there was no valid authority given by the plaintiff for the institution of the suit. My doubt arises from the learned Judge's allusion to the case of Badri Prasad v. Bhagwati Dhar ILR (1894) All. 240, which has nothing to do with the signing of the plaint, but relates only to the conditions under which a suit or appeal may be filed under a vakalatnamah. The case of Katesar Nath v. Aggyan was a decision of a single Judge of this Court, and if it means that, in all circumstances whatever, whether the plaintiff knew of and authorized the suit or not, whether the defendant waived the defect or not, and notwithstanding Section 578 of the Code, an unsigned plaint is necessarily waste paper, and a Court of appeal is at liberty to treat the suit as no suit at all, then, with the greatest respect for the learned Judge, I cannot agree with him. The last case on the point to which I need refer is the case of Marghub A hmad v. Nihal Ahmad Weekly Notes, 1899, p. 55. In that case not only did the defendant make no objection that the plaint was not duly signed, but he expressly stated that he desired the suit to be disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damages, and that this appeal should be dismissed with costs. Knox, J. 4. I too am of the same opinion, namely, that although the plaint in the case in which this appeal arises was not signed by the plaintiffs as required by Section 51 of the Code of Civil Procedure, the circumstances of the case raise a proper presumption that the plaintiffs have been privy to the suit throughout. 5. As the learned Chief Justice has pointed out the plaintiffs were represented by an advocate of this Court. The appearance in and prosecution of the suit by such advocate can be and must be taken to be an appearance by the plaintiffs themselves, especially as it was never suggested until the case came before the Court in Second Appeal that there could be any doubt upon the matter at all. 6. In First Appeal No. 170 of 1895, decided on the 22nd July 1898, a decision of which I was one of the Judges, and which more-over is a stronger case, inasmuch as it was a case in which the plaintiffs were not represented in the Court of First Instance by an advocate, my brother Banerji and myself were prepared to hold that the plaint might even in the appellate stage be amended and rectified. Marghub Ahm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
